Case summaries

The detention conditions, to which the applicants had been subjected to in police stations, while being under protective custody as unaccompanied minors, violated Article 3 ECHR.  Violation of Article 3 in conjunction with Article 13 on account of the applicants’ inability to bring a complaint against the detention conditions.

Their placement in protective custody was an unlawful detention measure under Article 5, as there were no time limits, no vulnerability assessment and no consideration of this form of custody as one of last resort. The applicants had no possibility to exercise their rights under Article 5 (4), as they could not establish contact with their lawyer and the lack of official detainee status would have raised practical obstacles in any attempt to challenge their detention.

The Court indicated interim measures (under Rule 39) to Russia after the order of removal of a Syrian national who applied for asylum after the expiry of his student visa. Subsequently, the applicant applied to the Court against the Russian Federation claiming that Russia had breached his rights under Articles 2, 3, 5(1)(f) and 5(4) of the Convention.

The ECtHR ruled that there had not been a violation of Article 5(1) ECHR in the applicant’s detention at the VIAL hotspot, a day after the entry into force of the EU-Turkey Statement. It also ruled that the threshold of severity required for their detention conditions to be considered as inhuman or degrading treatment had not been reached.

However, the ECtHR found that Greece violated the applicant’s rights under Article 5(2) by not providing them with detailed, understandable information about the reasons for their detention and the remedies available to them.

The applicants although minors were detained in a detention facility where they were mixed with adults. The detention lasted until the Maltese government determined (in a process that took 8 months) that they were minors.

Moreover, the harsh conditions in the detention facilities amounted to inhuman or degrading treatment.

The Court ruled that there would be a breach of Article 3 if the applicant were expelled to Tajikistan, that there was a violation of Article 5(4) based on the thirty-five and the seventy days delay of the competent agency processing the translation of the relevant material for the applicant. Finally, the Court found that the detention was lawful and there was no violation of Article 5(1).

The Court held that detention is considered to be arbitrary within the meaning of Article 5 § 1 ECHR, if the length of the detention exceeds what is reasonable for the purpose pursued. It is to be examined whether the authorities have acted with ‘due diligence’.

In cases, such as the present, where the detention has been upheld for a long period, although lawfully, authorities are required to take additional steps in order to proceed with an asylum claim more speedily. When the detained person can be considered as ‘vulnerable’ a higher level of ‘due diligence’ can be expected from the authorities. Even if the asylum claimant complicates the examination of his claim by not providing sufficient evidence, the failure of the authorities to take initiative to end the asylum claim, results in a violation of Article 5 § 1 ECHR.

The Federal Supreme Court rules that the separate detention of families with minor children and the placement in a children’s home violates the right to family life in Art. 8 ECHR, if less intrusive measures than detention have not been taken into consideration.

The Judge of liberty and detention of the Toulouse Appeal Court considered that an extension of the applicant’s administrative detention could mean subjecting her to imminent forcible return to her country of origin, which was not compatible with articles 3 and 13 ECHR since a non-suspensive appeal against a decision rejecting the applicant’s asylum application was still pending and with sufficient grounds.

As a result, the Judge held that there was no reason to extend the duration of the applicant’s administrative detention.

Lack of prompt investigation of ill-treatment complaints may amount to a procedural violation of Article 3 ECHR. Detention conditions should follow certain standards and individuals should be kept in suitable establishments with enough allocated space.

The applicants’ detention under Article 5 (1) was arbitrary and did not ensure the principle of legal certainty; lack of information was contrary to Article 5 (2) and impaired their ability to challenge the detention decisions in violation of 5 (4). The conditions at the reception centre and the boats did not amount to a violation of Article 3, as the applicants’ stay was very short and there were not sufficient indications.

There was no violation of Article 4 Protocol 4, as the applicants have had a genuine and effective possibility during the entire procedure to raise concerns regarding obstacles to their return to Tunisia; there was similarly no violation of Article 4 Protocol 4 in conjunction with Article 13, since the applicants’ complain would solely relate on the collective nature of their expulsion and not to any real risk of treatment contrary to Article 2 & 3 in Tunisia.