ECtHR, H.A. and others v. Greece, 19951/16, 28 February 2019

Article 3 – Police stations

The Court first analysed its own case law regarding the duration of detention and its relationship with other relevant factors such as the detainee’s vulnerability and the detention place’s shortcomings. In terms of the characteristics of detention in police stations, the Court referred to its previous findings that police stations increase feelings of isolation for the detainee with negative consequences in their psychological well-being. These consequences are further compounded by the fact that the applicants were all minors.

According to reports by the Greek Ombudsman and the CoE Committee for the Prevention of Torture (CPT), police detention of minors may be justified only for the shortest periods of time possible, until registration is complete or a reception facility is found. The latter has also stated that detainees should be able to leave the police station for outdoors physical exercise, if detained for more than 24 hours, and concluded that the regime of protective custody of minors without any form of psychological or social support is unacceptable.

As the Greek government had not submitted any evidence contradicting the applicants’ inability to leave the police station, the detention conditions were found to amount to Article 3 ECHR treatment.

Article 3 – the Diavata centre

The Court took into account the purpose of safe zones in Northern Greece, which were created to address urgent accommodation needs for unaccompanied minors in the context of “increased migratory flows and an unprecedented humanitarian crisis”. Moreover, the applicants could move freely, as the Diavata centre was an open facility, and UNHCR mentions the existence of these safe zones without criticising them.

It concluded that the living conditions in that centre do not amount to inhuman and degrading treatment under Article 3.

Article 3 – ill-treatment of two applicants

The Court reiterated that in cases concerning injuries sustained while an individual was under the control of police authorities the burden of proof lies with the Government to prove that these injuries were not the result of ill-treatment. Individuals, however, cannot benefit from this presumption unless they submit relevant medical documents, which the Court accepts as having increased probative value.

In the present case, the applicants did not submit any medical documents attesting to their injuries and they provided no comment or explanation on why there was an absence of such medical documents. According to its case law, allegations of ill-treatment cannot be supported unless there is appropriate evidence, or irrefutable presumptions that are sufficiently serious, precise and consistent.

The complaint under Article 3 that relates to the applicants’ ill-treatment is rejected as manifestly ill-founded both in its procedural and substantive aspect.

Article 3 & 13 – Complaint concerning detention conditions

Although the Court did not contest the Government’s claim that the police officers did inform the Prosecutor on the imposition of protective custody, the absence of a relevant administrative report on the measure does not indicate the date on which protective custody would end. Consequently, it was impossible for the applicants and the NGOs that followed up with their case to be informed of the duration of the custody and alert the prosecutor accordingly with regard to whether it was beyond a reasonable time or not. Moreover, the Prosecutor dismissed the complaint regarding the detention conditions more than six months later, interviewing only three adults who were detained with the minors.

Under the above circumstances, there has been a violation of Article 3/Article 13, as the referral to the Prosecutor was not an effective remedy with regard to the detention conditions nor for the transfer of the applicants to a reception centre.

Article 5 (1)

The principles that relate to immigration detention are first analysed by the Court before moving on to the examination of the case’s circumstances. In this context, the authorities’ power to detain immigrants, the conformity of the exercise of this power with the Convention, as well as the need to impose detention in good faith and in close link with the purpose invoked, all form part of the Court’s analysis on this point.

Protective custody of unaccompanied minors

The Court considered that applicants’ placement under protective custody in police stations may only fall under Article 5 (1) f since Article 5 (1) d, which the applicants had invoked, can only be related to the minor’s education or to the purpose of bringing the minor before a competent authority.

It then went on to assess the “protective custody” regime as measure of deprivation of liberty. It took particular note of the measure’s purpose as not being minor-related, the lack of time limits in the relevant legal provisions and the fact that this regime is applied to individuals in police stations were lengthy detention is in any case arbitrary. The latter is a problem that has been brought to the attention of the Greek authorities by the CPT.

Recognising the need to reconcile the State’s immigration policy with fundamental rights, the Court emphasised that immigration restrictions cannot deprive foreign unaccompanied minors of the protection linked to their status. It further observed that other domestic legal texts only allow for detention of children as a measure of last resort and for a short amount of time.

Moreover, the best interests of the child, as enshrined in Article 3 of the UN Convention on the Rights of the Child, have to be respected when taking decisions that affect the child. As elaborated in Rahimi, national authorities must consider the child’s best interests and their particular situation as an unaccompanied minor. In the case at issue, the Greek government did not explain why the police did not opt for other temporary accommodation facilities but immediately placed the applicants in various police stations. The Court declined to accept the government’s argument that one police station was exclusively reserved for minors, as an element that could change the reality of the case.

The applicants’ detention violated Article 5 (1) ECHR.

Article 5 (4)

While the applicants might have known that they had entered Greek territory unlawfully, they could not know that they were falling under the "protective custody" procedure. Furthermore, they were placed directly in police stations without being notified of any decision informing them on the restriction of their liberty pending a more appropriate facility or any document informing them of their rights as unaccompanied minors.

The fact that protective custody is ordered until a reception facility is available makes it impossible for the minors to be identified by lawyers and to challenge an unreasonably lengthy detention. Moreover, the local Prosecutor, considered as their ex lege guardian, did not put them in contact with a lawyer and did not lodge any appeal to speed up their transfer to reception centres. Lastly, even if an appeal was available to the applicants, the lack of an official status of detainees would have created practical obstacles in challenging their detention before administrative courts.

There has been a violation of Article 5 (4).