European Court of Human Rights

FIFTH SECTION

CASE OF A.I. AND OTHERS v. GREECE

(Application no. 13958/16)

JUDGMENT
 

STRASBOURG

18 January 2024

This judgment is final but it may be subject to editorial revision.

In the case of A.I. and Others v. Greece,

The European Court of Human Rights (Fifth Section), sitting as a Committee composed of:

 Stéphanie Mourou-Vikström, President,
 Lado Chanturia,
 Mattias Guyomar, judges,
and Sophie Piquet, Acting Deputy Section Registrar,

Having regard to:

the application (no. 13958/16) against the Hellenic Republic lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms ("the Convention") on 11 March 2016 by three Afghan nationals, whose details are listed in the appended table, ("the applicants") who were represented by Ms E.-L. Koutra, a lawyer practising in Athens;

the decision to give notice of the complaints concerning Article 3 alone and in conjunction with Article 13 to the Greek Government ("the Government"), represented by their Agent's delegates, Mr K. Georgiadis, Senior Adviser and Ms I. Kotsoni, legal representative at the State Legal Council, and the Greek Agent, Mrs Niki Marioli, and to declare inadmissible the remainder of the application;

the decision not to have the applicants' names disclosed;

the parties' observations;

Having deliberated in private on 14 December 2023,

Delivers the following judgment, which was adopted on that date:

SUBJECT MATTER OF THE CASE

1.  The applicants are an Afghani father and his two minor children. On 25 February 2016 they were registered at Fylakio Reception and Identification Centre (RIC), Evros.

2.  The first applicant was suffering from a cyst on his hip and underwent surgery for this.

3.  On 2 March 2016 the applicants left the RIC and went to Idomeni camp.

4.  On 11 March 2016 the applicants lodged a request for an interim measure with the Court, which was refused on 1 April 2016.

5.  In December 2016 they left Greece, returning in 2018.

6.  They complain under Article 3 regarding their living conditions in Idomeni camp and under Article 3 taken in conjunction with Article 13 regarding shortcomings of the asylum procedure.

7.  On 12 October 2018 the applicants applied for international protection and on 22 April 2020 they were recognised as refugees.

1. The applicants' account
   1. As regards living conditions in Idomeni camp during their stay between March and May 2016

8.  The applicants submitted that they had fled Afghanistan on grounds of fear for their safety. Upon entering Greece, they had been detained in Fylakio Evros.

9.  After their release on 2 March 2016, the applicants had reached Idomeni and aimed to travel to northern Europe, considering that Greece and other countries on the Balkan route were not safe for them.

10.  In Idomeni they had lived in a tent without adequate protection against weather conditions. They complained of overpopulation, noting that more than 10,000 persons had been accommodated, exceeding the camp's capacity. They further complained of inadequate hygiene and sanitation facilities, the risk of infection and inadequate nutrition.

11.  The applicants had suffered from bronchitis, fever and lung problems. The first applicant's cyst had become infected and bled and he had not been able to obtain medical assistance. In addition, the children were hungry.

12.  The applicants submitted that the authorities had been aware of their vulnerability, notably in respect of the first applicant as a person with medical issues and in respect of the children on account of their age (4 and 7 years old), and that the living conditions in Idomeni taken together with their vulnerable status had not been compatible with Article 3 of the Convention.

2. As regards access to the asylum procedure

13.  The applicants submitted that they had not been provided with information regarding access to asylum procedures during their registration by the police authorities.

14.  They noted that the Greek Asylum Service had designated the Skype platform as the only way for asylum-seekers to express their wish to apply for asylum and set a date for registration at the Regional Asylum Office (RAO). The applicants intensified their efforts in this respect, although they could not access internet as they did not own any device from which to call the Skype account.

15.  The applicants had attempted to request asylum, but the Asylum Service had been overloaded and they could not reach the Skype numbers provided. The only legal option, namely that asylum-seekers apply in person at the asylum offices, was no longer provided.

16.  Even if they had managed to use Skype to express their wish to apply for asylum, they would not have been considered as holding the status of asylum-seekers.

17.  The applicants further noted that on 3 March 2016 an administrative expulsion order had been issued against them, and its enforcement was suspended for one month in respect of the first applicant and for six months in respect of the children. They claimed that the suspension could be lifted prior to that deadline, and they could be subjected to direct or indirect return to their country of origin. At the time they seized the Court, the suspension of expulsion for the first applicant was to expire in two weeks, without him having been afforded the opportunity to lodge an asylum request, and thus they were all about to be exposed to refoulement.

3. Subsequent developments following the applicants' stay in Idomeni camp

18.  The applicants submitted that they had attempted to cross the borders illegally, but had been returned to Greece.

19.  In May 2016 they had been informed by an official that they could be transferred to a camp. They moved to Diavata camp where they lived in a tent, without electricity and with inadequate nutrition. They received a pre-registration asylum-seeker's card, but had not kept a copy.

20.  The first applicant had been referred to hospital several times but to no avail, as there was no interpreter available and he could not communicate with the doctor. The children could not enrol at school and fell sick, but there was no pediatrician available.

21.  They pointed out that during their stay at Diavata camp between May and December 2016 the authorities had been aware of their presence. However, they could not submit an asylum request although their interest had been recorded.

22.  They stressed that after the evacuation of Idomeni camp no one could make a valid application for asylum as a pre-registration practice was announced, to be put in place by the end of July 2016. They noted that pre-registration did not ensure access to the asylum procedure. This fact, taken together with their living conditions in Diavata camp, notably not being provided with special safeguards for vulnerable persons, exposed them to hardship exceeding the threshold of Article 3, including a risk of refoulement.

23.  In December 2016, due to the harsh conditions, they left Diavata camp and moved on to other countries.

24.  In September 2018 they decided to return to Greece and on an unknown date they reached Athens, where they remained homeless. They alleged that they were provided with adequate housing in December 2019.

25.  Lastly, they submitted that the first applicant had not managed to undergo the operation indicated in 2016 and still indicated at the time of submission of their observations. They added that the youngest child of the family, born abroad in the meantime, had been suffering from medical issues. Due to the absence of interpretation, they had not managed to address their medical issues.

2. The Government's account
   1. As regards living conditions in Idomeni camp

26.  The Government noted that the first applicant had been examined by the medical team at the RIC and transferred to hospital for abscess drainage of his cyst.

27.  They stressed that, at the time, Greece had been confronted with an extraordinary situation of humanitarian need because of the unprecedented migrant and refugee flow and that the authorities had made efforts to deal with the emergency. The situation was aggravated by the de facto closing of the Western Balkan route as of February 2016, preventing third country nationals from reaching Central and Northern Europe. As of the end of August 2015 thousands of refugees and migrants had gathered at Idomeni.

28.  An unofficial camp was constructed on 25 September 2015 under the responsibility and at the expense of NGOs and arranged with the support of regional municipalities. It included 5 tents with an accommodation capacity of 1000 persons, an area suitable for accommodating minors, 40 toilets, 20 showers and drinking water facilities. On 27 November 2015 a second camp came into operation on the initiative of the International Organization for Migration (IOM) and the United Nations High Commissioner for Refugees (UNHCR). It included 3 tents with an accommodation capacity of 750 persons, 4 containers with capacity for 60 persons, 20 tents with capacity for 200 persons, 30 toilets, a cooking facility and portable heating devices.

29.  Healthcare services had been provided by the medical staff of local hospitals installed in the area and by NGO units. There was also a Health Centre at a short distance, where persons in need of further treatment would be transferred by ambulance.

30.  The food supply at Idomeni was ensured by NGOs and volunteers and residents could also obtain food from local shops.

31.  Police forces with interpretation assistance informed the residents about the prohibition on crossing borders and the possibility of their transfer to organised accommodation facilities. Following a police operation between 24 and 26 May 2016, the area was evacuated and the residents of Idomeni were transferred to organised state accommodation facilities where they were provided with reception conditions.

32.  The camps in Idomeni never constituted official accommodation facilities designated by the authorities for accommodation.

33.  The applicants had not been under detention, and they had moved on to Idomeni on their own initiative. Owing to the informal character of the Idomeni camp, the conditions prevailing there during the applicants' stay, and its length, cannot be confirmed by the authorities, since no record of the applicants' presence had been made.

34.  They pointed out that, in any event, no responsibility should be imputed to the authorities for the living conditions in the aforementioned camp.

2. As regards access to the asylum procedure

35.  In June and July 2016 the Asylum Service implemented a pre-registration operation at accommodation facilities for those who wished to apply for international protection. Pre-registered applicants were provided with an asylum-seeker's card allowing them to reside lawfully in the country and providing them with access to health and education services. In addition, the Asylum Service had issued translated information material about the asylum procedure.

36.  They further stressed that any vulnerability was assessed and taken into consideration.

37.  The Government contested the applicants' allegations about the lack of access to the asylum procedure during the period they spent at Idomeni exposing them to the risk of returning to their country where they would face inhuman and degrading treatment. They pointed out that there is no indication that the authorities refused to register the applicants' asylum requests.

38.  They submitted that, during the reception proceedings at the RIC, the applicants were informed about the possibility of applying for international protection before the competent Regional Asylum Office (RAO), but they did not express a wish to apply. Their application was first submitted on 12 October 2018, whereas the applicants had not submitted any evidence indicating that they had attempted to apply for asylum earlier but that it had not been possible.

39.  They stated that access to asylum is enacted with a personal appearance before an RAO while, in parallel with the possibility to apply in person, the interested parties had been provided with the possibility of making an appointment through the Skype online platform for the registration of their asylum applications. The operation of such a platform did not preclude the applicants' attendance at the competent RAO.

THE COURT'S ASSESSMENT

1. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION
   1. Admissibility
      1. The Government's preliminary objection regarding lack of victim status

40.  The Government argued that the applicants lacked victim status as they had not produced any evidence regarding their stay at the informal camp of Idomeni and its length and invited the Court to reject the application as inadmissible.

41.  The applicants submitted that, although the camp was informal, the authorities were or ought to have been aware of their presence there since they had stated their location in the interim measure proceedings. They contested the Government's statement regarding the absence of their registration in the authorities' records, noting that the State should be held liable for not duly keeping records.

42.  The Court observes that the applicants' presence at Idomeni camp was indicated during the interim measure proceedings and considers that the absence of a record of the applicants (see paragraph 33) does not suffice to question their presence at Idomeni. Therefore, the Government's objection must be dismissed.

2. As regards the applicants' complaints during their stay at Diavata camp and onwards

43.  The applicants complained of a lack of access to asylum procedures and of their living conditions during their stay at Diavata camp (see paragraphs 18 - 19 and 21- 22 above) as well as of their living conditions following their return to Greece in 2018 and until December 2019 (see paragraph 24 above).

44.  The Court observes that the above complaints were first introduced in the applicants' observations on 24 July 2020 and that the alleged incidents had taken place between May and December 2016 and until December 2019. Therefore, the complaints were lodged outside the six-month time-limit, as provided at the material time in Article 35 of the Convention and must be rejected as inadmissible in accordance with Article 35 §§ 3 (a) and 4 of the Convention.

45.  As regards the submissions of the first applicant, that he had not been provided with the operation previously indicated, the Court notes that the complaint is unsubstantiated and, therefore, it is proposed to reject it as manifestly ill-founded in accordance with Article 35 §§ 3 (a) and 4 of the Convention.

2. Merits

46.  The applicants complained about their living conditions in Idomeni camp during their stay between March and May 2016. They stated that their particular needs, on the one hand of the first applicant as a person suffering from medical issues, and on the other hand of the children, had not been accommodated at the reception setting in Idomeni camp.

47.  The Government refuted any liability and contested the allegations regarding living conditions in Idomeni. They further noted that, in any event, the situation had not attained the level of severity for it to fall within the scope of Article 3 of the Convention.

48.  The Court has already had occasion to note that the States which form the external borders of the European Union are experiencing considerable difficulties in coping with the increasing influx of migrants and asylum-seekers. It does not underestimate the burden and pressure this situation places on the States concerned (see M.S.S. v. Belgium and Greece [GC], no. 30696/09, § 223, ECHR 2011).

49.  However, having regard to the absolute character of the rights secured by Article 3, that cannot absolve a State of its obligations under that provision. (see Khlaifia and Others v. Italy, [GC], no. 16483/12, §§ 158 and 184, 15 December 2016).

50.  Furthermore, according to the Court's well-established case-law, ill-treatment must attain a minimum level of severity if it is to fall within the scope of Article 3 (see Khlaifia and Others v. Italy, [GC], § 159, cited above).

51.  The general principles concerning the living conditions of asylum-seekers were summarised in M.S.S. v. Belgium and Greece (cited above, §§ 251-53), Khlaifia and Others v. Italy (cited above, §§ 158-61) and R.R. and Others v. Hungary, (no. 36037/17, § 64, 2 March 2021) and there is no need to repeat them here.

52.  The living conditions in Idomeni camp, for the period in question, were documented in Sh.D. and Others v. Greece, Austria, Croatia, Hungary, North Macedonia, Serbia and Slovenia, no. 14165/16, §§ 32-34, 13 June 2019) and further assessed in relation to the applicants' vulnerability in the above judgment (see Sh.D. and Others v. Greece, Austria, Croatia, Hungary, North Macedonia, Serbia and Slovenia, §§ 52-62 cited above).

53.  The Court further refers to its case-law regarding the reception of unaccompanied or accompanied minors, noting that it is important to bear in mind that the child's extreme vulnerability is the decisive factor and takes precedence over considerations relating to the status of illegal immigrant (see N.T.P. and others v. France, no. 68862/13, § 44, 24 May 2018, Popov v. France, nos. 39472/07 and 39474/07, § 91, 19 January 2012, Muskhadzhiyeva and Others v. Belgium, no. 41442/07, §§ 55 and 63, 19 January 2010).

54.  The Court takes note of the applicants' vulnerability, on the one hand in respect of the first applicant as a person suffering from medical issues (see paragraphs 2, 11 and 26 above) and in respect of the children on account of their age (4 and 7 years old, see paragraphs 1 and 12 above). It further takes into consideration the findings in the reports of several organisations regarding the deplorable conditions prevailing at Idomeni camp, cited in Sh.D. and Others v. Greece, Austria, Croatia, Hungary, North Macedonia, Serbia and Slovenia, §§ 30-34 cited above) and coinciding with the period when the applicants in the present case resided there.

55.  In particular the Court notes that, according to the report published on 26 April 2016 after the visit of the Special Representative of the General Secretary of the Council of Europe on Migration and Refugees at Idomeni site in March 2016, concerns were expressed regarding the situation of more than 13,000 persons gathered in the area (see Sh.D. and Others v. Greece, Austria, Croatia, Hungary, North Macedonia, Serbia and Slovenia, § 31, cited above).

56.  In these circumstances, and having regard to the parties' submissions and all the material in its possession, the Court finds that the situation complained of in Idomeni camp subjected the applicants to treatment which exceeded the threshold of severity required to engage Article 3 of the Convention.

57.  There has accordingly been a violation of Article 3 of the Convention.

2. ALLEGED VIOLATION OF ARTICLE 3 in Conjunction with ARTICLE 13 OF THE CONVENTION

58.  The applicants complained of the risk they would face of being returned directly or indirectly to Afghanistan without an examination on the merits of their allegations under Article 3 of the Convention, as they did not have access to the asylum procedure. In particular, they submitted that the only way to apply for asylum was by making an appointment through a Skype platform which was not functional.

59.  The Government referred to the mode of submission of applications for international protection (see paragraph 39 above).

60.  The Court observes that no evidence is adduced regarding the fact that registration through Skype was the only designated way to apply for asylum or that the authorities refused to register their asylum requests (see paragraph 37 above).

61.  Having regard to the parties' submissions and all the material in its possession, the Court finds that the situation complained of does not disclose a violation of Article 3 in conjunction with Article 13 of the Convention. Therefore, this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.

APPLICATION OF ARTICLE 41 OF THE CONVENTION

62.  Each of the applicants claimed 12,000 euros (EUR) in respect of non-pecuniary damage for a violation of Article 3 regarding the living conditions in Idomeni and the first applicant additionally claimed EUR 10,000 in respect of non-pecuniary damage for a violation of Article 3 in view of his state of health. Each of the applicants further claimed EUR 5,000 in respect of non-pecuniary damage for a violation of Article 3 taken in conjunction with Article 13 of the Convention.

63.  The applicants requested a joint award of EUR 5,000 plus VAT in respect of costs and expenses incurred before the Court, mentioning that this sum forms part of the fee they had agreed to pay to their representative based on a quota litis agreement. They also requested that the sums for costs and expenses, plus any tax applicable, be transferred directly to the representative's bank account.

64.  The Government consider the amounts claimed for non-pecuniary damage excessive and unjustified and that the potential finding of a violation would constitute sufficient just satisfaction. They further consider excessive the amounts claimed for costs and expenses, and that if the Court considers awarding the applicants an amount in this respect, this should not exceed the sum of EUR 500.

65.  The Court considers reasonable to award each of the three applicants EUR 4,000 in respect of non-pecuniary damage plus any tax that may be chargeable to them.

66.  According to the Court's case-law criteria, and since no proof of cost and expenses has been submitted, the Court does not award any sum in this regard.

FOR THESE REASONS, THE COURT, UNANIMOUSLY,

1. Declares the application admissible regarding the applicants' living conditions in Idomeni camp and the remainder of the application inadmissible;
2. Holds that there has been a violation of Article 3 of the Convention regarding the applicants' living conditions in Idomeni camp;
3. Holds

(a)  that the respondent State is to pay each of the applicants, within three months, EUR 4,000 (four 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 amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;

4. Dismisses the remainder of the applicants' claim for just satisfaction.

Done in English, and notified in writing on 18 January 2024, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

 Sophie Piquet Stéphanie Mourou-Vikström
 Acting Deputy Registrar President

APPENDIX

List of applicants: