ECtHR – Mohamad v. Greece, Application no. 70586/11

Facts:

After being arrested for irregular entry into Greece, the applicant was examined by a FRONTEX officer who erroneously noted his age, declaring that he was an adult. He was ordered to leave the Greek territory on grounds of his irregular entry and the Prosecutor authorised his expulsion to Turkey. This decision was, however, not carried out as the Turkish authorities refused to accept the applicant. Re-confirming the decision to expel the applicant and considering that he would abscond, the Director of the Alexandroupoli police placed the applicant in detention at Soufli border post. Notwithstanding that the Greek Council on Refugees notified the Director of the applicant’s age, who was in fact under 18, the applicant was kept in detention and supposedly given information as to the reasons for his detention and rights in English. The applicant highlighted that he had neither been given an information brochure nor could understand English. 

After rectifying the discrepancy with the applicant’s age the police authorities notified the Prosecutor and suspended the expulsion order. Placed in a hospital to undergo examinations the applicant was nonetheless kept in Soufli border post for a period of 5 months. Upon reaching the age of majority the applicant complained of the duration and conditions of his detention, which the President of the Alexandroupoli Administrative Tribunal acceded to. The applicant was later released and given thirty days to the leave the territory, after which the return decision would be enforced if he had not left the country.  

Decision & reasoning:

Considering first the admissibility of the case, in which the Greek authorities advanced that the applicant had not exhausted all domestic remedies, the Court surmised that throughout the duration of detention the applicant was considered as an adult. Even where the erroneous age had been rectified the prosecutor did not place the applicant in a centre suitable for children nor had he introduced an appeal against the detention of the applicant at Soufli border post. Moreover, domestic legislation allowing for appeals against detention conditions did not offer any reasonable chance of success and presented no effective remedy (A.F. v. Greece no 53709/11)   

Noting that previous Court jurisprudence had highlighted inhumane treatment at Greek border posts, especially in Feres and Soufli, (M.S.S. v. Belgium and Greece (no 30696/09) and Greece and F.H. v. Greece, (no 78456/11)) as well as reports from the Committee for the Prevention of Torture, the Court surmised that nothing had changed since their jurisprudence and the publication of international reports to find anything other than a violation of Article 3. Considering the length of detention as well as conditions, the Court held that an Article 3 violation had occurred.

Turning next to the consideration of an Article 3 and 13  violation and the applicant’s submissions that there is a lack of judicial oversight in Greece throughout the whole detention period, including conditions, which had been raised in ECRE’s and the ICJ’s submissions to the Committee of Ministers on the execution of M.S.S v Belgium and Greece, the Court noted that Article 13 guarantees a right to an effective remedy for every arguable complaint. Moreover, according to McGlinchey and Others v. UK (no. 50390/99) this remedy must be effective in law and in practice.

Citing A.A v Greece (no 12186/08) where the Court had ruled that referral to a superior within the police department does not constitute an effective remedy, the Court further highlighted that no information was given as to the possibility of alerting the head of police of the complaints and the type of complaints that could, indeed, be submitted. Moreover, considering the release decision of the applicant taken by the Administrative Tribunal the Court advanced that no analysis of the conditions of detention had been undertaken, instead the only reason given for release was that the applicant’s brother lived in Germany. According to the Court this contradicts the requirements of an effective remedy when complaining of inhuman treatment, which requires a thorough investigation into the alleged cause of the violation (Egmez v. Cyprus, no 30873/96). The Court subsequently found a violation of Article 13 read in conjunction with Article 3.

Finally the Court considered the applicants submissions with regards to Article 5 para 1(f) and noted that the Article, according to the Court’s jurisprudence, requires that detention must be made in good faith, directly linked to a ground of detention, conditions must be appropriate and the length must not exceed what is reasonably necessary to meet the aim of detention (Mahmundi and Others v. Greece, no 14902/10). In this manner the applicant had not been placed in a centre tailored to his needs as an unaccompanied minor. In fact even after medical examinations were conducted and his correct age was noted he was still returned to Soufli border post and detained with adults. No explanation was given by the government as to why the applicant remained at Soufli instead of at an alternative accommodation suited to his needs. Secondly, after he became an adult and his suspended transfer order lifted, the Greek authorities nonetheless kept the applicant in detention, making no attempt to deport him. Thus, on these two points the Court confirmed that the right to liberty had been infringed.

Lastly, with reference to Article 5 para 2 and 4 the Court surmised that the applicant, through the Greek Council on Refugees, could seize the Administrative Tribunal and present argumentation as to the legality of his detention. The Court thus found no violation of these provisions. 

Outcome:

The Court found a violation of Article 3 as well as a violation of Article 13 read in conjunction with Article 3 and a breach of Article 5 para 1(f).

Observations/comments:

Observations and interventions

Both the applicant and the Court made reference to international documentation on the asylum procedure and detention conditions in Greece, notably at Soufli border post.  

In this regard focus was paid to the findings of the Committee for the Prevention of Torture, a UNHCR report on a visit to Greece in 2010 as well as the Greek National Commission for Human Rights who all documented the inhuman conditions within detention centres in Greece.

Moreover, attention was paid to the second joint detailed submission on the situation of detention, application procedures and remedies for asylum seekers in Greece to the Committee of Ministers of the Council of Europe by ECRE and the International Commission of Jurists. The submission focuses, amongst others, on the lack of an effective right to appeal against detention, due to an absence of information and legal advice. The Court cited the submission to highlight that domestic legislation in Greece does not expressly provide for the review of conditions of detention.