Conditions and duration of detention in a reception center for immigrants in Greece

JUDGMENT 

J.R. and others v. Greece 25.01.2018 (no. 22696/16)

see here

SUMMARY

Complaint of immigrants for detention conditions and duration of detention in a reception center and identification of migrants while applying for asylum. Infringement of Article 5 § 2 (right to be informed immediately of the charges) because, despite the fact sheets, they were not fully informed of the reasons for the detention. No violation of Article 5 (1) (f) (right to liberty and security) and Article 3 (prohibition of torture and inhuman or degrading treatment), due to a necessary and not excessive detention, and the circumstances were the result of Greece’s then unfavorable situation.

PROVISIONS 

Article 5 § 1

Article 5 § 2

Article 3

PRINCIPAL FACTS 

The applicants, Mr J.R., Ms N.R. and Mr A.R., are Afghan nationals who were born in 1990, 1994 and 1989. The first two are brother and sister, while Mr A.R. is the boyfriend of Ms N.R.
On 21 March 2016 the three applicants, together with the two children of Ms N.R., aged 4 and 7, arrived on the island of Chios, where they were arrested and placed in the VIAL centre (migrant reception, identification and registration centre in a disused factory, known by its acronym VIAL).

They remained in the centre until September 2016 (J.R.) and November 2016 (N.R. and A.R.). In the meantime they applied for asylum.

Between 21 March and late April 2016, after the entry into force of the EU-Turkey Declaration (an agreement concerning the return of irregular migrants from Greece to Turkey), the centre had to cope with large numbers of new arrivals, bringing the total number of occupants to over 2,000 – more than double its capacity. The overcrowding entailed poor living conditions, according to the applicants and partly confirmed by reports of visits by various organisations including Human Rights Watch, the European Committee for the Prevention of Torture (CPT) and the Hellenic Council for Refugees: there was insufficient food, a lack of hygiene, the water supply was often cut off, and medical care and legal assistance were scarce.

THE DECISION OF THE COURT 

Article 5 § 1 (right to liberty and security)

The Court noted that on 21 April 2016 the “Vial” Centre had been converted into a semi-open centre and that the applicants could therefore go out during the day. It concluded that the applicants’ detention in the centre between 21 March and 21 April amounted to deprivation of liberty, whereas after that date they were subject only to a restriction of movement.
The Court considered that the situation in question fell within the scope of Article 5 § 1 (f) of the Convention. The applicants had been detained with a view to their deportation, the aim being to prevent them from remaining in Greece unlawfully and to identify and register them as part of the implementation of the “EU-Turkey Declaration”. It noted that the applicants’ deprivation of liberty was based on section 76 of Law no. 3386/2005 and was intended first of all to guarantee the possibility of their removal. It observed that a detention period of one month should not be considered excessive for the purposes of the necessary administrative formalities. Lastly, it noted that the applicants had been released one month and ten days after expressing their wish to apply for asylum.

The Court therefore found that the applicants’ detention had not been arbitrary and that it could not be regarded as “unlawful” within the meaning of Article 5 § 1 (f). There had not, therefore, been a violation of this provision.

Article 5 § 2 (right to be informed promptly of the charge)

The Court found it likely that, while the applicants could have been aware that they had entered Greece unlawfully, they might not have known that their situation was covered by the “EU-Turkey Declaration”, signed the day before their arrest. It noted that, even if they had received an information leaflet, as the Government had stated, its content was not such as to provide them with sufficient details about the reasons for their arrest or the remedies available to them.

The Court thus found that there had been a violation of Article 5 § 2 of the Convention.

Article 3 (prohibition of torture and inhuman or degrading treatment)

The Court noted that the facts in question occurred at the time of an exceptional and sharp increase in migratory flows in Greece, which had created organisational, logistical and structural difficulties. It reiterated that, in view of the absolute nature of Article 3, the factors associated with an increasing influx of migrants could not absolve States of their obligations to ensure that all persons deprived of their liberty were held in conditions compatible with respect for human dignity. It observed that several NGOs had visited the centre and confirmed some of the applicants’ allegations concerning its general condition.

The Court found that the CPT had not been particularly critical of the conditions prevailing in the centre, particularly as regards the aspects that could have concerned the applicants’ situation. Its criticisms had focused mainly on medical care, the lack of adequate information and legal assistance and the poor quality of drinking water and food. It was apparent from the file that those problems were not such as to affect the applicants excessively in terms of Article 3 of the Convention. The Court also noted that the applicants’ detention had been short, namely thirty days. It therefore considered that the threshold of severity required for their detention to be characterised as inhuman or degrading treatment had not been reached. There had not, therefore, been a violation of Article 3.

Article 34 (right of individual application)

The Court reiterated that it was in principle not appropriate for the authorities of a respondent State to enter into direct contact with an applicant in connection with his or her case before the Court, although not all enquiries by authorities about a pending application could be regarded as a measure of intimidation. The summons and questioning to which J.R. was subjected concerned the gathering, for the preparation of the Government’s observations to the Court, of information on the applicants’ residence after leaving the centre and on their representation. In the Court’s view, there was nothing to suggest that the aim of the interview had been to persuade the applicants to withdraw or amend their application or to hinder them in the effective exercise of their right of individual application, nor was there any indication that it had had such an effect.
The Court found that the respondent State had not failed to fulfil its obligations under Article 34.

Just satisfaction (Article 41)

The Court held that Greece was to pay the applicants 620 euros (EUR) each in respect of non-pecuniary damage, and awarded EUR 1,000 to the applicants jointly in respect of costs and expenses (echrcaselaw.com editing).


ECHRCaseLaw

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