ECtHR - Housein v. Greece, Application No. 71825/11

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Country of Applicant: 
Afghanistan
Date of Decision: 
24-10-2013
Citation: 
Application No. 71825/11
Court Name: 
First Section; European Court of Human Rights
Headnote: 

The detention of an unaccompanied minor for two months, mostly in an adult detention centre, and without effective administrative review, violated the Applicant’s rights under Article 5(1) and Article 5(4). The Court rejected related complaints under Articles 3 and 9.

Facts: 

The Applicant, born in 1994, is an Afghan national. He was arrested while still a minor in May 2011 for entering Greece illegally, and detained on 2 June 2011 pending removal in an adult detention facility.

He complained via his legal representative to the head of the detention centre against both the detention conditions (overcrowding, lack of physical activity and healthcare, inadequate food) and the fact of being detained. His representative also wrote to the prosecutor of the district criminal court to request transfer to a special detention institution for minors.

In early July, the objections concerning the Applicant’s detention in an adult facility, which the representative filed with the district administrative court, were dismissed on the basis that it was open to the representative to apply for more suitable accommodation to the competent authorities.

On 12 July 2011, by order of the prosecutor, he was transferred to a youth hostel, at which he remained until the decision ordering his detention and deportation was set aside on 28 July.

Before the ECtHR, the Applicant claimed a violation of Article 3 (prohibition of degrading treatment), regarding the detention conditions, Article 5(1) and (4) (right to liberty and right to have the lawfulness of detention decided speedily by a court), regarding his detention as an unaccompanied minor, and, as a Muslim, Article 9 (freedom of religion) for being allegedly forced to choose between eating pork and going hungry.

Decision & Reasoning: 

On Article 3, the Court decided that the Applicant, by failing to lodge an action under Article 105 of the Law of the Civil Code for damages caused by an illegal state act (such as detention of a child with adults), had not exhausted domestic remedies.

As to Article 5(1), the Court found a violation in that, despite numerous provisions of Greek law to the contrary, the Applicant had been detained as an unaccompanied child for nearly two months, spending most of that time in an adult detention centre. The Court found that the decision to detain the Applicant was made without taking into account his status as an unaccompanied child. The Court also noted that the UN Convention on the Rights of the Child requires that a child be detained only as a last resort.

The Court also found a violation of Article 5(4) because the administrative court to which the Applicant complained of his detention refused to consider the legality of the decision to detain and declared the action inadmissible.

Finally, the Applicant's Article 9 complaint was rejected as unfounded because, even if all domestic remedies were exhausted (which was doubted), the Court found no reason to question the documentary evidence of the meal program provided by the Government.

The Court granted 12,000 Euros in damages for the Article 5 violations.

Outcome: 

The Court found violations of Article 5(1) and (4); the Court found no violation of Articles 3 and 9.

The Court granted 12,000 Euros in damages for the Article 5 violations.

Case Law Cited: 

ECtHR - Mahmundi and Others v. Greece, Application No. 14902/10

ECtHR - Gonzalez v. Spain, Application No. 71752/01

ECtHR - Moreira Barbosa v. Portugal, Application No. 65681/01

ECtHR - Günaydin. Turkey, Application No. 27526/95

ECtHR - Ananyev et al. Russia, Application Nos. 42525/07 and 60800/08

ECtHR - Selmouni v. France [GC], Application No. 25803/94

ECtHR - Remli v. France, Application No. 16839/90

Greece - Council of State, Judgment No. 1215/2010

Greece - Council of State, Judgment No. 2893/2008

ECtHR - Akdivar v Turkey, Application No. 21893/93

ECtHR - A.A. v. Greece, Application No. 12186/08

ECtHR - Sejdovic v. Italy [GC], Application No. 56581/00

ECtHR - Rahimi v. Greece, Application No. 8687/08

ECtHR - Kudla v Poland [GC], Application No. 30210/96

ECtHR - Tabesh v. Greece, Application No. 8256/07
Other sources cited: 
  • Recommendation Rec (2006) 2 of the Committee of Ministers to member states on the European Prison Rules (adopted by the Committee of Ministers on 11 January 2006 at the 952nd meeting of the Ministers' Deputies) Provisions 22.1-22.6;
  • Findings of the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) (January 2011 visit);
  • Findings of the UN Special Rapporteur on torture and other cruel, inhuman or degrading treatment (October 2010 visit);
  • The 2009 and 2010 Reports of the Greek Union for Human Rights.
Authentic Language: 
French
State Party: 
Greece
National / Other Legislative Provisions: 
UNCRC - Art 37
Greece - Ministerial Decision No. 400/2009 on the execution of administrative decisions to expel foreigners - Art 5 § 2
Greece - Law No. 3386/2005 - Article 81
Greece - Presidential Decree No. 114/2010 entitled ‘Refugee status: single procedure for foreigners and stateless persons’ - Art 13 § 6(b)
Greece - Decree No. 141/1991 on jurisdiction of the bodies of the Ministry of Public Order - Article 97 (Protection of Minors)
Greece - Law No. 3386/2005 - Sections 76
Greece - Law No. 3386/2005 - Sections 77
Greece - Law No. 3386/2005 - Sections 78
Greece - Law No. 3900/2010
Greece - Act to the Civil Code - Section 105
Greece - Code of Civil Procedure; Section 57 of the Civil Code - Article 1050 § 2
Greece - Code of Civil Procedure - Article 1050 § 2
Greece - Civil Code - § 57