Ahmade v. Greece (no. 50520/09) [Articles 3, 5 and 13]

Friday, October 4, 2013

The applicant, Seydmajed Ahmade, is an Afghan national who lives in Athens (Greece). Mr Ahmade arrived in Greece on 23 December 2007. He was arrested several times between then and 11 August 2008 and each time various removal decisions were taken against him. Following a fight, the applicant was arrested again on 27 August 2009. His removal was ordered once again and he was held at the police station on the ground that he posed a threat to public order and was likely to abscond on account of the criminal proceedings against him concerning the fight. He was committed for trial before the Athens Criminal Court, in particular for illegally entering Greece. On 31 August 2009, for that offence alone, he was given a suspended sentence of 30 days’ imprisonment and fined 40 euros for costs. As he could not pay that sum he was held at the police station for 8 days. On 8 September the applicant lodged an asylum application with the Refugee Commission. Mr Ahmade applied to the President of the Athens Administrative Court on 11 September 2009 to complain about the conditions of his detention, referring among other things to the overcrowding and atrocious hygiene in the police cells. Even though the main criminal proceedings had in the meantime been discontinued and in spite of his asylum application, he was unsuccessful in the first instance and on appeal and was held in custody on the ground that he might abscond because of his illegal situation. Mr Ahmade’s detention, which was extended in order to guarantee his removal, lasted for 83 days in total in the cells of two police stations in Athens. He was released on 18 November pending a decision on his asylum application, which was ultimately dismissed on 14 December 2009. He lodged two appeals against that decision.

Relying on Article 3 (prohibition of inhuman and degrading treatment) and Article 13 (right to an effective remedy) of the Convention, Mr Ahmade complained about the conditions in which he was detained in the Athens police stations between 27 August and 18 November 2009 and the lack of an effective remedy in that connection. He also alleged that, were he to be removed to Afghanistan, he would face inhuman treatment on account of the current conditions in that country. Under Article 5 § 1 (right to liberty and security) the applicant further complained that his detention had been arbitrary, and under Article 5 § 4 that the review of the lawfulness of the detention pending removal had been ineffective.

The Court ruled:

-Regarding Article 3:
The Court referred to a number of reports criticizing the poor detention conditions that the applicant was held in. Pointing out that the applicant had been held for a total of 83 days in two police stations, the Court observed that Greek regulations normally allowed detention in a police station only for the duration that was strictly necessary to arrange transfer to a prison. The Court thus concluded that the holding of Mr Ahmade in custody constituted degrading treatment in breach of Article 3.

-Regarding Article 3 in conjunction with Article 13:
The Court found that Greek law allowed the courts to examine the decision to detain an illegal immigrant only on the basis of a risk of absconding or of a threat to public order but did not give the courts jurisdiction to examine the living conditions in detention centres for illegal immigrants or to order the release of a detainee on the grounds of such conditions. The Court further noted that the applicant had complained about the poor conditions of his detention on two occasions before the President of the Athens Administrative Court, but had received no answer. The Court concluded that the applicant did not have an effective remedy by which to complain about the conditions of his detention, in breach of Articles 3 taken together with 13.

-Regarding Article 13 in conjunction with Article 3:
Bearing in mind its findings regarding certain systemic shortcomings in the Greek asylum system, the Court noted that, in the present case, the actions brought by the applicant in seeking the annulment of the Refugee Commission’s Decision of 14 December 2009 rejecting his asylum application, and in requesting a stay of execution of that decision, were still pending. The Court considered that such a length of time was not reasonable in the case of appeals against removal decisions, especially as the purpose of requesting a stay of execution was precisely to obtain a speedy decision. The Court thus found that there had been a violation of Article 13 taken together with Article 3 on account of the shortcomings in the Greek asylum system and the risk faced by the applicant, which still existed, of being deported before his asylum appeal had been examined.

-Regarding Article 5 § 1 and 4:
The Court took the view that the close connection between the applicant’s detention between 8 September 2009 and 18 November 2009 and the possibility of removing him from Greece could not be established and thus found that the detention was not “lawful” within the meaning of Article 5 § 1 (f). Furthermore, the Court found that Greek law fell short of the requirements of Article 5 § 4 and thus that there had been a violation of Article 5 § 4.

-Just satisfaction:
The court held that Greece was to pay the applicant 10,000 euros (EUR) in respect of non-pecuniary damage, and EUR 2,500 in respect of costs and expenses.

For the full text of the judgment (available only in French) please visit: ECtHR: Ahmade v. Greece (no. 50520/09)

For the full text of the press release on the judgment please visit:ECtHR: Press Release: Greek authorities unlawfully detained an Afghan asylum seeker in degrading conditions

This item was reproduced with the permission of ECRE from the weekly ELENA legal update supported by the Fundamental Rights and Citizenship Funding Programme and distributed by email. 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 published but no responsibility for its accuracy and correctness, or for any consequences of relying on it, is assumed by ECRE, the IRC or its partners.



Effective remedy (right to)
Inhuman or degrading treatment or punishment