H.T. v. Germany and Greece (Application no. 13337/19)
- Author: The European Court of Human Rights (Fourth Section)
- Document source:
-
Date:
15 October 2024
H.T. v. Germany and Greece (no. 13337/19)
In this section
The application concerns, firstly, the removal of the applicant, a Syrian national who had expressed his intention to seek asylum to the German authorities, from Germany to Greece under an administrative arrangement between the two countries. The applicant was removed on the day of his arrival. He alleged a violation by Germany of, in particular, Article 3 of the Convention. The application concerns, secondly and under Articles 3 and 5 §§ 1 and 4 of the Convention, the conditions and legality of the applicant’s subsequent detention in Greece as well as the judicial control of that detention’s legality.
The applicant was born in 1993. He was represented by Mr A. Konstantinou, Ms E. Koutsouraki and Mr V. Papadopoulos, lawyers practising in Athens.
3. The Greek Government were represented by their Agent’s delegate, Mr K. Georgiadis, Senior Advisor at the State Legal Council. The German Government were represented by two of their agents, Mr H.-J. Behrens and Ms N. Wenzel, of the Federal Ministry of Justice.
4. The facts of the case may be summarised as follows.
THE APPLICANT’S ARRIVAL IN GREECE ON THE FIRST OCCASION
5. On 30 June 2018 the applicant, a Syrian national, arrived on Megisti island, in Greece. He was detained upon arrival.
6. On 4 July 2018 the Greek authorities ordered his removal to Türkiye on the basis of an agreement concluded between the member States of the European Union and Türkiye on 18 March 2016 (“the EU-Türkiye Statement”), which provides for migrants to be returned from Greece to Türkiye under certain conditions when they arrive irregularly. The applicant’s detention for the purposes of deportation was ordered, and he remained in detention in the police department of Megisti until his transfer to Leros island on 14 July 2018.
7. On 18 July 2018 the applicant lodged an asylum application with the Regional Asylum Office of Leros. A condition not to leave Leros island (a “geographical limitation”) was imposed on him (see paragraph 53 below). Execution of the removal order was suspended until the asylum or readmission procedure was completed.
8. According to the applicant, he was exposed to substandard living conditions in the Leros Reception and Identification Centre, a reception and identification centre (a “hotspot”), owing to overcrowding and poor reception conditions, and he left Leros for that reason. He was subsequently unable to continue the asylum procedure, as applications for international protection submitted by applicants who were subject to a condition not to leave a given island could only be examined by the competent asylum authorities of the respective island.
9. On 13 August 2018 the Greek Asylum Service discontinued the examination of the applicant’s asylum application, as he did not attend the asylum interview scheduled for that day.
10. According to the applicant, he left Greece owing to the lack of effective access to international protection and his fear that he would be arrested, detained and returned to Leros.
11. According to the German Government, the events unfolded as follows. On an unspecified date the applicant travelled to Hungary. On 4 September 2018 he attempted to enter Germany via Austria by bus. At about 5 a.m. he was stopped during a check carried out by officers of the German Federal Police in the immediate vicinity of the German-Austrian border, in the Rottal-Ost area on the BAB3, a German federal motorway. The applicant tried to identify himself using a Bulgarian identity card issued to a different person. A search of the police databases showed that the identity card had been reported stolen. The applicant told the officers that he had bought the identity card in Greece for 2,000 euros (EUR) from a person he did not know. The officers searched the applicant and found, among other things, a Syrian identity card, a certificate of arrival issued by the Greek authorities and handwritten notes about organisations in Germany which helped refugees. The applicant told the officers that he intended to travel to Dortmund, where his brother lived; his brother had already applied for asylum there.
12. The applicant was placed under provisional arrest on suspicion of unauthorised entry, unlawful residence and misuse of identity papers. As a person subject to provisional arrest, the applicant was informed that he had the right to contact defence counsel and to notify a relative or a person of his choosing of his arrest at any time, and that he could request that a person translate and interpret for him. The order for his provisional arrest, including the above-mentioned information as to his rights, was given to the applicant in writing, in Arabic.
13. The officers took the applicant to Passau police station for questioning. There, the applicant was informed about his rights again and he was given an Arabic-speaking interpreter. The applicant indicated his wish to apply for asylum in Germany and to live with his brother in Dortmund. He expressly refused to consent to the Syrian mission in Germany being notified of his arrest. While being questioned as an accused person, the applicant was informed that he was to be returned to Greece. When asked by the officers if he would make himself available for voluntary return, the applicant stated that he would.
14. The applicant was further informed that he was being refused entry because he had presented forged travel documents and did not possess the documents which would have permitted him to enter and reside in Germany, and he was heard on these points in the presence of an interpreter. The written refusal of entry issued under the Schengen Borders Code contained information including an Arabic translation of instructions on the right of appeal, which stated that an objection to the order refusing entry could be lodged with the Munich police headquarters within one month following notification of the refusal. That written decision also stated that the applicant would be returned to Austria.
15. The applicant was returned to Athens by plane at 7.20 p.m. that same day, that is, 4 September 2018, on the basis of the “Administrative Arrangement between the Ministry of Migration Policy of the Hellenic Republic and the Federal Ministry of the Interior, Building and Community of the Federal Republic of Germany on cooperation when refusing entry to persons seeking protection in the context of temporary checks at the internal German-Austrian border” concluded in 2018 (see paragraph 63 below, hereafter “the administrative arrangement between Germany and Greece”). The German police issued a “notification of refusal of entry” to the Greek authorities, which stated that the applicant had been apprehended during a check at the border between Germany and Austria while attempting to enter Germany, that he did not meet the conditions for entry, that he had expressed a desire for international protection and that the Eurodac database showed that he had applied for asylum in Leros on 18 July 2018 (see paragraph 7 above).
16. Shortly before the applicant was due to depart for the airport, the German officers in charge became aware that the “written notice of refusal of entry issued under the Schengen Borders Code” (see paragraph 14 above) was not the correct document by which to refuse the applicant entry. Therefore, shortly before departing, the applicant was issued with a refusal of entry for asylum-seekers, which an officer orally explained to him in English. An Arabic-speaking interpreter was not available at the time. The order refusing him entry was based on section 18(2) point 2 of the Asylum Act (see paragraph 54 below) and stated that there were indications that Greece had a responsibility to take back the applicant, under Regulation (EU) No 604/2013 of the European Parliament and of the Council of 26 June 2013 establishing the criteria and mechanisms for determining the Member State responsible for examining an application for international protection lodged in one of the Member States by a third-country national or a stateless person (recast) (see paragraph 61 below; hereafter “the Dublin III Regulation”). The order had a notice of the right to appeal attached to it, which indicated that any action against the decision should be brought before the Munich Administrative Court within two weeks after it had been delivered (section 74(1) of the Asylum Act, see paragraph 54 below).
The applicant’s version of events
17. The applicant’s version of events differs from the one provided by the Government on the following points. According to the applicant, during his questioning at the police station he stated that he wished to apply for asylum in Germany. He was never willing to consent to being returned to Greece from Germany, as proven by the fact that he expressed his wish to apply for asylum to the German authorities. The German police officers told him during the questioning that he would be returned to Greece in any event, on a voluntary basis or otherwise, and that his asylum application would not be registered in Germany. Indeed, his asylum application was never registered, contrary to Germany’s obligation under, inter alia, the 1951 Convention relating to the Status of Refugees (see paragraph 57 below; hereafter, “the 1951 Convention”) and European Union (EU) law. He was never assisted by a lawyer and could not have access to reliable legal information concerning his right to remain in German territory to have his asylum application registered and examined. He asked to consult a lawyer for the criminal proceedings, but for reasons unknown to him he was never put in touch with one.
18. During his questioning as an accused at the police station, the applicant was informed of the initial decision to refuse him entry. He received contradictory information at this stage. He was initially informed orally that he had been refused entry and that he was to be returned to Greece. No information on his right to have access to a lawyer or on available legal remedies was provided during the questioning. A written decision on refusal of entry under the Schengen Borders Code was given to the applicant, together with an information note in Arabic regarding the refusal of entry. Unlike the oral information he had previously been given, the written information mentioned that he would be returned to Austria. The same document, informing him about his return to Austria, mentioned his right to lodge an appeal with the Munich police headquarters (see paragraph 14 above). No information on legal assistance was provided in this note.
19. Arabic was the only language the applicant understood. For that reason, his questioning at the police station was in Arabic, with the assistance of an interpreter, and he was served with the initial refusal of entry decision based on the Schengen Borders Code in Arabic. The later decision on refusal of entry for asylum-seekers was not explained to him by any officer in any language, and the Government did not provide any document to the Court to show that that decision had been explained to him, even in English.
20. According to the applicant, he remained in Germany for only a few hours, as he was arrested at 5.15 a.m. on 4 September 2018 and returned to Greece at 7.20 p.m. the same day. He was transferred several times during those hours. His mobile phone was confiscated and he was allowed to make one phone call. He called his brother, who did not pick up the call.
77. The applicant alleged that the conditions of his detention in Greece following his return from Germany had amounted to inhuman and degrading treatment within the meaning of Article 3 of the Convention, which reads:
“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”
86. The applicant complained that his detention in Greece had been arbitrary, in breach of Article 5 § 1 of the Convention, the relevant parts of which read as follows:
“1. Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:
(f) the lawful arrest or detention of a person to prevent his effecting an unauthorised entry into the country or of a person against whom action is being taken with a view to deportation or extradition.”
99. The applicant further complained that he had not had at his disposal an effective remedy by which he could challenge the lawfulness of his detention, as provided for by Article 5 § 4 of the Convention, which reads as follows:
“Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.”
110. The applicant complained that his removal from Germany to Greece had been contrary to Article 3 of the Convention for two reasons. Firstly, he had been removed without his asylum application being registered by the German authorities and without an assessment of the risk of chain refoulement from Greece to Türkiye and ultimately to his country of origin, Syria. Secondly, he had been removed to Greece without the German authorities assessing the risk of him being detained in Greece in conditions in breach of Article 3, and without any individual guarantees being obtained as regards the treatment which he would face in Greece, despite there being substantial grounds to believe that he would be detained in conditions contrary to Article 3.
83. Turning to the present case, the Court notes that the applicant was detained for a period of two months and seventeen days in Leros police station, a facility which, in terms of its design, lacked the amenities required for prolonged periods of detention.
84. Having regard to its case-law on the subject and the material submitted by the parties, the Court notes that the Government did not put forward any fact or argument capable of persuading it to reach a different conclusion in the present case from the one it reached in the above-cited cases.
85. There has accordingly been a violation of Article 3 of the Convention.
97. With respect to the conditions of detention at the police station where the applicant was detained the Court has already found a violation of Article 3 (see paragraphs 81-85 above). It therefore does not consider it necessary to address this aspect again under Article 5 § 1 (f) (see, for example, Ha.A. v. Greece, no. 58387/11, § 41, 21 April 2016, and R.T. v. Greece, cited above, § 85, with further references).
108. The Court considers that the amendment of Article 76 of Law no. 3386/2005 (see paragraph 105 above) serves to reinforce the guarantees of which foreigners detained with a view to expulsion should have the benefit. However, the Court finds that in the present case, the applicant did not have the benefit of an examination of the legality of his detention which was as thorough as that provided for in the amended version of paragraph 5 of Article 76, especially since the complaint mainly concerned his conditions of detention, in relation to which the Court had already found violations in similar cases. In the Court’s view, such a complaint certainly deserved a reply from the authorities (see, mutatis mutandis, G.B. and Others v. Turkey, no. 4633/15, §§ 175-76, 17 October 2019).
109. There has accordingly been a violation of Article 5 § 4 of the Convention.
119. The Court takes note of the Government’s submission that the applicant agreed to make himself available for voluntary return to Greece when he was questioned at Passau police station (see paragraphs 13 and 111 above). Even assuming that the rights guaranteed by Article 3 of the Convention can be waived at all, such as by a person agreeing to make himself available for voluntary return (in this regard, see Akkad v. Turkey, no. 1557/19, § 74, 21 June 2022; M.A. v. Belgium, no. 19656/18, §§ 60-61, 27 October 2020; and M.S. v. Belgium, no. 50012/08, §§ 121-25, 31 January 2012), the Court reiterates that for a waiver to be effective for Convention purposes, it must be established in an unequivocal manner and be attended by minimum safeguards commensurate to its importance; it must be voluntary and constitute a knowing and intelligent relinquishment of a right (see, more generally, Murtazaliyeva v. Russia [GC], no. 36658/05, § 117, 18 December 2018). In the present case, it has not even been established that the applicant agreed to make himself available for voluntary return to Greece, given that he asserted that he had never consented to this (see paragraphs 17 and 114 above) and that no evidence – in the form of a signed voluntary return form, for example – was submitted to the Court (compare and contrast Akkad, § 74, and M.A. v. Belgium, § 29, both cited above). This is sufficient for the Court to conclude that the applicant did not waive his rights under Article 3 of the Convention.
129. The Court further observes that the complaint is neither manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention, nor inadmissible on any other grounds. It must therefore be declared admissible.
FOR THESE REASONS, THE COURT, UNANIMOUSLY,
Declares the application admissible;
Holds that there has been a violation by Greece of the substantive limb of Article 3 of the Convention;
Holds that there has been no violation by Greece of Article 5 § 1 of the Convention;
Holds that there has been a violation by Greece of Article 5 § 4 of the Convention;
Holds that there has been a violation by Germany of the procedural limb of Article 3 of the Convention;
Holds that there is no need to examine the merits of the applicant’s complaint directed against Germany under Article 13 of the Convention, taken in conjunction with Article 3;
Holds
(a) that the Greek Government is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, EUR 6,500 (six thousand five hundred euros), plus any tax that may be chargeable, in respect of non‑pecuniary damage;
(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;
Holds
(a) that the German Government is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, EUR 8,000 (eight thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;
(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;
Dismisses the remainder of the applicant’s claim for just satisfaction.
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