FIRST SECTION
DECISION
Application no. 76854/11
Paul JOSEF and others
against Greece
The European Court of Human Rights (First Section), sitting on 24 January 2017 as a Committee composed of:
Ledi Bianku, President,
Linos-Alexandre Sicilianos,
Aleš Pejchal, judges,
and Renata Degener, Deputy Section Registrar,
Having regard to the above application lodged on 27 October 2011,
Having regard to the formal declarations accepting a friendly settlement of the case in respect of the eighth to eleventh applicants,
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicants,
Having deliberated, decides as follows:
THE FACTS
1. The case originated in an application (no. 76854/11) against the Hellenic Republic lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by eleven applicants of Nigerian and Dominican nationality (“the applicants”), whose names appear in the annexed list. The applicants were represented before the Court by Mr K. Tsitselikis, a lawyer practising in Thessaloniki.
2. The Greek Government (“the Government”) were represented by their Agent’s delegates, Ms A. Dimitrakopoulou and Ms A. Magrippri, Senior Adviser and Legal Representative respectively to the State Legal Council.
A. The circumstances of the case
3. The facts of the case, as submitted by the parties, may be summarised as follows.
1. The applicants’ arrest and the procedure concerning their expulsion
4. The applicants left their respective countries of origin on unspecified dates. They arrived in Greece via the River Evros in Thrace on the following dates: the first applicant on 7 March 2011; the second and third applicants on 9 March 2011; the fourth applicant on 12 April 2011; the fifth applicant on 14 May 2011; the sixth applicant on 21 April 2011; the seventh applicant on 18 June 2011; and the eighth to eleventh applicants on 16 May 2011. On those dates, they were arrested by the Greek police authorities for illegally entering the Greek territory and placed in detention in the Fylakio Migrant Detention Centre (in the village of Kyprinos).
5. A few days after their arrests, on 10 March, 12 March, 15 April, 17 May, 24 April, 23 June and 19 May 2011 respectively, the Orestiada Chief of Police ordered the applicants’ expulsion and their placement in detention for a period of no longer than six months on the grounds that there was a risk of their fleeing.
6. On an unspecified date, the eighth to eleventh applicants lodged objections against their detention with the president of Alexandroupoli first-instance administrative court (Διοικητικό Πρωτοδικείο Αλεξανδρούπολης), pursuant to Article 76 § 3 of Law no. 3386/2005. They complained, inter alia, about the conditions of their detention at the Fylakio Migrant Detention Centre. On 7 July 2011 their objections were rejected by the president of the first-instance administrative court, who considered that the applicants posed a danger to public order as they could make their living only by illegal means due to their lack of a valid residence permit (under decision no. 167/2011, which ruled that their detention should continue). As regards the conditions of their detention, the president of Alexandroupoli first-instance administrative court dismissed their complaint as inadmissible and considered that, in any case, the applicants were represented by a lawyer and could thus achieve an improvement in the conditions of their detention by addressing the relevant authorities.
7. The first to seventh applicants did not raise objections against their detention as they considered that any such objections would not be effective. They also argued that, in any event, they lacked the financial means to submit such objections.
8. On 24 June 2011 the applicants lodged a complaint with the director of the Fylakio Migrant Detention Centre requesting the immediate termination of their detention and an improvement in the conditions of their detention.
9. After lodging requests for asylum, the first applicant was released on 3 August 2011, the second and the third on 3 September 2011, the fourth on 14 July 2011, the fifth on 5 October 2011 and the sixth on 29 July 2011. The seventh applicant was released on 11 October 2011, following the suspension of the decision ordering his expulsion by the Chief of Police for Eastern Macedonia and Thrace. From the material in the Court’s possession, it is not clear on which dates the eighth to eleventh applicants were released.
2. The conditions of the applicants’ detention in the Fylakio Migrant Detention Centre
10. According to the applicants, the conditions of detention in the Fylakio Migrant Detention Centre had rendered even detention of a short duration unbearable, let alone detention of several months (as in their case).
11. The cells had been insufficiently lit, heated and ventilated. In addition, they had never been cleaned or disinfected and the sanitary facilities had been entirely insufficient to ensure detainees’ personal hygiene.
12. Outdoor exercise had been limited to one or two times per week, which, in addition to overcrowding, had taken a toll on the detainees’ physical and mental health.
13. Detainees had not been provided with sheets, blankets, or hygiene and cleaning products. Cells had not been furnished with any chairs, tables or electronic equipment such as television or radio sets. In general, detainees had not had access to any recreational activities.
14. Lastly, the meals provided had been insufficient and of poor quality.
15. The Government did not provide a description of the conditions of the applicants’ detention.
B. Relevant domestic law and practice
16. The relevant domestic law and practice is described in the Court’s judgments in C.D. and Others v. Greece (nos. 33441/10, 33468/10 and 33476/10, §§ 27-33, 19 December 2013) and Barjamaj v. Greece (no. 36657/11, §§ 17-23, 2 May 2013).
COMPLAINTS
17. The applicants complained under Article 3 of the Convention about the conditions of their detention in the Fylakio Migrant Detention Centre. In addition, the eighth to eleventh applicants complained under Article 5 § 4 that they had not had an effective remedy to challenge the lawfulness of their detention.
THE LAW
18. Invoking Article 3 of the Convention, the applicants complained of the conditions of their detention in the Fylakio Migrant Detention Centre. In addition, the eighth to eleventh applicants complained under Article 5 § 4 of the ineffectiveness of the proceedings whereby they had challenged the lawfulness of their detention.
A. The eighth to eleventh applicants
19. On 2 and 12 January 2016 the Court received friendly settlement declarations signed by the eighth to eleventh applicants and the Government respectively. Under these declarations, the above-mentioned applicants agreed to waive any further claims against the Hellenic Republic in respect of the facts giving rise to this application against an undertaking by the Government to pay each of them 5,500 euros (EUR) to cover any pecuniary and non-pecuniary damage, as well as costs and expenses, plus any tax that may be chargeable to the applicants. This sum will be payable within three months of the date of notification of the decision taken by the Court to strike the case out of its list of cases. In the event of failure to pay this sum within the said three-month period, the Government undertook to pay simple interest on it, from the expiry of that period until settlement, at a rate equal to the marginal lending rate of the European Central Bank during the default period, plus three percentage points. The payment will constitute the final resolution of the case in respect of the eighth to eleventh applicants.
20. Accordingly, the Court takes note of the friendly settlement reached between the parties and is satisfied that the settlement is based on respect for human rights, as defined in the Convention and its protocols. The Court finds no reasons to justify a continued examination of this part of the application (Article 37 § 1 in fine of the Convention).
21. In view of the above, it is appropriate to strike the application out of the list of cases in respect of the eighth to eleventh applicants, in accordance with Article 39 of the Convention.
B. The remaining applicants
22. The Government submitted that the first to seventh applicants had failed to raise objections against their detention before the president of the first-instance administrative court in accordance with Article 76 §§ 3 and 4 of Law no. 3386/2005, which entered into force on 1 January 2011. Relying on the Court’s judgment in F.H. v. Greece (no. 78456/11, 31 July 2014), the Government argued that the aforementioned domestic remedy (that of raising objections) had been found effective by the Court in respect of the same period as the relevant period in the instant case and an informal complaint to the director of the detention centre, such as the one allegedly lodged by the applicants, could not be considered as equivalent to the remedy provided for by law. In this respect, the Government contended that the first to seventh applicants had failed to exhaust the available domestic remedies and invited the Court to declare this part of the application inadmissible and to reject it, pursuant to Article 35 §§ 1 and 4 of the Convention.
23. The applicants questioned the efficiency of the domestic remedy referred to by the Government, even after the amendment introduced on 1 January 2011. In this connection, they relied on the dismissal of the eighth to eleventh applicants’ objections by the president of the first-instance administrative court and in the Court’s judgment in the case C.D. and Others (cited above). They also argued that they had lacked the financial means to make use of that particular domestic remedy and that, in any event, the Greek authorities had been made aware of the conditions of the applicants’ detention through the complaint that they had submitted to the director of Fylakio Migrant Detention Centre. Relying on the Court’s judgments in Kaja v. Greece (no. 32927/03, 27 July 2006) and Aslanis v. Greece (no. 36401/10, 17 October 2013), the applicants submitted that lodging complaints with non-judicial bodies had equally satisfied the requirement of exhausting domestic remedies.
24. The Court reiterates first of all that under Article 35 § 1 it may only deal with a matter after all domestic remedies have been exhausted. Applicants must have provided the domestic courts with the opportunity, in principle intended to be afforded to Contracting States, of preventing or putting right the violations alleged against them. That rule is based on the assumption that there is an effective remedy available in the domestic system in respect of the alleged breach. The only remedies which Article 35 § 1 requires be exhausted are those that relate to the breach alleged and are capable of redressing the alleged violation. The existence of such remedies must be sufficiently certain not only in theory but also in practice, failing which they will lack the requisite accessibility and effectiveness: it falls to the respondent State to establish that these conditions are satisfied (see, among many other authorities, Karácsony and Others v. Hungary [GC], no. 42461/13, § 76, ECHR 2016 (extracts); R.U. v. Greece, no. 2237/08, § 57, 7 June 2011; Łatak v. Poland (dec.), no. 52070/08, § 76, 12 October 2010; and Rexhepi and others v. Italy (dec.), no. 47180/10, §§ 37-39, 16 September 2014).
25. The Court points out, however, that, the existence of mere doubts as to the prospects of success of a particular remedy which is not obviously futile is not a valid reason for failing to exhaust domestic remedies (see, among other authorities, Sejdovic v. Italy [GC], no. 56581/00, § 45, ECHR 2006-II). It should also be reiterated that an applicant must have made normal use of domestic remedies which are likely to be effective and sufficient and that, when a remedy has been pursued, use of another remedy which has essentially the same objective is not required (see Kozacıoğlu v. Turkey [GC], no. 2334/03, § 40, 19 February 2009).
26. Turning to the present case, the Court notes at the outset that Article 76 of Law no. 3386/2005 was modified by Article 55 of Law no. 3900/2010, which entered into force on 1 January 2011. Under that amendment, the president of the first-instance administrative court is competent to examine all aspects of the legality of an alien’s detention, including the conditions in which an alien is detained. In this respect, the Court notes that the conditions of detention form part of the criteria used to examine the legality of detention and there has been a number of cases in which aliens have raised this issue in their objections, as the Court has had the opportunity to establish in some of its judgments (Herman and Serazadishvili v. Greece, no. 26418/11 and 45884/11, 24 April 2014; F.H., cited above). In addition, the Court observes that Article 30 § 1 of Law no. 3907/2011, which entered into force on 26 January 2011, stipulates that the availability of appropriate detention facilities for aliens and the possibility of securing decent living conditions for them are factors that are taken into consideration when detention is imposed or extended.
27. The Court further notes that the first to seventh applicants did not submit objections to the president of the first-instance administrative court concerning the conditions or the legality of their detention (see paragraph 7 above). It appears, however, that on 24 June 2011 their lawyer lodged a complaint on their behalf with the director of the Fylakio Migrant Detention Centre, requesting the immediate termination of their detention and an improvement in the conditions of their detention (see paragraph 8 above). Even though such a complaint would have satisfied the condition of exhausting domestic remedies prior to the change to Article 76 of Law no. 3386/2005 (see C.D., cited above, § 45), the Court has ruled on many occasions that, following the introduction of paragraph 4 to Article 76, the provision that entered into force on 1 January 2011, the submission of objections to the president of the first-instance administrative court constitutes an effective remedy, which should have been exhausted by the applicants (see S.B. v. Greece (dec.), no. 73554/11, §§ 31-41, 8 July 2014; G.B. v. Greece (dec.), no. 78485/11, §§ 47-55, 16 September 2014; and Moras and others v. Greece (dec.), no. 20/13, §§ 26-33, 20 January 2015). It follows that an informal complaint to the director of the Fylakio Migrant Detention Centre, which is not foreseen in law, cannot constitute a substitute for a remedy which the Court has found to be available and effective.
28. The Court takes note of the applicants’ argument that they lacked the financial means to submit objections to the first-instance administrative court. However, it transpires from the content of their complaint to the director of Fylakio Migrant Detention Centre that the applicants benefited from legal assistance at least from 24 June 2011 onwards. Also, having regard to the fact that they were all represented by the same lawyer, which would normally substantially diminish the costs and expenses, the Court considers that there are no special circumstances dispensing the applicants from their obligation to avail themselves of the available domestic remedies (see, conversely, Sejdovic v. Italy [GC], no. 56581/00, § 55, ECHR 2006‑II).
29. Lastly, the Court notes that the judgment in C.D. and Others, invoked by the applicant, in which a similar complaint was found to satisfy the requirement of exhaustion of domestic remedies laid down in Article 35 § 1, refers to the period prior to the amendment to Article 76 of Law no. 3386/2005, when the president of the first-instance administrative court could not examine the legality of an alien’s detention, including the conditions of his or her detention. In addition, the Court’s judgments in Kaja v. Greece and Aslanis v. Greece refer to conditions of detention in police stations, for which no domestic remedy is available; these judgments are therefore not relevant to the circumstances of the present case.
30. It follows that this part of the application must be rejected under Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies.
For these reasons, the Court, unanimously,
Decides to strike the application out of its list of cases in respect of the eighth to eleventh applicants in accordance with Article 39 of the Convention;
Declares the remainder of the application inadmissible.
Done in English and notified in writing on 16 February 2017.
Renata DegenerLedi Bianku
Deputy RegistrarPresident
Appendix Paul JOSEF is a Nigerian national who was born in 1981 Ali HASAN is a Nigerian national who was born in 1990 Usuin ABBA is a Nigerian national who was born in 1991 Paul DIVINE is a Nigerian national who was born in 1985 Hamid DAVUTI is a Nigerian national Jome SALAT is a Nigerian national who was born in 1985 Emeka MONDE is a Nigerian national who was born in 1977 Diana NUNEZ REYNOSO is a Dominican national who was born in 1988 Maria Altagracia POLANCO CONTRERAS is a Dominican national who was born in 1990Karina POLANCO CEPEDA is a Dominican national who was born in 1992Josefina PENA is a Dominican national who was born in 1984
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