Migrant Detention [ECHR]

Deprivation of Liberty

Khlaifia and Others v. Italy This case concerned the detention in a reception centre on Lampedusa and subsequently on ships moored in Palermo harbour, as well as the repatriation to Tunisia, of clandestine migrants who had landed on the Italian coast in 2011 during the events linked to the “Arab Spring”.

The Grand Chamber held that there had been a violation of Article 5 § 1 (right to liberty and security), a violation of Article 5 § 2 (right to be informed promptly of the reasons for deprivation of liberty) and a violation of Article 5 § 4 (right to a speedy decision by a court on the lawfulness of detention) of the Convention. It observed in particular that the applicants’ deprivation of liberty without any clear and accessible basis did not satisfy the general principle of legal certainty.

S.K. v. Russia involved a decision by the Russian authorities to detain the applicant, a Syrian national, and remove him to his home country. The applicant complained in particular that his continuing detention was arbitrary, given that he could not be removed to Syria, and that there had been no domestic procedure which he could have used to have had his detention reviewed.

The Court held that there had been a violations of Article 5 § 1 (right to liberty and security) and Article 5 § 4 (right to have lawfulness of detention decided speedily by a court) of the Convention on account of the applicant’s detention with a view to enforcing the penalty of administrative removal.

J.R. and Others v. Greece concerned the conditions in which three Afghan nationals were held in the Vial reception centre, on the Greek island of Chios, and the circumstances of their detention. The applicants complained in particular about the length of their detention in the centre, which they regarded as arbitrary. They also complained that they had not received any information about the reasons for their detention, neither in their mother tongue nor in any other language.

The Court held that there had been no violation of Article 5 § 1 (right to liberty and security) of the Convention. It found in particular that the applicants had been deprived of their liberty for their first month in the centre, until 21 April 2016 when it became a semi-open centre. The Court was nevertheless of the view that the one-month period of detention, whose aim had been to guarantee the possibility of removing the applicants under the EU-Turkey Declaration, was not arbitrary and could not be regarded as “unlawful” within the meaning of Article 5 § 1 (f). The Court held however that there had been a violation of Article 5 § 2 (right to be informed promptly of the reasons for arrest) of the Convention, finding that the applicants had not been appropriatelyinformed about the reasons for their arrest or the remedies available in order to challenge that detention.

K.G. v. Belgium concerned an asylum-seeker who was placed and kept in detention under four decisions, for security reasons, while his asylum application was pending. In particular, the applicant was “placed at the Government’s disposal” and held on that basis for approximately 13 months.

The Court held that there had been no violation of Article 5 § 1 (right to liberty and security) of the Convention. It found in particular that public interest considerations had weighed heavily in the decision to keep the applicant in detention, and saw no evidence of arbitrariness in the assessment made by the domestic authorities. It also observed that the applicant’s health had not been jeopardised and that he had benefited from special care in both the centres where he had been detained. Lastly, the Court found that, in view of the issues at stake and the fact that the domestic authorities had acted with the requisite diligence, the length of time for which the applicant had been placed at the Government’s disposal could not be regarded as excessive.

Transit Zones

Z.A. and Others v. Russia  2019 (Grand Chamber) This case concerned four men from Iraq, the Palestinian territories, Somalia and Syria who were held for long periods of time in the transit zone of Moscow’s Sheremetyevo airport while the authorities dealt with their asylum applications. They all eventually left Russia after living in the transit zone. The applicants alleged in particular that their confinement in the transit zone had amounted to unlawful deprivation of liberty.

The Grand Chamber found in particular that Article 5 (right to liberty and security) of the Convention was applicable to the applicants’ case as their presence in the transit zone had not been voluntary; they had been left to their own devices for the entire period of their stay, which had lasted between five months and almost two years depending on the applicant; there had been no realistic prospect of them being able to leave the zone; and the authorities had not adhered to the domestic legislation on the reception of asylum-seekers. Further, given the absence of a legal basis for their being confined to the transit zone, a situation made worse by them being impeded in accessing the asylum system, the Court concluded that there had been a violation of the applicants’ rights protected by Article 5 § 1 of the Convention.

Ilias and Ahmed v. Hungary concerned two asylum-seekers from Bangladesh who spent 23 days in a Hungarian border transit zone before being removed to Serbia after their asylum applications were rejected. The Grand Chamber held, by a majority, that the applicants’ complaints under Article 5 §§ 1 (right to liberty and security) and 4 (right to have lawfulness of detention decided speedily by a court) of the Convention had to be rejected as inadmissible, finding that Article 5 of the Convention was not applicable to the applicants’ case as there had been no de facto deprivation of liberty in the transit zone.

R.R. and Others v. Hungary concerned the confinement of an asylum-seeking family, including three minor children, in the Röszke transit zone on the border with Serbia in April-August 2017. The applicants complained, in particular, of the fact of and the conditions of their detention in the transit zone, of the lack of a legal remedy to complain of the conditions of detention, and of the lack of judicial review of their detention.

The Court found that the applicants’ stay in the transit zone had amounted to a de facto deprivation of liberty. It considered that without any formal decision of the authorities and solely by virtue of an overly broad interpretation of a general provision of the law, the applicants’ detention could not be considered to have been lawful. Accordingly, it concluded that in the present case there had been no strictly defined statutory basis for the applicants’ detention and that there had thus been a violation of Article 5 § 1 (right to liberty and security) of the Convention.

Expulsion

Akkad v. Türkiye concerned allegations by a Syrian national that he had been subjected to forced and unlawful expulsion to Syria by the Turkish authorities under the guise of a “voluntary return”. In 2018 the applicant, who had a va

lid residence permit in Türkiye and had been granted “temporary protection” status, was arrested near the Meriç river while attempting to enter Greece.
The Court held that there had been a violation of Article 5 §§ 1, 2, 4 and 5 (right to liberty and security) of the Convention in respect of the applicant. It firstly found that the applicant had been deprived of his liberty from the time of his arrest close to the Greek border at Meriç until his removal to Syria.

Detention Conditions

Sakir v. Greece 2016 e concerned an assault against the applicant in 2009 in the centre of Athens which led to his hospitalisation, and also the conditions in which he was detained in a police station after his release from hospital.

The Court held that there had been a violation of Article 3 (prohibition of inhuman or degrading treatment) and a violation of Article 13 (right to an effective remedy) of the Convention with regard to the applicant’s conditions of detention in the Aghios Panteleïmon police station in Athens. It found in particular that the police had not sought to ascertain from the hospital whether the applicant’s state of health allowed him to be placed in detention. It noted that, in spite of specific instructions from his doctors, there had been shortcomings in the manner in which his medical condition and state of vulnerability were taken into account.

Moreover, no effective remedy had been available to enable the applicant to complain about the conditions of his detention. In this case the Court also held that there had been a violation of Article 3 of the Convention with regard to the conduct of the investigation carried out following the assault.

Ilias and Ahmed v. Hungary 2019 (Grand Chamber)  concerned two asylum-seekers from Bangladesh who spent 23 days in a Hungarian border transit zone before being removed to Serbia after their asylum applications were rejected. The applicants complained in particular about the conditions of detention in the transit zone.

The Grand Chamber held, unanimously, that there had been no violation of Article 3 (prohibition of inhuman of degrading treatment) of the Convention, as regards the applicants’ conditions in the transit zone. It found in particular that the living conditions in the zone, the length of the applicants’ stay there, and the possibilities for human contact with other asylum seekers, representatives of the United Nations High Commissioner for Refugees (UNHCR), NGOs and a lawyer, meant that their situation had not reached the minimum level of severity necessary to be considered as inhuman treatment within the meaning of Article 3.

The Grand Chamber held, however, that there had been a violation of Article 3 of the Convention owing to the applicants’ removal to Serbia, finding in particular that the Hungarian authorities had failed in their duty under Article 3 to assess the risks of the applicants not having proper access to asylum proceedings in Serbia or being subjected to chain-refoulement, which could have seen them being sent to Greece, where conditions in refugee camps had already been found to be in violation of Article 3.

Exceptional Numbers

J.R. and Others v. Greece (no. 22696/16) (see also above, under “Deprivation of liberty”)  2018  concerned the conditions in which three Afghan nationals were held in the Vial reception centre, on the Greek island of Chios, and the circumstances of their detention. The Court held that there had been no violation of Article 3 (prohibition of inhuman or degrading treatment) of the Convention, finding that the threshold of severity required for the applicants’ detention to be characterised as inhuman or degrading treatment had not been reached in this case.

The Court noted in particular that the facts in question occurred at the time of an exceptional and sharp increase in migratory flows in Greece, which had created organisational, logistical and structural difficulties. It reiterated in this respect that, in view of the absolute nature of Article 3, the factors associated with an increasing influx of migrants could not absolve States of their obligations to ensure that all persons deprived of their liberty were held in conditions compatible with respect for human dignity. In the present case, the Court observed that several NGOs had visited the centre and confirmed some of the applicants’ allegations concerning its general condition.

Kaak and Others v. Greece concerned the conditions of detention of Syrian, Afghan and Palestinian nationals in the “hotspots” of Vial and Souda (Greece), and the lawfulness of their detention in those camps. The applicants complained in particular about the conditions of detention in the camps, which they alleged to be a danger to their physical and mental wellbeing. They complained both of the quantity and quality, in health terms, of the meals distributed to them and of the inadequacy of the medical provision. They also highlighted the overcrowding in the camps, which rendered the material conditions of accommodation dangerous. Lastly, they noted the lack of facilities capable of guaranteeing the security and safety of women and children, who constituted particularly vulnerable categories of persons.

The Court held that there had been no violation of Article 3 (prohibition of inhuman or degrading treatment) of the Convention with regard to the applicants’ conditions of detention. It considered in particular that the authorities had done all that could reasonably be expected of them in the Vial camp to meet the obligation to provide care and protection to unaccompanied minors. The other applicants had been transferred immediately – or within ten days – from the Vial camp to the Souda camp. The Court also found that the conditions of detention in the Souda camp did not amount to inhuman or degrading treatment.

Minors

A.B. and Others v. France concerned the administrative detention of an underage child for eighteen days in the context of a deportation procedure against his parents. The Court held that there had been a violation of Article 3 (prohibition of inhuman or degrading treatment) of the Convention in respect of the applicant’s child, finding that, given the child’s age and the duration and conditions of his detention in the administrative detention centre, the authorities had subjected him to treatment which had exceeded the threshold of seriousness required by Article 3. The Court noted in particular that, where the parents were placed in administrative detention, the children were de facto deprived of liberty.

Sh.D. and Others v. Greece, Austria, Croatia, Hungary, North Macedonia, Serbia and Slovenia  2019 This case concerned the living conditions of five unaccompanied migrant minors from Afghanistan, who entered Greece as unaccompanied migrant minors in 2016, when they were between 14 and 17 years of age. More specifically, two of the applicants complained about their living conditions at Polykastro and Filiata police stations, where they had been held in “protective custody”, while four applicants complained about their living conditions at the camp in Idomeni. Three of the applicants also argued that their placement in protective custody at the police stations in Polykastro, Filiata and Aghios Stefanos had amounted to an unlawful deprivation of liberty.

The Court declared the complaints against Austria, Croatia, Hungary, North Macedonia, Serbia and Slovenia inadmissible as being manifestly ill-founded. It further held that there had been a violation by Greece of Article 3 (prohibition of inhuman or degrading treatment) of the Convention. Firstly, the Court found that the conditions of detention of three of the applicants in various police stations had amounted to degrading treatment, observing that being detained in these places was liable to arouse in the persons concerned feelings of isolation from the outside world, with potentially negative repercussions on their physical and mental well-being. Secondly, it noted that the authorities had not done all that could reasonably be expected of them to fulfil the obligation to provide for and protect four of the applicants, who had lived for a month in the Idomeni camp in an environment unsuitable for adolescents. That obligation was incumbent on the Greek State with regard to persons who were particularly vulnerable because of their age.

The Court also held that there had been a violation by Greece of Article 5 § 1 (right to liberty and security) of the Convention with regard to three applicants, finding that the placement of these applicants in the police stations had amounted to a deprivation of liberty as the Greek Government had not explained why the authorities had first placed the applicants in police stations – and in degrading conditions of detention – rather than in alternative temporary accommodation. The detention of those applicants had therefore not been lawful.

Challenging the Lawfulness of Detention

Kim v. Russia concerned the detention of a stateless person, whom the authorities initially took to be a national of Uzbekistan, with a view to his expulsion. The applicant complained in particular of the conditions of his two-year detention in the detention centre for aliens. He also submitted that his detention had been unlawful, both on account of its excessive length and the impossibility to enforce the order for his expulsion, and that he had been unable to obtain a judicial review of his detention.

The Court held that there had been a violation of Article 5 § 1 (right to liberty and security) and a violation of Article 5 § 4 (right to have lawfulness of detention decided speedily by a court) of the Convention. It found in particular that the applicant had had no procedure available to him to challenge his detention, and that he had remained in detention even though there was no realistic prospect of securing his expulsion. The authorities had therefore lacked the required diligence in view of the situation.

Mahammad and Others v. Greece concerned the conditions of the applicants’ detention, and the lawfulness of that detention, in the Fylakio administrative detention centre in Greece. The Court held that there had been a violation of Article 5 § 4 (right to have lawfulness of detention decided speedily by a court) of the Convention on account of the shortcomings in the procedure for reviewing the lawfulness of the applicants’ administrative detention. It also found that there had been a violation of Article 3 (prohibition of inhuman or degrading treatment) of the Convention on account of the applicants’ detention conditions.

A.M. v. France  concerned a complaint about the lack of an effective remedy to contest the lawfulness of a detention order against an alien in France which had led to his deportation from French territory. The applicant, a Tunisian national, complained, essentially, of the lack of suspensive effect of his appeal against the deportation order and of the excessively restrictive nature of the review conducted by the French Administrative Court of the lawfulness of that order.
The Court held that there had been a violation of Article 5 § 4 (right to a speedy decision on the lawfulness of detention) of the Convention, finding that the applicant had not benefited from an effective remedy for the purposes of that provision.

Speedy Decision Right

O.S.A. and Others v. Greece concerned the conditions of detention of the applicants, Afghan nationals, in the Vial centre on the island of Chios (Greece), and the issues of the lawfulness of their detention, the courts’ review of their case, and the information provided to them.
The Court held that there had been a violation of Article 5 § 4 (right to a speedy decision on the lawfulness of detention) of the Convention. It considered in particular that, in view of the circumstances, the applicants had not had access to remedies by which to challenge the decisions ordering their expulsion and the extension of their detention.

Kaak and Others v. Greece concerned the conditions of detention of Syrian, Afghan and Palestinian nationals in the “hotspots” of Vial and Souda (Greece), and the lawfulness of their detention in those camps. The applicants complained in particular about a lack of free legal aid and the fact that there was no administrative court on Chios, which, in their view, rendered any complaints about their detention impossible in practice, and consequently arbitrary.

The Court held that there had been a violation of Article 5 § 4 (right to a speedy decision on the lawfulness of detention) and no violation of Article 5 § 1 (right to liberty and security) of the Convention. It reiterated in particular its previous finding that a period of one month’s detention in the Vial camp should not be considered excessive, given the time needed to comply with the relevant administrative formalities. In addition, the length of the applicants’ detention once they had expressed their wish to apply for asylum had been relatively short. In contrast, the applicants, who did not have legal assistance, had not been able to understand the content of the information brochure; in particular, they were unable to understand the material relating to the various appeal possibilities available under domestic law.

E.K. v. Greece 2021 case concerned the conditions of detention of the applicant, a Turkish national, in the Soufli and Feres border posts, the Attika Sub-Directorate for Aliens (Petrou Ralli) and the Amygdaleza Detention Centre, the lawfulness of his detention, and whether the review of the lawfulness of that detention had been effective.

The Court held that there had been a violation of Article 5 § 4 (right to a speedy decision on the lawfulness of detention) of the Convention, finding that the applicant had not benefited from a sufficiently thorough assessment of the lawfulness of his detention to highlight the remedies and other channels provided under domestic law and case-law. That had been particularly true with regard to the complaints concerning his conditions of detention, in which connection the Court had found violations on several occasions in other cases.

The Court held, however, that there had been no violation of Article 3 (prohibition of inhuman or degrading treatment) of the Convention in the present case, finding that the applicant’s conditions of detention had not been contrary to the Convention in any of the establishments in which he had been detained, with reference, in particular, to several reports by international organisations having visited them. The Court also held that there had been no violation of Article 5 § 1 (right to liberty and security) of the Convention, finding that the applicant’s detention had not been arbitrary and had been “lawful”.