Zitieren als:
EGMR, Urteil vom 06.03.2001 - 40907/98 - M0315
Schlagwörter: Griechenland, Ausweisung, Abschiebung, Abschiebungshaft, Haftbedingungen, menschenrechtswidrige Behandlung, Freiheitsentziehung
Normen: EMRK Art. 3; EMRK Art. 5


44. The Court recalls that, according to the Convention organs case-law, ill-treatment must attain a minimum level of severity if it is to fall within the scope of Article 3 (Ireland v. the United Kingdom judgment of 18 January 1978, Series A no. 25, p. 65, § 162). The same holds true insofar as degrading treatment is concerned (Costello-Roberts v. the United Kingdom, Series A no. 247-C, p. 59, § 30). The assessment of this minimum level of severity is relative; it depends on all the circumstances of the case, such as the duration of the treatment, its physical and mental effects and, in some cases, the sex, age and state of health of the victim (see the abovementioned Ireland v. the United Kingdom and Costello-Roberts v. the United Kingdom judgments, loc. cit.).

45. In the present case the Court notes that the applicant was first held for several months at the Drapetsona Police Station, which is a detention centre for persons held under Aliens legislation. He alleges, inter alia, that he was confined in an overcrowded and dirty cell with insufficient sanitary and sleeping facilities, scarce hot water, no fresh air or natural daylight and no yard in which to exercise. It was even impossible for him to read a book because his cell was so overcrowded. In April 1998 he was transferred to the Police Headquarters in Alexandras Avenue, where conditions were similar to those in Drapetsona and where he was detained until 3 December 1998, the date of his expulsion to Syria. The Court observes that the Government did not deny the applicant's allegations concerning overcrowding and a lack of beds or bedding.

46. The Court considers that conditions of detention may sometimes amount to inhuman or degrading treatment. In the Greek case (Yearbook of the European Convention on Human Rights no. 12, 1969), the Commission reached this conclusion regarding overcrowding and inadequate facilities for heating, sanitation, sleeping arrangements, food, recreation and contacts with the outside world. When assessing conditions of detention, account has to be taken of the cumulative effects of these conditions, as well as of specific allegations made by the applicant. In the present case, although the Court has not conducted an on-site visit, it notes that the applicant's allegations are corroborated by the conclusions of the CPT report of 29 November 1994 regarding the Police Headquarters in Alexandras Avenue. In its report the CPT stressed that the cellular accommodation and detention regime in that place were quite unsuitable for a period in excess of a few days, the occupancy levels being grossly excessive and the sanitary facilities appalling. Although the CPT had not visited the Drapetsona detention centre at that time, the Court notes that the Government had described the conditions in Alexandras as being the same as in Drapetsona, and the applicant himself conceded that the former were slightly better with natural light, air in the cells and adequate hot water.

47. Furthermore, the Court does not lose sight of the fact that in 1997 the CPT visited both the Alexandras Police Headquarters and the Drapetsona detention centre and felt it necessary to renew its visit to both places in 1999. The applicant was detained in the interim from July 1997 to December 1998.

48. In the light of the above, the Court considers that the conditions of detention of the applicant in the Alexandras Police Headquarters and the Drapetsona detention centre, in particular the serious overcrowding and absence of sleeping facilities, combined with the inordinate length of the period during which he was detained in such conditions, amounted to degrading treatment contrary to Article 3.

49. Accordingly, there has been a violation of Article 3 of the Convention.


54. The Court recalls that it is not in dispute that the applicant was detained "with a view to deportation" within the meaning of Article 5 § 1 (f). However, it falls to the Court to examine whether the applicant's detention was "lawful" for the purposes of Article 5 § 1 (f), with particular reference to the safeguards provided by the national system. Where the "lawfulness" of detention is in issue, including whether "a procedure prescribed by law" has been followed, the Convention refers essentially to the obligation to conform to the substantive and procedural rules of national law, but it requires in addition that any deprivation of liberty should be in keeping with the purpose of Article 5, namely to protect the individual from arbitrariness (see Chahal v. the United Kingdom judgment of 15 November 1996, Reports of Judgements and Decisions, 1996-V, § 118).

55. In this respect, the Court recalls that in laying down that any deprivation of liberty must be effected "in accordance with a procedure prescribed by law", Article 5 § 1 primarily requires that any arrest or detention have a legal basis in domestic law. However, these words do not merely refer back to domestic law; they also relate to the quality of the law, requiring it to be compatible with the rule of law, a concept inherent in all Articles of the Convention. Quality in this sense implies that where a national law authorises deprivation of liberty, it must be sufficiently accessible and precise, in order to avoid all risk of arbitrariness (see the Amuur v. France judgment of 25 June 1996, Reports of Judgments and Decisions 1996-III, § 50).

56. The Court notes that Section 27 § 6 of Law No. 1975/1991, which applies to the expulsion of aliens by administrative order, provides for the detention of an alien on condition that the execution of an administrative order for expulsion taken by the Minister of Public Order is pending, and that the alien is considered to be a danger to public order or might abscond. In the present case the expulsion of the applicant was ordered by a court and not by an administrative decision. Moreover, the applicant was not considered a danger to public order. The indictments chamber, which ordered his release from prison in July 1997, held that it transpired from the applicant's conduct during detention that he was not going to commit any further offences when released and that it was not necessary to prolong his detention.

57. The Court further notes that on 1 April 1993 the Deputy Public Prosecutor of the Court of Cassation opined that decision No. 4803/13/7A/18-26.6.92 applied by analogy in cases of expulsion ordered by courts. The Court does not consider that the opinion of a senior public prosecutor – concerning the applicability by analogy of a ministerial decision on the detention of persons facing administrative expulsion – constituted a "law" of sufficient "quality" within the meaning of the Court's case-law.

58. In these circumstances, the Court finds that there has been a breach of Article 5 § 1 of the Convention in the present case.

59. Having found that the detention of the applicant did not in any event comply with the requirement of Article 5 § 1, the Court does not find it necessary to examine separately whether that provision was also violated by reason of the length of the applicant's detention.

60. Examining the applicant's complaint from the viewpoint of Article 5 § 4 of the Convention, the Government argue that the Article 5 § 4 review was incorporated in the court decisions ordering the applicant's expulsion (16 July 1997) and refusing to revoke it (11 May 1998).

61. The Court recalls that the notion of "lawfulness" under paragraph 4 of Article 5 has the same meaning as under paragraph 1, so that the detained person is entitled to a review of his detention in the light not only of the requirements of domestic law but also of those in the text of the Convention, the general principles embodied therein and the aim of the restrictions permitted by Article 5 § 1. Article 5 § 4 does not guarantee a right to a judicial review of such breadth as to empower the Court, on all aspects of the case including questions of pure expediency, to substitute its own discretion for that of the decision-making authority. The review should, however, be wide enough to bear on those conditions which are essential for the "lawful" detention of a person according to Article 5 § 1 (see the above-mentioned Chahal v. the United Kingdom judgment, § 127).

62. The Court notes that the requests of the applicant of 28 November 1997 and 26 July 1998 to the Ministers of Justice and Public Order to release him cannot be considered effective remedies whereby the applicant could challenge the lawfulness of his detention. By submitting them, the applicant appealed to the discretionary leniency of these Ministers, who either rejected them or left them unanswered. Moreover, in its decision of 11 May 1998, the indictments chamber of the first instance criminal court of Piraeus, sitting in camera, failed to rule on the applicant's claim concerning his detention.

63. It follows that the domestic legal system did not afford the applicant an opportunity to have the lawfulness of his detention pending expulsion determined by a national court, as required by Article 5 § 4.

64. The Court concludes that there has also been a violation of Article 5 § 4 of the Convention.