The Greek adventure of minor refugees. Degrading conditions of detention in police stations

JUDGMENT 

Sh.D and  Others v. Greece, Austria, Croatia, Hungary, North Macedonia, Serbia and Slovenia (no. 14165/16)

see here

SUMMARY

Detention conditions for minors and degrading treatment. Detention conditions in Greece, five unaccompanied minors from Afghanistan. With regard to the complaints against Greece under Articles 3 and 5 § 1 of the ECHR, the Court considered that the conditions of detention of three of the applicants in various police stations were degrading treatment, observing that their detention there was likely to cause them feelings of isolation from the outside world, with potentially negative effects on their physical and mental well-being. The Court held that the authorities had not done what could reasonably be expected of them in order to fulfill their obligation to protect four of the applicants who had lived for a month in the camp at Idomeni in an environment unsuitable for adolescents. That obligation was incumbent on the Greek State with regard to persons who were particularly vulnerable because of their age.

The Court held that the placement of these three applicants in the police stations amounted to a deprivation of
liberty as the Greek Government had not explained why the authorities had first placed the applicants in police stations – and in degrading conditions of detention – rather than in alternative temporary accommodation. The detention of those applicants had therefore not been lawful.

The ECtHR unanimously declared the accusations against Austria, Croatia, Hungary, Northern Macedonia, Serbia and Slovenia unacceptable as manifestly unfounded.

PROVISIONS 

Article 3

Article 5

PRINCIPAL FACTS 

The applicants are five Afghan nationals who entered Greece as unaccompanied migrant minors in
2016, when they were between 14 and 17 years of age. They alleged that they had fled Afghanistan
because they feared for their lives as members of the Ismaili religious minority.

In February 2016 they were apprehended by the police. Orders were made for their deportation and
they were given one month to leave Greek territory. Some of them attempted to cross the border
between Greece and North Macedonia but were stopped by the border guards. Sh.D. was arrested
by the Greek police and placed in “protective custody” at Polykastro police station for 24 days. A.A.,
S.M., M.M. and A.B.M. were arrested on the island of Chios and their deportation was ordered; they
subsequently crossed to the Greek mainland and made their way to Idomeni, a settlement on the border between Greece and North Macedonia. For approximately one month they were accommodated at the makeshift camp in Idomeni.

In March 2016, accompanied by their lawyer, they were escorted to the Central Asylum Service in
Athens to apply for asylum. In May 2016 they moved into a squatted hotel in the centre of Athens. In
July 2016 S.M., M.M. and A.B.M. were taken into the Faros shelter for unaccompanied minors, a
facility operating under the supervision of the Norwegian Embassy and the International
Organization for Migration. In August 2016 S.M. and M.M. were transferred to the Mellon special
facility for unaccompanied minors, run by the Office of the United Nations High Commissioner for
Refugees (UNHCR). In December 2016 M.M. was arrested by the police on account of his status as a
minor and was placed in “protective custody” for eight days. A.A. hid under a lorry in an attempt to
reach Italy but was arrested and likewise placed in “protective custody” in July 2016 at Igoumenitsa
Port police station, and later, after a suicide attempt, at Filiata police station. S.M. and A.A. were
granted refugee status in October 2016 and January 2017 respectively.

THE DECISION OF THE COURT

Article 3 (prohibition of inhuman or degrading treatment)

1. The police stations

The Court stressed that the police stations had features that were liable to give those detained there
a feeling of solitude (no outdoor access to take a walk or have physical exercise, no internal catering
arrangements and no radio or television to allow contact with the outside world) and were unsuited
to prolonged detention. Hence, being detained there was apt to arouse in the persons concerned
feelings of isolation from the outside world, with potentially negative repercussions on their physical
and mental well-being. Consequently, the conditions of detention to which three of the applicants
had been subjected in various police stations amounted to degrading treatment. The Court
therefore found a violation of Article 3 of the Convention.

2. The Idomeni camp

The Court noted that four of the applicants had spent around one month in the Idomeni camp, with
the aim of travelling on to Germany or Switzerland in order to join other family members. They had
not been in detention, having themselves chosen to go there, and could leave at any time. The
applicants in question stated, among other things, that the camp, with a capacity of 1,500, had
housed 13,000 people and had no sanitation.

According to the Court’s case-law, States Parties to the Convention were required to protect and
provide for unaccompanied foreign minors. More specifically, in cases concerning the reception of
foreign minors, whether accompanied or unaccompanied, it had to be borne in mind that the child’s
extreme vulnerability was the decisive factor and took precedence over considerations relating to
the status of illegal immigrant. Thus, the obligation to provide for and protect the applicants was apt
to be imposed automatically on the domestic authorities.

The Court was conscious of the fact that the Idomeni camp (a makeshift camp set up by refugees
themselves) was wholly outside the control of the State authorities. The camp’s occupants lived in a
very precarious situation, in deplorable physical conditions, and were dependent for their survival on
the assistance given by the non-governmental organisations present at the site. The expansion of
the camp and the worsening of living conditions there were attributable to some extent to the time
taken by the State to dismantle the camp and especially to the fact that the State itself had not
provided the resources needed to alleviate the humanitarian crisis that had been ongoing since the
camp was set up. The efforts of a few non-governmental organisations alone were not sufficient to
tackle the scale of the problems.

The Court also noted that Article 19 of Decree no. 220/2007 on unaccompanied minors required the
competent authorities, among other things, to inform the prosecutor with responsibility for minors
or the prosecutor at the first-instance court with territorial jurisdiction, who acted as a temporary
guardian and took the necessary steps to appoint a guardian. However, the authorities which had
originally arrested the applicants concerned on the island of Chios had released them in a bid to
ensure that they left the country within one month, and there was nothing in the case file to indicate
that a prosecutor had been informed of their presence in the country. Had the prosecutor been
informed, he or she would have had to take the necessary steps to have the applicants transferred
to an appropriate reception facility and ensure that they did not have to live for several days in an
environment that was patently unsuitable for unaccompanied minors. The applicants in question
had thus spent one month in the Idomeni camp, in an environment unsuitable for adolescents – in
terms of security, accommodation, hygiene and access to food and care – and in precarious
circumstances incompatible with their young age.

Consequently, the Court was not persuaded that the authorities had done everything that could
reasonably be expected of them to fulfil the obligation to provide for and protect the applicants in
question, an obligation that was incumbent on the respondent State with regard to persons who
were particularly vulnerable because of their age. There had therefore been a violation of Article 3
of the Convention on account of the living conditions of these four applicants.

Article 5 (right to liberty and security)

The Court considered that the placement of three of the applicants in police stations amounted to a
deprivation of liberty. It noted that the authorities had automatically applied Article 118 of Decree
no. 141/1991 providing for “protective custody”. That instrument had not been designed with
unaccompanied migrant minors in mind and did not establish any time-limits; situations could thus
arise in which the detention of unaccompanied minors was extended for quite long periods. The
Court also pointed out that Decree no. 114/2010 stipulated that the authorities should avoid
detaining minors. Furthermore, Law no. 3907/2011 provided that unaccompanied minors should be
placed in immigration detention only as a last resort and for the shortest time possible. Lastly, Article 3 of the 1989 United Nations Convention on the Rights of the Child placed States under an imperative duty to take the best interests of the child into consideration in any decisions concerning him or her. Accordingly, the Court considered that the Government had not explained why the authorities had first placed these three applicants in police stations, in degrading conditions of detention, rather than in alternative temporary accommodation. The applicants’ detention had therefore not been lawful and there had been a violation of Article 5 § 1 of the Convention.

Just satisfaction (Article 41)

The Court held that Greece was to pay 4,000 euros (EUR) to one applicant and EUR 6,000 each to
four applicants in respect of non-pecuniary damage, and EUR 1,500 to the applicants jointly in
respect of costs and expenses(echrcaselaw.com).


ECHRCaseLaw

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