ECtHR - Sh.D. and others v. Greece, Austria, Croatia, Hungary, Northern Macedonia, Serbia and Slovenia (no. 141165/16)

Facts:

The case concerns five unaccompanied Afghan minors (aged between 14 and 17) of Hazara ethnic origin who fled Afghanistan due to fear of Taliban attacks. The applicants entered Greece in early 2016 where they were apprehended by domestic authorities and were issued with an expulsion order. The attempted to cross between Greece and North Macedonia.

Applicant number 1 was arrested at Axiopoli border and placed in protective custody before being transferred to a reception centre for unaccompanied minors. Applicants 2 to 5 travelled from Greece to the Idomeni region where they were housed in a temporary camp. The conditions in this camp were very poor: there were no sanitary facilities and the surrounding areas were covered in excrement.

In March 2016, applicants 2 to 5 were taken to Athens Central Asylum Service to make an application for international protection. No reception centre was available at the time, resulting in the applicants sleeping in a park before moving to another temporary structure.

In April 2016, the applicants refused to leave for the Malakasa refugee camp emergency reception facility as they argued that the living conditions were unsuitable based on their status as unaccompanied minors. From May 2016, the applicants moved to a squatted hotel in the centre of Athens. In July 2016, applicants 3-5 arrived for an asylum interview which did not take place as there was no interpreter provided. Following this applicants 3-5 were placed in facility for unaccompanied minors. The applicants claimed to have very limited access to food and were constantly hungry.

In July 2016, applicant 5 was diagnosed with tubercular pleurisy and returned to the facility for unaccompanied minors in August. Meanwhile, in August 2016, applicants 3 and 4 were transferred to a different structure for unaccompanied minors in Hellon. The applicants complained that the conditions were very dirty with bad food, and so they decided to leave. Applicant 2, after attempting to travel to Italy by boat, was apprehended by border guards and placed in protective custody in Greece. In August he made several suicide attempts and was placed in protective police custody. He 34 days in a small cell before he was allowed to transfer to a specialised hospital.

In September 2016, applicant 3 underwent an age assessment. The prosecutor for protection minors ordered him to leave after he was assessed to be 19. On appeal, the applicant was allowed to remain. In December 2016, applicant 4 was arrested and placed in protective custody. During this time he had very limited food and water, was unable to shower, and slept on a mattress on the floor. When released, he returned to living on the streets.

Applicants number 2 and 3 were granted refugee status in January 2017 and October 2016 respectively. 

Decision & reasoning:

Admissibility

The Court first ruled on the preliminary question raised by the State. The Greek government contested the powers of representation filed before the Court which was thus make the application invalid. The Court found that the applicants had given clear instructions to their representative and that there were no doubts that the application was validly filed.

The Court found that the complaints raised under Article 3 and 5 were not manifestly ill founded within the meaning of Article 35 (3) (a).

Merits

Article 3: Living Conditions in camps and detention

Regarding detention in police facilities, the Court noted that conditions in police custody are isolating and not suitable for prolonged detention. Such conditions could indeed have negative impacts on physical and mental health of the applicants, particularly as unaccompanied minors. Detaining unaccompanied minors in police custody without psychological and social support was unacceptable. 

The Court noted that applicants 2-5 were not detained in the Idomeni camp and were free to leave but had stayed in the hope of securing family reunification. Nevertheless the Court noted the State’s obligations under the ECHR and Article 20 CRC to provide care for unaccompanied foreign minors. Indeed, the child’s extreme vulnerability should prevail over irregular status with necessary measures adopted to protect them. This obligation to protect should have been automatically imposed. While the camps were made by refugees themselves, the Court noted that the deplorable living conditions were at least attributable to the State’s slow response to address the humanitarian crisis. Following the arrest of the applicants, the prosecutor responsible for minors should have been informed of the presence of the applicants in the national territory, and measures should have been taken to transfer them to an appropriate reception facility. The applicants had therefore lived for one month in the Idomeni camp in conditions contrary to their status as unaccompanied minors. The Court concluded that domestic authorities had not done all that could reasonably expected to fulfil their obligation in light of their vulnerability. There had therefore been a violation under Article 3 for applicants 2-5 in respect to the Idomeni camp conditions.

Article 5: Detention in police custody

The Court went on to consider the applicants complaints regarding the lawfulness of their deprivation of liberty. The Court considered that applicants 1, 2 and 4 were deprived of their liberty.

It noted that the domestic authorities had automatically applied Article 118 of Decree No. 141/1991 providing for protective custody. This legislation was not designed to apply to unaccompanied migrant minors and does not set a fixed time limit. Moreover, Directive 2005/85/EC states that authorities must avoid detention of minors. This is further established in Article 32 Act No. 3907/2011 states that unaccompanied minors should only be detained as a last resort.

Furthermore, in light of obligations under Article 3 CRC, the domestic authorities should have considered the best interests of the child in this decision and sought alternative accommodation.

The detention of the applicants was therefore not lawful under Article 5(1) ECHR. 

Outcome:

Violation of Article 3 of the Convention in respect of the living conditions of the applicants listed under numbers 2 to 5 in the Idomeni camp;

Violation of Article 5 § 1 of the Convention in respect of the applicants listed under numbers 1, 2 and 4.