ECtHR - R.U. v. Greece, Application No. 2237/08

Facts:

The Applicant, R.U., was born in 1969 and lives in Athens. He is of Kurdish origin and was arrested by the Turkish authorities several times between 1985 and 1992 on account of his political activities. He alleged that he had been sentenced to 15 years’ imprisonment and tortured while in prison. After going on hunger strike in detention, he started suffering from Wernicke-Korsakoff syndrome. He finished serving his sentence in 2007. After being released, and fearing a further arrest, he decided to leave Turkey and seek asylum in Greece.

On 12 May 2007, R.U. entered Greece and was arrested by the Greek authorities for illegal entry into Greece and possession of forged travel documents. He stated that he filed an asylum request as soon as he was arrested but that it had not been registered. On the same day the public prosecutor at the Criminal Court set the case down for hearing on 17 May 2007 and released the Applicant pending the hearing. However, R.U. was arrested again that day. On 13 May 2007 the head of the Alexandroupolis police headquarters, fearing that the Applicant would flee, ordered to place him in detention pending his deportation three days later.

R.U. alleged that he had made further applications for asylum on 13 and 15 May 2007 but that neither had been examined.

On 17 May 2007 R.U. was acquitted by the Alexandroupolis Criminal Court of the charges of illegally entering Greece and using forged travel documents. The court accepted that R.U. was a Turkish citizen, a member of an illegal left-wing political party, that he had been convicted and imprisoned in Turkey as a political detainee and that he had been forced to flee Turkey urgently because his life was endangered.

On the same day the head of the Alexandroupolis police headquarters ordered R.U. to be deported for illegal entry into Greece and possession of forged administrative documents. His detention was extended on grounds of a risk that he would abscond. On 22 May 2007 R.U. appealed against the deportation order to the regional director of the police. His appeal was dismissed on 24 May 2007 by a decision served on him in Greek, which he could not challenge because he lacked sufficient funds.

On 24 May 2007 R.U. complained against his detention before the President of the Alexandroupolis Administrative Court, who dismissed his complaint that day, considering that having regard in particular to his illegal entry into Greece and his asylum application, he did not appear to have the intention of leaving Greece if released.

On 6 June 2007 his asylum application was rejected by the Ministry of Public Order. On 12 June 2007 R.U. appealed against that decision. On 12 July 2007 the Advisory Committee on Asylum of the Ministry of Public Order adjourned the examination of the asylum application to an unspecified date so that R.U. could submit evidence in support of his asylum application and undergo an examination by the Medical Rehabilitation Centre for Torture Victims, a non-governmental organisation. The procedure in respect of the asylum application is pending.

In July 2007, R.U. repeated his objections to his detention, relying on the indefinite adjournment of the examination of his asylum application. On 16 July 2007 the President of the Alexandroupolis Administrative Court ordered his release.

R.U. was detained mainly (12 May 2007 - 10 July 2007) in the Soufli border police station. He claimed that he had been held in a dirty room with 50 other detainees, with one shower and a room used for the toilets. He added that he had never been able to have a shower or do any physical exercise, and that he had had no contact with the outside world because there had been no telephone booth. He alleged, lastly, that he had received no appropriate treatment for his medical condition. Between 10 and 16 July 2007 he had been held in the Attica Foreign Citizens’ Directorate (Petrou Ralli).

After his release, he was examined by the President of the Medical Rehabilitation Centre for Torture Victims. According to a medical report issued by the centre on 19 September 2007, R.U. had been systematically beaten and his left foot had been seriously injured. Gangrene had set in, so he had had to undergo surgery and have two toes on his left foot amputated. The report also documented acts of torture: contact with a red hot cable on his little finger, “Palestinian” hanging, twisting of the testicles and blows to the neck which had caused migraines and spasms. Neurological and orthopaedic examinations subsequently performed on the Applicant in State hospitals confirmed that part of his left foot had been amputated and that he was probably suffering from Wernicke-Korsakoff syndrome and a discal hernia. The deportation order against R.U. has not been executed.

Decision & reasoning:

Conditions of detention in Soufli and Petrou Ralli (Articles 3 and 13)

The Court first examined whether there had been remedies available to R.U. in Greece which he should have used in order to complain about his conditions of detention before lodging this complaint with the Court (Article 35, conditions of admissibility). It observed that this was not the case. The only remedy available to the Applicant was to apply to the hierarchical superior of the police, whose impartiality and objectivity in the matter were open to doubt. R.U.’s complaint about his conditions of detention was the same and concerned the same period as the one examined by the Court in another case, in which the Court had held that there had been a violation of Article 3 on account of the general conditions of detention prevailing in the Soufli and Petrou Ralli detention centres. It came to the same conclusion in the case of R.U.: there had been a violation of Article 3.

As there were no remedies in Greece enabling him to complain about his conditions of detention, there had also been a violation of Article 13.

Risk of deportation to Turkey as a result of deficiencies in the asylum procedure (Articles 3 and 13)

The Court observed that a remedy had to provide a careful scrutiny by a national authority, an independent and rigorous examination of any complaint that there were reasons to believe that treatment contrary to Article 3 had been inflicted, and the complaint had to be examined with particular speed. The remedy also had to be of automatic suspensive effect. The Court pointed out that it had found before that Greece’s asylum legislation was not being applied in practice and that the asylum procedure was marked by such major structural deficiencies that asylum seekers had very little chance of having their applications and their complaints under the Convention seriously examined by the Greek authorities. Some of those deficiencies were apparent, moreover, in the case of R.U., whose asylum application had been dismissed at first instance by a decision drafted in stereotypical terms, his appeal against which was still pending today, three years and over seven months later. The Court pointed out that neither an application for a stay of execution nor a request for an interim order were of automatic suspensive effect. R.U. had not therefore had an effective remedy, either in the deportation or the asylum proceedings, by which to complain of his deportation to Turkey.

The Court attached importance to the fact that the country to which R.U. was to be deported – Turkey – was a State Party to the Convention that had accordingly undertaken to respect the right to life and the prohibition of inhuman or degrading treatment. The Court could not, however, base its assessment on that fact alone. It had to take account of the concrete information in the file. It noted that in its report of 19 September 2007 the Medical Rehabilitation Centre for Torture Victims had confirmed that R.U. had been tortured while serving his prison sentence in Turkey. The Court considered that R.U. had thus submitted probative evidence in support of his asylum application in Greece, based on the fact that, in the past, he had been subjected to acts that could be characterised as contrary to Article 3 of the Convention. As his asylum application was still pending, and given the situation of asylum seekers in Greece, R.U. had then been, and was still now, at risk of being sent back to Turkey without having the opportunity of his asylum application being properly examined, despite there being substantial grounds for believing that he would be subjected to treatment contrary to Article 3 of the Convention if sent back there. The Court concluded that there had been a violation of Article 13 taken in conjunction with Article 3.

Article 5 § 1 (f)

The Court reiterated that the conditions for deprivation of liberty must be clearly defined under domestic law and that the law itself must be foreseeable in its application. Furthermore, in order not to be arbitrary, the detention of a person “to prevent his effecting an unauthorised entry into the country or against whom action is being taken with a view to deportation or extradition” must be done in good faith.

R.U.’s deprivation of liberty was based on Law no. 3386/2005 and was intended to guarantee the possibility of deporting him. The Court pointed out in that connection that Greek law only permitted detention with a view to deportation where that deportation could be executed. It also observed that, both under Greek law and international law, an asylum seeker could not be deported until his or her application had been definitively dealt with. That had been the situation of R.U. (asylum application pending) and when the President of the Alexandroupolis Administrative Court had decided on 15 May 2007 to keep him in detention, he had been aware of the position because he had expressly referred to the asylum application. Accordingly, there had been a violation of Article 5 § 1 (f) from 15 May 2007.

Possibility of obtaining a decision from a Greek court on the lawfulness of the detention (Article 5 § 4)

The Court noted the inadequacies of Greek law regarding the effectiveness of judicial review of detention with a view to expulsion and had concluded that they did not meet the requirements of Article 5 § 44.

Neither section 76 of Law no. 3386/2005, nor an application to the Minister of Public Order for judicial review of a deportation order, nor indeed an interim order deferring enforcement of the removal measure gave the court power to examine the lawfulness and appropriateness of a decision to maintain a person in detention with a view to his or her expulsion. In any event, the judges who had dealt with R .U.’s case had not examined the question. There had been a violation of Article 5 § 4.

Outcome:

Violations of Article 3, 5, 13

15,000 euros (EUR) in respect of non-pecuniary damage

Other sources:

• Report published in April 2008 by the Athens Office of the United Nations High Commissioner for Refugees;
• Report of the Commissioner for Human Rights of the Council of Europe following his visit to Greece from 8 to 10 December 2008;
• CPT report published June 30, 2009 following the visit to Greece from 23 to 29 September 2008;
• Report "Left to survive. Systematic failure to protect unaccompanied migrant children in Greece " published in 2008 by Human Rights Watch.