issued by the Registrar of the Court
ECHR 033 (2011)
07.06.2011
Asylum seeker treated in manner incompatible with the
Convention with no remedies by which to complain
In today’s Chamber judgment in the case R.U. v. Greece (application no. 2237/08),
which is not final 1 , the European Court of Human Rights held, unanimously, that there
had been a
Violation of Article 3 (prohibition of inhuman or degrading treatment) of the
European Convention on Human Rights on account of the conditions of his detention in
the Soufli and Petrou Ralli detention centres;
Violation of Article 13 (right to an effective remedy) taken in conjunction with
Article 3 on account of the deficiencies in the asylum procedure and the risk of
deportation to Turkey without a proper examination of the merits of his asylum
application and without access to an effective remedy;
Violation of Article 13 regarding the possibility of complaining about the conditions of
detention;
Violation of Article 5 § 1 (right to liberty and security); and a
Violation of Article 5 § 4.
The case concerned the principle and the conditions of keeping in detention in Greece a
Turkish asylum seeker of Kurdish origin, who had been tortured in Turkey, and the
conduct of the asylum procedure.
Principal facts
The applicant, R.U., was born in 1969 and lives in Athens. He is of Kurdish origin and
was arrested by the Turkish authorities several times between 1985 and 1992 on
account of his political activities. He alleged that he had been sentenced to 15 years’
imprisonment and tortured while in prison. After going on hunger strike in detention, he
started suffering from Wernicke-Korsakoff syndrome. He finished serving his sentence in
2007. After being released, and fearing a further arrest, he decided to leave Turkey and
seek asylum in Greece.
On 12 May 2007, R.U. entered Greece and was arrested by the Greek authorities for
illegal entry into Greece and possession of forged travel documents. He stated that he
filed an asylum request as soon as he was arrested but that it had not been registered.
On the same day the public prosecutor at the Criminal Court committed him for trial, set
the case down for hearing on 17 May 2007 and released the applicant pending the
hearing.
1 Under Articles 43 and 44 of the Convention, this Chamber judgment is not final. During the three-month
period following its delivery, any party may request that the case be referred to the Grand Chamber of the
Court. If such a request is made, a panel of five judges considers whether the case deserves further
examination. In that event, the Grand Chamber will hear the case and deliver a final judgment. If the referral
request is refused, the Chamber judgment will become final on that day.
Once a judgment becomes final, it is transmitted to the Committee of Ministers of the Council of Europe for
supervision of its execution. Further information about the execution process can be found here:
www.coe.int/t/dghl/monitoring/execution
R.U. was arrested again that day. On 13 May 2007 the head of the Alexandroupolis
police headquarters, fearing that the applicant would flee, ordered him to be placed in
detention pending his deportation three days later.
R.U. alleged that he had made further applications for asylum on 13 and 15 May 2007
but that neither had been examined.
On 17 May 2007 R.U. was transferred to the Alexandroupolis police headquarters for
questioning in connection with his asylum application. He explained the reasons for his
asylum application, saying that he had been persecuted and tortured in Turkey for his
political convictions.
On the same day he was acquitted by the Alexandroupolis Criminal Court of the charges
of illegally entering Greece and using forged travel documents. The court accepted that
R.U. was a Turkish citizen, a member of an illegal left-wing political party, that he had
been convicted and imprisoned in Turkey as a political detainee and that he had been
forced to flee Turkey urgently because his life was endangered.
On the same day the head of the Alexandroupolis police headquarters ordered R.U. to be
deported for illegal entry into Greece and possession of forged administrative
documents. His detention was extended on grounds of a risk that he would abscond. On
22 May 2007 R.U. appealed against the deportation order to the regional director of the
police. His appeal was dismissed on 24 May 2007 by a decision served on him in Greek
which he could not challenge because he lacked sufficient funds.
On 24 May 2007 R.U. complained about his detention before the President of the
Alexandroupolis Administrative Court, who dismissed his complaint that day, considering
that having regard in particular to his illegal entry into Greece and his asylum
application, he did not appear to have the intention of leaving Greece if released.
On 6 June 2007 his asylum application was rejected by the Ministry of Public Order. On
12 June 2007 R.U. appealed against that decision. On 12 July 2007 the Advisory
Committee on Asylum of the Ministry of Public Order adjourned the examination of the
asylum application to an unspecified date so that R.U. could submit evidence in support
of his asylum application and undergo an examination by the Medical Rehabilitation
Centre for Torture Victims, a non-governmental organisation. The procedure in respect
of the asylum application is pending.
In July 2007 R.U. repeated his objections to his detention, relying on the indefinite
adjournment of the examination of his asylum application. On 16 July 2007 the President
of the Alexandroupolis Administrative Court ordered his release.
R.U. was detained mainly (12 May 2007 - 10 July 2007) in the Soufli border police
station. He claimed that he had been held in a dirty room with 50 other detainees, with
one shower and a room used for the toilets. He added that he had never been able to
have a shower or do any physical exercise, and that he had had no contact with the
outside world because there had been no telephone booth. He alleged, lastly, that he
had received no appropriate treatment for his medical condition. Between 10 and 16 July
2007 he had been held in the Attica Foreign Citizens’ Directorate (Petrou Ralli).
After his release, he was examined by the President of the Medical Rehabilitation Centre
for Torture Victims. According to a medical report issued by the centre on 19 September
2007, R.U. had been systematically beaten and his left foot had been seriously injured.
Gangrene had set in, so he had had to undergo surgery and have two toes on his left
foot amputated. The report also documented acts of torture: contact with a red hot cable
on his little finger, “Palestinian” hanging, twising of the testicules and blows to the neck
which had caused migraines and spasms. Neurological and orthopaedic examinations
subsequently performed on the applicant in State hospitals confirmed that part of his left
2
foot had been amputated and that he was probably suffering from Wernicke-Korsakoff
syndrome and a discal hernia.
The deportation order against R.U. has not been executed to date.
Complaints, procedure and composition of the Court
Relying on Article 3 (prohibition of inhuman or degrading treatment) and Article 13 (right
to an effective remedy), R.U. complained about his conditions of his detention in the
Soufli and Petrou Ralli detention centres and the risk he would incur if deported to
Turkey – where had had been tortured – as a result of the deficiencies in the asylum
procedure in Greece. Relying on Article 5 §§ 1 (f) and 4, he also complained of the
unlawfulness of his detention and his inability to obtain a decision from a Greek court in
that regard.
The application was lodged with the European Court of Human Rights on 23 November
2007.
Judgment was given by a Chamber of seven judges, composed as follows:
Nina Vajić (Croatia), President,
Christos Rozakis (Greece),
Peer Lorenzen (Denmark),
Khanlar Hajiyev (Azerbaijan),
George Nicolaou (Cyprus),
Mirjana Lazarova Trajkovska (“the former Yugoslav Republic of Macedonia”),
Julia Laffranque (Estonia), Judges,
and also Søren Nielsen, Section Registrar.
Decision of the Court
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 hierarchichal superior of the police, whose impartiality and objectivity in the matter
were open to doubt. The courts did not have power to examine the living conditions in
detention centres for clandestine foreigners. The Court was therefore competent to
examine this complaint on the merits.
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 2 , 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 (see above), there had also been a violation of Article 13.
2
S.D. v. Greece (no. 53541/07, 11 June 2009)
3
Risk of deportation to Turkey as a result of deficiencies in the asylum procedure
(Articles 3 and 13)
Extradition by a Contracting State could raise an issue under Article 3 where substantial
grounds were made out for believing that the person concerned faced a real risk of being
subjected to torture or to inhuman or degrading treatment or punishment in the country
to which he or she was returned.
Here as well the Court had to determine first whether remedies were available to R.U. in
Greece that would prevent his deportation to Turkey. It observed that in this area 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 in a recent judgment 3 , it had found 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 Greek Government argued that R.U. could have avoided
being deported to Turkey by lodging an application for judicial review of the deportation
order with the administrative courts, and that he could have applied for a stay of
execution of the deportation order and filed a request for an interim order. The Court
pointed out, however, 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 asyum proceedings, by which to
complain of his deportation to Turkey. He could not therefore be blamed for failing to
exhaust domestic remedies and his complaint could be examined on the merits.
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 (see
above), 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.
Lawfulness of the detention with a view to expulsion (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.
3
M.S.S. v. Belgium and Greece, Grand Chamber (no. 30696/09, 21 June 2011)
4
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 had recently had occasion to note the inadequacies of Greek law regarding the
effectiveness of judicial review of detention with a view to expulsion and had concuded
that they did not meet the requirements of Article 5 § 4 4 .
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.
Article 41
Under Article 41 (just satisfaction) of the Convention, the Court held that Greece was to
pay R.U. 15,000 euros (EUR) in respect of non-pecuniary damage.
The judgment is available only in French.
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The European Court of Human Rights was set up in Strasbourg by the Council of
Europe Member States in 1959 to deal with alleged violations of the 1950 European
Convention on Human Rights.
4
A.A. v. Greece (no. 12186/08, 22 July 2010)
5