ECtHR – J.R. and others v. Greece, Application no. 22696/16, 25 January 2018

Firstly, the ECtHR analysed the Greek government’s claim that the complaint had to be rejected due to a lack of power of attorney at the time the complaint was submitted before the Court. The lawyer, who is based in Germany and had never met the applicants in person, had been in contact with the applicants via WhatsApp. The lawyer provided the Court’s registry with copies of the messages he had exchanged with the applicants, in which they indicate their desire to have their cases taken before the ECtHR.

The ECtHR found it clear from the messages exchanged via the mobile application that the applicants wished to be represented by the lawyer before the ECtHR. At a later stage, the lawyer was able to send the Court a copy of three letters handwritten by the applicants and reiterating the lawyer’s power of attorney. Therefore, the ECtHR concluded that the complaint could not be rejected due to a lack of power of attorney.

Secondly, the Court rejected the Greek government’s plea that the applicants’ complaint under Article 5(1) ECHR had to be declared inadmissible due to a lack of exhaustion of domestic remedies. The Court ruled that, in practice, the applicants did not have an effective access to domestic remedies for different reasons, including the lack of information received in a language that they understood, the legal complexity of the information they were given, the fact that they were not assisted by a lawyer, and the general insufficiency of the legal assistance provided by NGOs in the hotspot.

Thirdly, the ECtHR noted that the applicants’ detention in the hotspot between 21 March 2016 and 21 April 2016 amounted to deprivation of liberty, whereas after that date they were subject only to a restriction of movement, since the centre became a semi-open facility. The Court also considered that the situation in question fell within the scope of Article 5(1)(f) ECHR in that the applicants had been detained with a view to their deportation, to prevent them from remaining in Greece unlawfully and to identify and register them as part of the implementation of the EU-Turkey Statement. Their detention for a month could not, thus, be considered excessive for the purposes of the necessary administrative formalities. Therefore, it found that Greece had not violated the applicants’ rights under Article 5(1) ECHR.

Fourthly, the Court found it likely that, while the applicants could have been aware that they had entered Greece irregularly, they might not have known that their situation was covered by the EU-Turkey Statement, signed just the day before their arrival.  Moreover, the ECtHR ruled that, even if they had received an information leaflet, as claimed by the Greek government, its content was not such as to provide them with sufficient details about the reasons for their arrest or the remedies available to them. More particularly, the Court found the information in the leaflet was not provided in a simple and accessible language. Therefore, the Court thus found that there had been a violation of Article 5(2) ECHR.

With regard to the applicant’s complaints under Article 3 ECHR, the Court referred to different reports by international organisations and NGOs, such as by the Greek National Commission for Human Rights, by the Greek Council for Refugees, by the Council of Europe’s Committee on the Prevention of Torture and by Human Rights Watch. The ECtHR recalled that, as in the Grand Chamber’s decision in Khlaifia and others, the Court had to take into account that the case in question occurred at the time of an exceptional and sharp increase in migratory flows, which had created organisational, logistical and structural difficulties.

The Court paid special regard to the fact that the report of the CoE’s Committee on the Prevention of Torture had not been particularly critical of the conditions prevailing in the centre, but focused mainly on medical care, the lack of adequate information and legal assistance and the poor quality of drinking water and food. In the Court’s perspective, the reported conditions had not attained the threshold of severity required for their detention conditions to be considered as inhuman or degrading treatment. Moreover, it considered the applicants’ detention short (thirty days). Therefore, the ECtHR found that there had not been a violation of Article 3 ECHR.

Finally, the Court did not concur with the applicant’s that Greece had violated Article 34 ECHR. The applicants had complained that, by summoning and questioning one of the applicants, the national authorities had intimidated him and hindered the exercise of his right of individual application. The Court reiterated that it was in principle not appropriate for the authorities of a respondent State to enter into direct contact with an applicant in connection with his or her case before the Court (Konstantin Markin v. Russia), but that not all enquiries by authorities about a pending application could be regarded as a measure of intimidation. In the case in question, the Court found that the respondent State had not failed to fulfil its obligations under Article 34 ECHR.