ECtHR - Tatishvili v. Greece, Application No. 26452/11
| Country of applicant: | Georgia |
| Court name: | European Court of Human Rights, First Section |
| Date of decision: | 31-07-2014 |
| Citation: | Tatishvili v. Greece (Application No. 26452/11), 31 July 2014 |
Keywords:
| Keywords |
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Detention
Description
"Restriction on freedom of movement through confinement that is ordered by an administrative or judicial authority(ies) in order that another procedure may be implemented. In an EU asylum context, this means confinement of an asylum seeker by a Member State within a particular place, where the applicant is deprived of his or her freedom of movement. This may occur during any stage of or throughout the asylum process, from the time an initial application is made up to the point of removal of an unsuccessful asylum seeker. In an EU Return context, Member States may only detain or keep in a detention facility a third-country national who is the subject of return procedures in order to prepare the return and/or carry out the removal process, in particular when: (a) there is a risk of absconding; or (b) the third-country national concerned avoids or hampers the preparation of return or the removal process. Any detention shall be for as short a period as possible and only maintained as long as removal arrangements are in progress and executed with due diligence." |
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Effective remedy (right to)
Description
A general principle of EU law now set out in Article 47 of the Charter of Fundamental Rights: "Everyone whose rights and freedoms guaranteed by the law of the Union are violated has the right to an effective remedy before a tribunal in compliance with the conditions laid down in this Article.” “[It] is based on Article 13 of the ECHR: ‘Everyone whose rights and freedoms as set forth in this Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.’ However, in Community law the protection is more extensive since it guarantees the right to an effective remedy before a court. The Court of Justice enshrined the principle in its judgment of 15 May 1986 (Case 222/84 Johnston [1986] ECR 1651; see also judgment of 15 October 1987, Case 222/86 Heylens [1987] ECR 4097 and judgment of 3 December 1992, Case C-97/91 Borelli [1992] ECR I-6313. According to the Court, this principle also applies to the Member States when they are implementing Community law. The inclusion of this precedent in the Charter is not intended to change the appeal system laid down by the Treaties, and particularly the rules relating to admissibility. This principle is therefore to be implemented according to the procedures laid down in the Treaties. It applies to the institutions of the Union and of Member States when they are implementing Union law and does so for all rights guaranteed by Union law.” |
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Inhuman or degrading treatment or punishment
Description
A form of serious harm for the purposes of the granting of subsidiary protection. The Trial Chamber of the International Criminal Tribunal for the Former Yugoslavia in Celibici defined cruel or inhuman treatment as ‘an intentional act or omission, that is an act which, judged objectively, is deliberate and not accidental, that causes serious mental or physical suffering or injury or constitutes a serious attack on human dignity.’ “Ill-treatment means all forms of cruel, inhuman or degrading treatment or punishment, including corporal punishment, which deprives the individual of its physical and mental integrity." |
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Reception conditions
Description
The full set of measures that Member States grant to asylum seekers in accordance with Directive 2003/9/EC. |
Headnote:
The European Court of Human Rights has held that the detention conditions in the Police Directors of the Aliens Directorate of Thessaloniki and Attica Aliens Directorate, where a Georgian national was held, amounted to inhumane treatment. However, the Court declined to accept that the individual’s right to liberty and security along with his right to judicially review the legality of his detention had been infringed.
Facts:
The applicant, a Georgian national, born in 1970, arrived in Greece with a two-month visitor’s permit. Mr Tatishvili applied for a residence permit, however, this was later refused due to suspected forgery. He was, subsequently, ordered to leave Greece within thirty days. Arrested in 2010 for failing to leave Greek territory within the deadline, Mr Tatishvili was taken into custody and held at the Thessaloniki immigration police premises. Upon lodging an asylum application and its later rejection, Mr Tatishvili was transferred to the Attica immigration department (Petrou Ralli) and later released from these premises in 2011.
In total, Mr Tatishvili claims that he was held in custody from 10 April to 5 August 2010 and from 26 May to 29 June 2012 on the premises of the Thessaloniki immigration police and from 6 August 2010 to 25 January 2011 on the premises of the Attica immigration department. Mr Tatishvili was released on 29 June 2012. He left Greece on 1 January 2013 and moved to Turkey.
Relying on Article 3 (prohibition of inhuman or degrading treatment), Mr Tatishvili alleged that the conditions of his detention on the above-mentioned premises had been inhuman and degrading. Under Article 5 (right to liberty and security), he complained that his detention pending removal had been illegal. He further alleged that he had had no meaningful or effective remedy with which to challenge the lawfulness of his detention.
Decision & reasoning:
Firstly, with regards to the Petrou Ralli centre, the Court recalled that it had already ruled in a previous judgment which concerned the same dates as the present case (Bygylashvili v Greece, no 58164/10, 25 December 2012) that the detention conditions in the centre were not in conformity with Article 3 requirements. In addition, reports from the CPT and UNHCR showed that detention conditions in Petrou Ralli had deteriorated since 2009 where a new law extending the maximum time limits for detention from 6 months to 12 for irregular migrants had come into force. The Court further made note of the Government’s own admission that the applicant was placed in a small cell with 5 other persons.
As regards the Aliens Directorate of Thessaloniki premises, the Court recalled that in the case Tabesh v Greece, detention any longer than three months violated Article 3. The ECtHR concluded a violation of Article 3 regarding the detention conditions that the applicant was faced with.
As regards the applicant’s complaint under Article 5 §1, the Court recalled that in accordance with Article 5(1)(f) detention would not be arbitrary if it met four conditions: (1) carried out in good faith; (2) closely connected to the purpose of preventing unauthorised entry to the country; (3) the place and conditions of detention were appropriate bearing in mind that the detainee was an asylum seeker rather than a suspected criminal; (4) the length of detention did not exceed that reasonably required for the purpose pursued. Thus, the Court held that the detention of the applicant aimed at preventing his irregular stay on the Greek territory and ensuring the removal. The Court concluded to a violation of Artcile 5(1)f.
Finally, on the applicant’s complaint regarding Article 5 §4, the Court ruled that the amendments in the Greek legislation enabled the competent national judge to decide on the lawfulness of detention. In addition, the Court noted that administrative tribunals from Piraeus and Thassaloniki reviewed the lawfulness of the detention and released the applicant in 2011. As for the detention in the Thessaloniki immigration police in 2012, the Court found the lawfulness of his detention was sufficiently motivated. Thus the Court held that the applicant’s rights under Article 5 §4 have not been breached.
Outcome:
Violation of Article 3 ECHR.
No violation of Article 5 para 1
No violation of Article 5 para 4.
Observations/comments:
For further information:
- Asylum Information Database (AIDA) (a project of ECRE in partnership with Forum Refugiés Cosi, the Hungarian Helsinki Committee and the Irish Refugee Council), Country Report: Greece
- ECRE & ICJ Joint Submissions to the Committee of Ministers of the Council of Europe in the case of M.S.S. v. Belgium and Greece (Application no. 30696/09)
Cited National Legislation:
| Cited National Legislation |
| Greece - Law n° 3386/2005 |
| Article 76 |
| Greece - Law N° 3900/2010 |
Cited Cases:
| Cited Cases |
| ECtHR - Baranowski v Poland, Application No. 28358/95 |
| ECtHR - Dougoz v. Greece, Application No. 40907/98 |
| ECtHR - Riad and Idiab v. Belgium, Application Nos. 29787/03 and 29810/03 |
| ECtHR - Ananyev et al. Russia, Application Nos. 42525/07 and 60800/08 |
| ECtHR - Ramirez Sanchez v. France [GC], Application No. 59450/00 |
| ECtHR - Horshill v. Greece, Application No. 70427/11 |
| ECtHR - Bygylashvili v. Greece, Application No. 58164/10 |
| ECtHR - C.D. and Others v. Greece, Application Nos. 33441/10, 33468/10 and 33476/10 |
| ECtHR - Mahdid and Haddar v. Austria, Application No. 74762/01 |
| ECtHR - Saadi v. United Kingdom, no. 13229/03, 29 January 2008 |
| ECtHR - Gebremedhin (Gaberamadhien) v France, Application No. 25389/05 |
| ECtHR - Samaras and others v. Greece, Application No.11463/09, UP |
| ECtHR - Aleksandr Makarov v. Russia, Application No. 15217/07, UP |
| ECtHR - Kanakis v. Greece (no 2), Application No 40146/11 (UP) |
| ECtHR - Novinskiy v. Russia, Application No 11982/02 (UP) |
| ECtHR - Maltabar and Maltabar v. Russia, Application No 6954/02 |
Other sources:
- Report to the Government of Greece on the visit to Greececarried out by the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) from 23 to 29 September 2008. http://www.cpt.coe.int/documents/grc/2009-20-inf-eng.htm
- Report Amnesty International 2010 – Greece http://www.amnesty.org/en/region/greece/report-2010
- UNHCR report 2010 on Greece http://www.refworld.org/pdfid/4cd8f2ec2.pdf