ECtHR - Sh.D. and others v. Greece, Austria, Croatia, Hungary, Northern Macedonia, Serbia and Slovenia (no. 141165/16)

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Country of Applicant: 
Afghanistan
Date of Decision: 
13-06-2019
Citation: 
ECtHR - Sh.D. and others v. Greece, Austria, Croatia, Hungary, Northern Macedonia, Serbia and Slovenia (no. 141165/16), 13 June 2019
Court Name: 
European Court of Human Rights – First Section
Headnote: 

Detention conditions in Greek police stations and living conditions in Idomeni Camp in northern Greece for five unaccompanied children were in breach of Article 3 of the Convention. A further violation was found in respect of Article 5 § 1 regarding the “protective custody” of unaccompanied children in police stations.

Facts: 
The applicants are five unaccompanied children of Afghan origin. They arrived to Greece in early 2016 and were subsequently arrested by Greek police. In February 2016, orders were made for their removal from the state and they were given one month to leave.

Intending to reunite with family members in Germany, the applicants attempted to cross to North Macedonia but were intercepted by border guards. One applicant was arrested by Greek police and placed in “protective custody” at Polykastro police station for 24 days. On 18 March 2016, he was transferred to an unaccompanied minors’ reception centre pending a reply regarding his family reunification application.

Four applicants were later arrested on Chios on 23 February 2016 and their deportation was ordered. They crossed to the Greek mainland and made their way to Idomeni camp, where they lived for approximately one month. The camp was overcrowded, had a limited food supply, no sanitary facilities and the accommodation mainly comprised of tents. After leaving Idomeni camp, the applicants moved between various shelters and temporary accommodation. One applicant was later detained and held in “protective custody” for eight days in Aghios Stefanos police station and the Attica Police Directorate General. Another applicant was detained by police while attempting to travel to Italy, and was placed in “protective custody” at Igoumenitsa Port police station, and later at Filiata police station. 
Decision & Reasoning: 

Detention conditions in police stations

In examining the complaints under Article 3 regarding detention conditions, the Court recognised that it had previously found a violation for the detention of children for even the short period of a few days (see, inter alia, A.B. and others v. France, No. 11593/12, 12 July 2016). It held that conditions in police stations can create the feeling of isolation and can negatively affect physical and mental well-being, and that such conditions are not suitable for children. The Court cited reports from the Committee for the Prevention of Torture (CPT), which determined that the practice of detaining unaccompanied or separated minors in police stations in Greece for even short periods for “protective” purposes without psychological or social support was unacceptable. In the instant case, the Court found the conditions of detention in respect of three of the applicants in various police stations amounted to degrading treatment, in violation of Article 3.

Conditions in Idomeni camp

With regard to conditions in Idomeni camp, the Court acknowledged that the unaccompanied children were not detained and that the camp was not under the control of state authorities. However, the Court emphasised the positive obligations of the State to protect and take care of unaccompanied migrant children under Article 3, as well as under Article 20 of the Convention on the Rights of the Child (CRC), according to which a state must provide alternative care for a child when they are deprived of their family environment.

It recognised that the occupants of the camp were living in a precarious situation in deplorable material conditions and dependent on non-governmental organisations.  It found that the expansion of the camp and the worsening of living conditions were, to some extent, attributable to the slowness with which the state reacted to alleviate the humanitarian crisis in the camp. It therefore held that conditions in Idomeni camp were not suitable for children and ruled that the authorities had failed to meet their obligation under Article 3 ECHR to take charge of and protect the applicants who were particularly vulnerable on account of their age. 

Lawfulness of protective custody measures

With regard to the “protective custody” of three of the applicants, the court reiterated that “protective custody” as provided for in Greek law under Article 118 of Decree No 141/1991 was not designed for unaccompanied migrant minors and does not set a time limit for detention. It further recognised that under Law No. 3907/2011, children may be detained, but only as a measure of last resort and for as short a period of time as possible. Furthermore, Decree No. 114/2010, which transposes Directive 2005/85/EC, establishes that the detention of children must be avoided. Thus, with reference to Article 3 of the CRC on the best interests of the child the Court held that the detention of the applicants in “protective custody” was not lawful within the meaning of Article 5 § 1.

The Court ruled that the complaints submitted under Articles 1, 2, 13, and 14 of the Convention and against Austria, Croatia, Hungary, Northern Macedonia, Serbia and Slovenia were manifestly unfounded and therefore inadmissible.  

Outcome: 
Application granted.

Violation of Article 3 of the Convention for the conditions of detention in respect of three of the applicants in various police stations.

Violation of Article 3 of the Convention in respect of four applicants regarding the living conditions in Idomeni camp.

Violation of  Article 5 § 1 of the Convention in respect of three applicants held in “protective custody” in police stations.  

Case Law Cited: 

ECtHR - Siasios et al. v. Greece, Application No. 30303/07

ECtHR - Vafiadis v. Greece, Application No. 24981/07

ECtHR - Efremidze v. Greece, Application No. 33225/08

ECtHR - Aslanis v. Greece, Application No. 36401/10, UP

ECtHR - Kavouris and Others v. Greece, Application no. 73237/12, 17 April 2014

ECtHR - H.A. and others v. Greece, no. 19951/16, 28 February 2019

ECtHR - A.B. and Others v. France, Application no. 11593/12, 12 July 2016

ECtHR - R.M. and Others v. France, Application no. 33201/11, 12 July 2016

ECtHR - A.M. and Others v. France, Application no. 24587/12, 12 July 2016

ECtHR - R.K. and Others v. France, Application no. 68264/14, 12 July 2016

ECtHR - R.C. and V.C. v. France, Application no. 76491/14, 12 July 2016

ECtHR - N.T.P. and others v. France (application no. 68862/13), 24 May 2018
Other sources cited: 
Authentic Language: 
English
State Party: 
Greece
National / Other Legislative Provisions: 
Article 19 of Decree No. 220/2007
Article 118 of Decree No. 141/1991
Article 13 § 6 (b) of Decree No. 114/2010
Greece - Law No. 3907/2011