Information of the Afghan immigrants in the island of Chios in Greek that they could appeal against deportation to an administrative court without specifying which court was i and where it was, since in Chios such a court did not exist. Violation of the ECHR
JUDGMENT
O.S.A. and others v. Greece 21.03.2019 (no. 39065/16)
SUMMARY
The case concerned the applicants’ conditions of detention in the Vial centre on the island of Chios,
and the issues of the lawfulness of their detention, the courts’ review of their case, and the
information provided to them.
The Court considered that, in view of the circumstances, the applicants had not had access to
remedies by which to challenge the decisions ordering their expulsion and the extension of their
detention. The applicants were Afghan nationals who understood only Farsi and they had had no
lawyers to assist them. The documents issued to them by the authorities had been written in Greek
and had not specified which administrative court had jurisdiction.
As in the case of J.R. and Others v. Greece (no. 22696/16), the Court held that the applicants’
detention had nevertheless been lawful and that the threshold of seriousness for it to be
characterised as inhuman or degrading treatment had not been attained.
PROVISIONS
Article 5
Article 3
PRINCIPAL FACTS
The applicants, O.S.A., M.A.A., A.M. and A.A.S., are Afghan nationals who were born in 1967, 1990,
1982 and 1968 respectively.
On 21 March 2016 the four applicants arrived on Chios with their families. They were arrested and
placed in the Vial centre for the reception, identification and registration of migrants. On the same
day the Chios chief of police ordered the applicants’ detention. On 24 March 2016 he ordered their
expulsion and the extension of their detention pending expulsion for a maximum six-month period.
Those decisions, written in Greek, were served on the applicants the same day.
On 4 April 2016 the applicants stated their intention to apply for asylum. On 22 April and 7 May 2016
the police commissioner for the North Aegean decided to suspend the applicants’ expulsion until
consideration of their asylum applications was complete. The applicants were issued with receipts
valid as temporary registration certificates and the order prohibiting them from leaving the island of
Chios was lifted. As the third and fourth applicants did not report to the competent authorities on
the date set for the registration of their asylum applications, their applications were archived.
THE DECISION OF THE COURT
Article 5 § 4 (right to a speedy decision on the lawfulness of detention)
The issue to be addressed by the Court was whether the applicants could have lodged an appeal
unhindered on 24 March 2016, the date on which the decisions ordering their expulsion and the
extension of their detention were adopted.
In that connection the Court noted that the applicants, who were Afghan nationals, understood only
Farsi and that the decisions served on them had been written in Greek. Furthermore, it was not clear
that the applicants, who had not been assisted by a lawyer in the Vial centre, had sufficient legal
knowledge to understand the information brochure provided to them, and which referred in general
terms to an “administrative court” without specifying which one. In fact, there was no administrative
court on the island of Chios, where the applicants were; the closest court was on the island of
Lesbos. Lastly, the applicants had not been represented by a lawyer from the NGO present in the
centre. The Government did not supply any details of the procedure for obtaining legal aid and, in
particular, did not specify whether the number of lawyers and the funds available to the NGOs had
been adequate to meet the needs of all the occupants of the Vial centre, which at the relevant time
had housed over a thousand people.
Even assuming that the remedies had been effective, the Court did not see how the applicants could
have exercised them. It considered that, in the circumstances of the case, the legal remedies
in question had not been accessible to the applicants. There had therefore been a violation of
Article 5 § 4.
Article 5 § 2 (right to be informed promptly of the charges)
In view of its finding concerning Article 5 § 4, the Court considered it unnecessary to examine the
complaint from the standpoint of this provision.
Article 5 § 1 (right to liberty and security)
The Court observed that it had previously examined the lawfulness of the detention of
asylum-seekers in the Vial centre, in its judgment in J.R. and Others v. Greece (no. 22696/16). In that
case the Court had found that the applicants’ detention had not been arbitrary and could not be
considered unlawful for the purposes of Article 5 § 1 (f) of the Convention.
The Court noted that the applicants in the present case had been detained for one month, from
21 March to 21 April 2016, in the same circumstances as the applicants in J.R. and Others, and that
they had been released no more than one month after stating their intention to apply for asylum.
The complaint was therefore manifestly ill-founded and had to be rejected.
Article 3 (prohibition of inhuman or degrading treatment)
The Court observed that it, in J.R. and Others, it had examined the conditions of detention in the Vial
centre and had found that there had been no violation of Article 3 regarding the same period of
detention. Like J.R. and Others, the present case was characterised by the shortness of the period for
which the applicants had been detained. They had been placed in the Vial centre on 21 March 2016,
and from 21 April 2016 onwards had been able to go out during the day and return at night, as the
centre had become a semi-open facility on that date.
As the applicants’ detention had lasted for thirty days, the Court considered that the threshold of
seriousness for it to be characterised as inhuman or degrading treatment had not been attained.
Just satisfaction (Article 41)
The Court held that Greece was to pay the applicants 650 euros (EUR) each in respect of
non-pecuniary damage and EUR 1,000 jointly in respect of costs and expenses(echrcaselaw.com editing).
