Communicated on 7 November 2016
FIRST SECTION
Application no. 66702/13
S.Z. against Greece
lodged on 22 October 2013
STATEMENT OF FACTS
The applicant, Mr S. Z., is a Syrian national who was born in 1984 and lives in Athens. He is represented before the Court by Ms E.-L. Koutra, a lawyer practising in Athens.
A. The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
1. The applicant’s detention and his appeals against it
On 25 September 2013, in Athens, the applicant was found in possession of a fake French passport and was arrested by the Greek authorities. He was immediately brought to justice and sentenced to ten months’ imprisonment for use of false instrument, giving false unsworn testimony, and illegally entering the country (judgment 46181/2013 of the three-member Athens Court of First Instance). The execution of the sentence was suspended following the applicant’s appeal immediately after the pronouncement of the judgment.
On the same date, 25 September 2013, the Director of the Aliens Subdivision of Attica (Υποδιεύθυνση Αλλοδαπών Αττικής) ordered the administrative detention of the applicant for a period no longer than six months, on the grounds that he had entered the country illegally, did not possess a valid residence permit, and was considered to pose a danger to public order. He also ordered the applicant’s expulsion (decisions 538848/1-α/25.9.2013 and 538848/1-β/25.9.2013 respectively).
The applicant submits that he was informed of those decisions on 30 September 2016. He also claims that he submitted objections to his detention via a fax sent by his lawyer on 27 September 2016, which were not registered. In the objections he included a request for international protection.
On 4 October 2013 the applicant appealed against the expulsion decision to the Director of the Aliens Division of Attica, reiterating his request for international protection. The appeal was dismissed.
On 8 October 2013 the applicant filed objections to his detention before the Athens Administrative Court of First Instance (Διοικητικό Πρωτοδικείο Αθηνών) (his first set of objections). He claimed, inter alia: that his first objections, which had allegedly been submitted before the issue of the expulsion decision, had not been taken into consideration; that his detention was unlawful, since his expulsion to Syria would breach Greek, European and international law; that he was an asylum seeker; and that his conditions of detention in Zografou police station were very poor.
His objections were rejected two days later by the president of the court. In her reasoning, she noted that it was not clear whether the applicant had in fact submitted the first observations, that up to that date he had not submitted any proof that he was Syrian, and that he had the opportunity to request asylum before the head of Zografou police station. She also noted that the conditions of detention were tolerable, taking into account the difficult financial situation of the country and the fact that little time had elapsed since the applicant’s arrest (judgment no. 5563/2013).
On 18 October 2013 the applicant was transferred to the Asylum Service and was invited to attend a personal interview in view of his asylum request on 1 November 2013.
In the case file, there is a decision dated 18 October 2013 modifying the legal basis of the applicant’s detention and basing it instead on the grounds that he posed a danger to public order and/or national security and that his detention was necessary for the speedy determination of his application for asylum. In addition, the decision suspends his expulsion order. The applicant contested the date of the above-mentioned decision before the domestic authorities, and claimed that it had been issued several days later and backdated.
On 21 October 2013 the applicant gave his Syrian identity card to Zografou police station. He also claims to have submitted via his lawyer a request to be informed of the decision by which he was detained, or to be set free if such a decision did not exist.
On 23 October 2013 the applicant filed objections to his detention, asking for judgment no. 5563/2013 to be revoked (his second set of objections). In his application, he referred, inter alia, to the fact that he had proven his Syrian nationality by giving his identity card to the police, and to the submission of his asylum request to the Asylum Service on 18 October. He also maintained that he had a permanent address, submitting a lease contract.
His application was dismissed by the President of the Athens Administrative Court of First Instance. In her reasoning, she observed that the applicant had not yet been registered as an asylum-seeker, but the procedure was pending, taking into account a document dated 24 October 2013 from the Aliens Division of Attica. In the document, it was mentioned that the applicant had expressed his wish to request asylum, but his request had not yet been registered by the new Asylum Service. She also noted that the lease did not prove that the applicant had a permanent address (judgment no. 5772/2013).
On 8 November 2013 the applicant filed objections to his detention before the Athens Administrative Court of First Instance, asking for judgments no. 5563/2013 and 5772/2013 to be revoked (his third set of objections). He referred to the deterioration of his health. In his submissions, he also referred to the fact that, in accordance with a circular issued by the Greek police, even Syrians who had not requested asylum were not put in detention. He also submitted complementary observations contesting the date of the decision modifying the legal basis of his detention.
His appeal was dismissed (judgment no. 5935/2013). In her reasoning, the president of the court noted that the applicant had been admitted to hospital on 9 November 2013 and had been discharged with medication, showing “no signs of major active psychopathology”. She further ruled that the applicant’s objection regarding the date of the document modifying the legal basis of his detention was unsubstantiated.
On 12 November 2013 the applicant was granted refugee status and was released the next day.
2. The applicant’s conditions of detention
The applicant submits that his conditions of detention in Zografou police station were very poor. He was detained in the basement, which was humid and inadequately ventilated. The cell was filthy and overcrowded. The food provided was of very bad quality. He did not have access to outdoor exercise or other recreational activities. The above-mentioned conditions created the risk of contagious diseases. In addition, the applicant complains of a lack of access to medical treatment.
B. Relevant domestic law and practice
For the relevant domestic law and practice, please refer to the judgments in the cases of M.S.S. v. Belgium and Greece [GC], no. 30696/09, § 88-127, ECHR 2011; Bygylashvili v. Greece, no. 58164/10, § 30-43, 25 September 2012; Barjamaj v. Greece, no. 36657/11, § 17-23, 2 May 2013; A.F. v. Greece, no. 53709/11, § 26-32, 13 June 2013; Horshill v. Greece, no. 70427/11, § 30-35, 1 August 2013; Khuroshvili v. Greece, no. 58165/10, § 46-54, 12 December 2013; and B.M. v. Greece, no. 53608/11, § 39-40, 19 December 2013.
COMPLAINTS
The applicant complains under Article 3 of the Convention of his conditions of detention in Zografou police station.
Relying on Article 5 § 1, the applicant complains that he was unlawfully detained pending his expulsion, which was not possible. He relies on the judgment in the case of Tabesh v. Greece, no. 8256/07, 26 November 2009, whose considerations he claims to be directly applicable in his case. He also submits that his conditions of detention were incompatible with the purpose of his detention.
Relying on Article 5 § 4, the applicant complains that the proceedings by which the lawfulness of his detention was decided were not effective.
QUESTIONS TO THE PARTIES
1. Did the material conditions of the applicant’s detention in Zografou police station amount to inhuman or degrading treatment within the meaning of Article 3 of the Convention?
2. Was the applicant’s detention ordered “in accordance with a procedure prescribed by law”, as required by Article 5 § 1 of the Convention?
3. Did the applicant have at his disposal an effective procedure by which he could challenge the lawfulness of his detention, as required by Article 5 § 4 of the Convention?
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