S.D. v. Greece

Avrupa İnsan Hakları Mahkemesi

Karar Metni

Information Note on the Court’s case-law No. 120

June 2009

S.D. v. Greece - 53541/07

Judgment 11.6.2009 [Section I]

Article 3

Degrading treatment

Conditions of detention of asylum seekers in removal centres: violation

Article 5

Article 5-1

Lawful arrest or detention

Failure to take into account applicant’s status as asylum seeker when detaining him with a view to his expulsion: violation

Article 5-4

Take proceedings

No means by which asylum seeker could obtain judicial decision on the lawfulness of his detention pending expulsion: violation

Facts: The applicant, a Turkish journalist and member of an illegal political party, fled his country after spending several years in prison, where he had been subjected to violence. On the day of his arrival in Greece he was arrested by the police and remanded in custody for entering the country illegally and using forged documents. He alleged that he had immediately requested political asylum, but no such request was registered by the authorities. He remained in the holding centre at the border post for two months without being allowed outdoors and without access to a telephone, blankets, clean sheets or hot water. The public prosecutor committed him for trial and ordered his release, but the applicant was rearrested by the police. The border post holding centre decided that the applicant should be detained with a view to his removal. The police commissioner then remanded him in custody pending the order for his deportation, which was to be issued within three days. However, no such order was issued because in the meantime the authorities had registered the applicant’s asylum application. The criminal court acquitted the applicant but the police arrested him after the court hearing. An order was issued for his removal and he was placed in detention pending deportation on the ground that he was liable to abscond. An appeal by the applicant against the removal order was dismissed on the ground that he represented a danger to public order and security. His objections to his detention were rejected by the administrative court as applications for release had to be rejected if it was clear from the case file that the alien concerned did not intend or was unable to leave the country within the thirty-day time-limit laid down by law. The applicant fell into that category as he had applied for political asylum. When the processing of his asylum by the Advisory Committee on Asylum (“the Committee”) was adjourned, the applicant lodged further objections with the administrative court against his continued detention. His asylum application was then refused as being too vague and he appealed against that decision. The applicant was subsequently transferred to the holding facility for aliens in order to be brought before the Committee for an opinion on his asylum application. He was not allowed to leave his cell for six days. The Committee adjourned examination of the case pending the receipt of evidence from the applicant in support of his application and the results of the examination he had undergone at the Medical Centre for the Rehabilitation of Torture Victims (“the Centre”). The administrative court eventually allowed the applicant’s objections, holding that aliens who had entered Greece illegally and claimed asylum could not be expelled and removed. Observing that the examination of the applicant’s asylum claim was pending, the court ordered his release. As a result, the applicant was issued with an asylum seeker’s certificate valid for six months, which was renewed twice. The Centre certified that the applicant had been subjected to ill-treatment akin to torture in Turkey. The head of the Greek section of Amnesty International then issued a report on a visit to the border post holding centre stating that the applicant and another Turkish detainee had shared a relatively clean room which had a bath and hot water but no space for outdoor exercise.

Law: Article 3 – The applicant had spent approximately two months in a holding centre. He had subsequently been transferred to another holding facility for aliens, where he was detained for six days. The applicant and the Government presented differing accounts of the conditions of detention in the holding facilities. However, the applicant’s allegations were corroborated by the findings of several international institutions and non-governmental organisations, which were not explicitly denied by the Government. Most of these concerned the overall situation of refugees arrested and detained in this region but some gave specific details concerning the border post holding centre. Furthermore, even assuming that the applicant had shared a relatively clean room which had hot water for the first two months of his detention, as stated by the head of the Greek section of Amnesty International following her visit, the fact remained that he had spent all that time in a prefabricated cabin without being allowed outdoors and without access to a telephone, blankets, clean sheets or sufficient toiletries. Similarly, in the holding facility for aliens the applicant had been confined to his cell for six days without being allowed outdoor exercise. The conditions of detention in that facility, as described by the European Committee for the Prevention of Torture, were unacceptable. With regard to the applicant’s personal situation, he had been subjected to serious torture in Turkey which had left considerable clinical and psychological after-effects. The fact that this had not been formally certified by the Centre until after the applicant’s detention had ended did nothing to alter that finding. In view of the above considerations, the conditions of the applicant’s detention, as a refugee and asylum seeker, combined with the excessive length of his detention in the conditions described, amounted to degrading treatment.

Conclusion: violation (unanimously).

Article 5 § 1 – The day of his arrival in Greece the applicant had made an oral request for asylum which was not registered by the authorities. The police had then arrested the applicant and decided to detain him pending the order for his deportation which, by law, had to be issued within three days. However, no such order had been made. Counsel for the applicant had made a fresh asylum application in writing, which was registered only at the third attempt. On the same day the Criminal Court had acquitted the applicant on charges of entering the country illegally and using forged papers and had ordered his release. Although the criminal proceedings were separate from the administrative deportation proceedings, the police had rearrested the applicant after he had been formally granted asylum-seeker status and had decided to detain and deport him on the ground of the same offences of which he had been acquitted by the Criminal Court. The applicant’s appeal against that decision was dismissed on the ground that, having broken the law, he represented a danger to public order and safety. The authorities had therefore failed to take the applicant’s status as an asylum seeker into account. Since the applicant could not be deported until his asylum application had been examined, his detention had had no basis in domestic law, at least once his application had been formally registered. However, the applicant had not been released until two months later, when the Administrative Court had allowed his objections and ordered his release. The Court noted the Government’s argument as to the need for effective monitoring of persons who entered the country illegally and the necessity of preventing certain individuals from taking unfair advantage of the benefits conferred by refugee status. However, this did not dispense the authorities from stating, after examining each case individually, why releasing the asylum seeker concerned would pose a danger to public order or national security. In conclusion, the applicant’s detention with a view to his expulsion had not been lawful for the purposes of Article 5 § 1 (f) of the Convention once his request for asylum had been registered.

Conclusion: violation (unanimously).

Article 5 § 4 – The relevant domestic law did not permit direct review of the lawfulness of the detention of aliens, bearing in mind that they could only be detained with a view to their deportation. The decision to detain an alien was inseparable from the decision to deport him or her. While a finding that the deportation order was unlawful automatically rendered the detention decision unlawful, the courts did not examine separately the lawfulness of the detention of an alien where the order for his or her deportation had been stayed. In addition, the wording of the law was ambiguous, apparently suggesting that even if the objections lodged by an alien against his or her detention were allowed by the court, the latter had to order the person concerned to leave the country within thirty days. Furthermore, lodging an application with the administrative courts to have a deportation order set aside or suspended did not result in the lifting of the detention order. This type of procedure was also lengthy and the law did not provide for legal aid in administrative court proceedings. Hence, the president of the administrative court had dismissed the applicant’s initial objections against his detention on the ground that the applicant, having claimed asylum, had not left the country within the statutory time-limit of thirty days. The administrative court to which the applicant applied to have that decision set aside had not ruled on the lawfulness of his detention either; it had ordered his release after observing that he had appeared before the Committee and that the hearing had been adjourned pending the findings of the Centre for the Rehabilitation of Torture Victims, without ruling on the lawfulness of the earlier period of detention. Accordingly, the legal system had not afforded the applicant any opportunity of obtaining a decision from the domestic courts on the lawfulness of his detention.

Conclusion: violation (unanimously).

Article 41 – EUR 10,000 for non-pecuniary damage.

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