ECtHR - R.U. v. Greece, Application No. 2237/08

Conditions of detention in Soufli and Petrou Ralli (Articles 3 and 13)

The Court first examined whether there had been remedies available to R.U. in Greece which he should have used in order to complain about his conditions of detention before lodging this complaint with the Court (Article 35, conditions of admissibility). It observed that this was not the case. The only remedy available to the Applicant was to apply to the hierarchical superior of the police, whose impartiality and objectivity in the matter were open to doubt. R.U.’s complaint about his conditions of detention was the same and concerned the same period as the one examined by the Court in another case, in which the Court had held that there had been a violation of Article 3 on account of the general conditions of detention prevailing in the Soufli and Petrou Ralli detention centres. It came to the same conclusion in the case of R.U.: there had been a violation of Article 3.

As there were no remedies in Greece enabling him to complain about his conditions of detention, there had also been a violation of Article 13.

Risk of deportation to Turkey as a result of deficiencies in the asylum procedure (Articles 3 and 13)

The Court observed that a remedy had to provide a careful scrutiny by a national authority, an independent and rigorous examination of any complaint that there were reasons to believe that treatment contrary to Article 3 had been inflicted, and the complaint had to be examined with particular speed. The remedy also had to be of automatic suspensive effect. The Court pointed out that it had found before that Greece’s asylum legislation was not being applied in practice and that the asylum procedure was marked by such major structural deficiencies that asylum seekers had very little chance of having their applications and their complaints under the Convention seriously examined by the Greek authorities. Some of those deficiencies were apparent, moreover, in the case of R.U., whose asylum application had been dismissed at first instance by a decision drafted in stereotypical terms, his appeal against which was still pending today, three years and over seven months later. The Court pointed out that neither an application for a stay of execution nor a request for an interim order were of automatic suspensive effect. R.U. had not therefore had an effective remedy, either in the deportation or the asylum proceedings, by which to complain of his deportation to Turkey.

The Court attached importance to the fact that the country to which R.U. was to be deported – Turkey – was a State Party to the Convention that had accordingly undertaken to respect the right to life and the prohibition of inhuman or degrading treatment. The Court could not, however, base its assessment on that fact alone. It had to take account of the concrete information in the file. It noted that in its report of 19 September 2007 the Medical Rehabilitation Centre for Torture Victims had confirmed that R.U. had been tortured while serving his prison sentence in Turkey. The Court considered that R.U. had thus submitted probative evidence in support of his asylum application in Greece, based on the fact that, in the past, he had been subjected to acts that could be characterised as contrary to Article 3 of the Convention. As his asylum application was still pending, and given the situation of asylum seekers in Greece, R.U. had then been, and was still now, at risk of being sent back to Turkey without having the opportunity of his asylum application being properly examined, despite there being substantial grounds for believing that he would be subjected to treatment contrary to Article 3 of the Convention if sent back there. The Court concluded that there had been a violation of Article 13 taken in conjunction with Article 3.

Article 5 § 1 (f)

The Court reiterated that the conditions for deprivation of liberty must be clearly defined under domestic law and that the law itself must be foreseeable in its application. Furthermore, in order not to be arbitrary, the detention of a person “to prevent his effecting an unauthorised entry into the country or against whom action is being taken with a view to deportation or extradition” must be done in good faith.

R.U.’s deprivation of liberty was based on Law no. 3386/2005 and was intended to guarantee the possibility of deporting him. The Court pointed out in that connection that Greek law only permitted detention with a view to deportation where that deportation could be executed. It also observed that, both under Greek law and international law, an asylum seeker could not be deported until his or her application had been definitively dealt with. That had been the situation of R.U. (asylum application pending) and when the President of the Alexandroupolis Administrative Court had decided on 15 May 2007 to keep him in detention, he had been aware of the position because he had expressly referred to the asylum application. Accordingly, there had been a violation of Article 5 § 1 (f) from 15 May 2007.

Possibility of obtaining a decision from a Greek court on the lawfulness of the detention (Article 5 § 4)

The Court noted the inadequacies of Greek law regarding the effectiveness of judicial review of detention with a view to expulsion and had concluded that they did not meet the requirements of Article 5 § 44.

Neither section 76 of Law no. 3386/2005, nor an application to the Minister of Public Order for judicial review of a deportation order, nor indeed an interim order deferring enforcement of the removal measure gave the court power to examine the lawfulness and appropriateness of a decision to maintain a person in detention with a view to his or her expulsion. In any event, the judges who had dealt with R .U.’s case had not examined the question. There had been a violation of Article 5 § 4.