ECtHR - Mahammad and Others v. Greece, Application no. 48352/12, 15 April 2015

Facts:

The facts of the case relate to 14 applicants who at different times between 20 November 2011 and 4 January 2012 entered the Greek territory in an irregular manner. By different decisions, the director of the Police Directorate of Orestiada, ordered the expulsion of the applicants and their retention for a period which might not exceed six months in the detention centre of Fylakio. At different dates between 17 December 2011 and 8 March 2012, the applicants submitted asylum applications. On the same dates, the Police Director of Orestiada ordered the continuation of the applicants’ detention, for a period not exceeding 90 days, until a decision on their asylum claims were reached. The decisions specified that the applicants were deprived of travelling documents necessary for the verification of their identity and the conditions of their entrance in Greece and that their retention was imposed for the quick and effective examination of their asylum claims.

The applicants alleged breaches of Articles 5 and 3 of the Convention. As for Article 5, they pleaded the illegality of the expulsion decision. As for Article 3, they emphasized that their conditions of detention were unacceptable: there was no opportunity to go outside the building, hygiene and food were deplorable and the number of prisoners per cell exceeded normal capacity.

Decision & reasoning:

Taking cue from reports of international as well as national bodies (CPT, UNHCR, Ombudsman, and the Greek Council for Refugees) following their visits to the detention centre of Fylakio at periods close to those of the applicants’ detention, the Court noted that they all reported the serious and permanent overcrowding of the centre, forcing many detainees to sleep on the floor. In addition, the dormitories, beds and washing facilities were in serious disrepair; it was impossible for prisoners to leave the building except in exceptional cases and for a very short duration; personal hygiene products were rare; according to some accounts, the food seemed to be insufficient [24-38].

The Court also noted that the renovation and improvement facilities to the centre claimed to have been done by the Greek Government, had or were to take place after the release of the applicants. Therefore, it considered that the applicants were detained in conditions of overcrowding and poor hygiene, incompatible with Article 3 of the Convention.

Referring to Chalal v. the United Kingdom (Application no. 22414/93), the Court reiterated that under article 5 para 1 (f), only the progress of the deportation proceedings justifies the deprivation of liberty. Therefore, the Court examined the legality of the detention of the applicants. It declared that according to the Greek law (article 13 of the decree 114/2010), foreigners are detained in view of their expulsion and in case of asylum applicants, they are detained when, between others, they do not have travelling documents or had destroyed them and they are necessary for the verification of their identity, entry conditions, their origin, especially in case of massive arrival of irregular foreigners, as was the case of the applicants. The priority clause in the examination of asylum claims predicted by national law was also respected. In view of the above mentioned, the Court concluded that the applicants’ detention was not arbitrary and therefore could be considered as "lawful" within the meaning of Article 5 para 1 (f) of the Convention.

In addition, the Court revealed that the President of the Administrative Court found the applicants’ allegations about their detention conditions to be inadmissible on the grounds thatobjections to detention were only examining the legality of the detention decision itself and could not lead to the release, due to bad conditions of detention of persons whose detention was justified by their danger to public order or the risk of absconding. Given these statements, categorically excluding any controls on the conditions of detention related grievances, despite the provisions of Article 76 § 5 as amended by article 55 of the law 3900/2010, and the recent case law of administrative courts –examining other aspects of the lawfulness of detention - the Court considered that in this case, the applicants did not benefit from a review of the legality of their detention. There had therefore been a breach of article 5 para 4 of the Convention.

Outcome:

Violation of Article 3 of the Convention concerning detention conditions in Fylakio detention centre

Violation of Article 5 para 4 of the Convention with regards to access to proceedings  questioning the lawfulness of their detention

Other sources: