Kaak and Others v Greece: Lack of an effective remedy constitutes a violation under Article 5 § 4

Thursday, October 3, 2019

On 3 October 2019 the European Court of Human Rights published its ruling on the case of Kaak and Others v Greece (Application No. 34215/16) regarding the detention conditions and lawfulness of detention in the VIAL ‘Hotspot’ and SOUDA camp.

The case concerns 49 applicants, of Syrian, Afghan and Palestinian nationality who arrived in Greece by sea between 20 March and 16 April 2016. The applicants were transferred to the VIAL “Hotspot” registration and identification centre and SOUDA camp upon arrival. Expulsion orders were subsequently issued against the applicants as they were deemed to have gained entry irregularly. Authorities held that the applicants would remain in detention until their expulsion to Turkey could be arranged. During this time, very few applicants were able to register asylum applications. The applicants made a number of complaints to the Court, arguing that the detention conditions were contrary to Article 3, their detention was unlawful under Article 5 § 1, and there existed no effective remedy to challenge the lawfulness of their detention under Article 5 §4 of the Convention. The Court found no violation in relation to the complaints under Articles 3 and 5 § 1.

Regarding the complaint under Article 5 § 4, the applicants argued that the communication of their expulsion notices were confusing, abstract, and were not provided in a language that could be understood. Evidence supported by a third party added that no legal information or assistance had been provided to the applicants, and that the expulsion proceedings lacked clarity and did not allow for the prompt review of the lawfulness of detention.

In its ruling, the Court noted, inter alia, that little or no legal assistance had been provided to the applicants to ensure that the expulsion orders had been properly understood. Moreover, the Court noted that legal information provided was vague and made only a superficial reference to an administrative court without exact specification. In light of these issues, the Court was not satisfied that the applicants were able to exercise their right to an effective remedy. The Court therefore found a violation of Article 5 § 4 of the Convention.

Based on an unofficial translation by the EWLU team.

Photo: Fotomovimento, January 2018. Flickr (CC)

This item was reproduced with the permission of ECRE from the ELENA Weekly Legal Update. The purpose of these updates is to inform asylum lawyers and legal organizations supporting asylum seekers and refugees of recent developments in the field of asylum law. Please note that the information provided is taken from publicly available information on the internet. Every reasonable effort is made to make the content accurate and up to date at the time each item is pusexblished but no responsibility for its accuracy and correctness, or for any consequences of relying on it, is assumed by ECRE.