Ministers’ Deputies

Information documents

CM/Inf/DH(2012)19       29 May 20121



M.S.S. against Belgium and Greece2

Assessment of the general measures presented in the action plans of Belgium and Greece

Memorandum prepared by the Department for the Execution of Judgments of the European Court of Human Rights



Table of contents

Introduction 3

I. Belgium: assessment of the action plan 3

II. Greece: assessment of the action plan 5

Summary of the proposed assessment 12

I. Concerning Belgium: 12

II. Concerning Greece: 12

Introduction

1. The present Memorandum was prepared by the Secretariat at the Ministers Deputies’ request (1120th DH meeting). It presents an assessment of the general measures taken and/or envisaged by the Belgian and Greek authorities respectively, pursuant to the M.S.S. against Belgium and Greece judgment3.

2. The memorandum examines successively the situation concerning first Belgium then Greece. In respect of each of the respondent states, a summary of the Court’s findings, the measures presented in the authorities’ action plan, followed by the assessment which the Deputies asked the Secretariat to prepare, is set out violation by violation.

3. A summary of the assessment is set out in the appendix.

I. Belgium: assessment of the action plan

4. On 20 July 20114 the Belgian authorities provided their action plan for the execution of the M.S.S. judgment. The action plan sets out the general measures already taken and their assessment by the authorities.

A. Response to the violations of Article 3 resulting from the applicant’s removal to Greece

1) Summary of the Court’s findings

5. The Court held that there had been two separate violations of Article 3 as a result of the applicant’s transfer from Belgium to Greece. This transfer had exposed the applicant to the deficiencies of the Greek asylum procedure and to detention and living conditions that amounted to degrading treatment.

6. With regard to the deficiencies of the asylum procedure, the Court pointed out in particular that the UN High Commissioner for Refugees (UNHCR) had informed the Belgian government of the situation in Greece while the examination of the applicant’s appeal was still pending. The Court considered that Belgium should not have simply applied the “Dublin” Regulation without considering the opportunity of derogating therefrom and should not have assumed that the applicant would be treated in conformity with the Convention, but should, on the contrary, have verified how Greece applied its legislation on asylum in practice.

7. With regard to the conditions of detention and living conditions in Greece, the Court pointed out that these problems were well known before the transfer of the applicant and were easily and freely ascertainable from a wide number of sources. Consequently it considered that the Belgian authorities had knowingly exposed him to conditions of detention and living conditions that amounted to degrading treatment.

2) Measures taken by Belgium

8. Following the M.S.S. judgment, Belgium stopped transferring asylum seekers for whom Greece would in principle be responsible in application of the criteria set out in the “Dublin” Regulation. Belgium deals with the applications of the persons concerned pursuant to the sovereignty clause of this Regulation5. With regard to asylum-seekers for whom Greece had been considered responsible prior to the M.S.S. judgment, when the Belgian authorities are sure that the foreign national concerned is present in Belgium they deal with the request pursuant to the sovereignty clause.

9. More generally, irrespective of which State is in principle responsible for examining the asylum request pursuant to the criteria set out in the Dublin Regulation, when the foreign national claims that the general situation in that State infringes Article 3 and that this has been proven (on the basis, in particular, of reports by international organisations), Belgium deals with the asylum request pursuant to the sovereignty clause. This situation has already arisen with regard to a State party to the Dublin Regulation other than Greece.

A specific question concerning the complaints that the applicant might have against the examination of his asylum request by a State Party other than Belgium has been included in the list of standard questions to be asked to asylum-seekers6. Staff responsible for obtaining asylum-seekers’ statements have been instructed to ask them specifically whether they have any such complaints.

3) Assessment by the Secretariat

10. It is recalled that in their decision adopted at the 1120th meeting (September 2011) (DH), the Ministers’ Deputies “welcomed the fact that Belgium has stopped transferring asylum seekers” to Greece.

11. With respect to measures which more generally concern the application of the sovereignty clause, they also seem pertinent and were adopted immediately. It should be noted that, in its judgment of 21 December 2011, the Court of Justice of the European Union provided clarifications on the application of the sovereignty clause of the Dublin Regulation. The precise way in which this clause is applied in the context of the European Union does not seem to fall within the scope, under Article 46 of the Convention, of the Committee of Ministers’ supervision of the execution of this aspect of the M.S.S. judgment by Belgium.

12. The Committee of Ministers might therefore wish to consider the possibility of closing its supervision of the general measures taken by Belgium to prevent similar violations of Article 3.

B. Response to the violation of Article 13

1) Summary of the Court’s findings

13. At the time of the facts the applicant only had at his disposal a remedy without suspensive effect before the Aliens’ Appeals Board (CCE) to set aside an expulsion order and a remedy for stay of execution under the extremely urgent procedure (also before the CCE). The Court found that neither of these remedies constituted an effective remedy whereby the applicant might obtain both the suspension of execution of the measure at issue (i.e. the suspension of execution of the expulsion measure) and a thorough and rigorous examination of the complaints arising under Article 3 (violation of Article 13 in conjunction with Article 3).

2) Measures taken by Belgium

14. The Belgian authorities’ action plan gives an account of the developments concerning the remedy under the extremely urgent procedure. It is indicated that not only this type of remedy has the automatic suspensive effect but also that the scope of the CCE’s monitoring of complaints under Article 3 has increased. The CCE no longer restricts its assessment to the existence of a “risk of serious, hardly reparable damage”. Following the M.S.S. judgment, the CCE examines complaints of violations of the Convention lodged by foreign nationals. It even considers at its own initiative the issue of a possible violation of Article 3 as a public policy ground for annulment. The CCE considers the risk of violation of Article 3 sufficiently established if the foreign national demonstrates, by his/her story and the information available on the country of destination, that there are substantial grounds for believing that he or she belongs to a group systematically exposed to treatment contrary to Article 3.

3) Assessment by the Secretariat

15. In reaching the finding that the remedy to the CCE for a stay of execution under the extremely urgent procedure was not effective, the Court took account of the fact that this body was responsible for verifying whether the persons concerned had provided “concrete proof of the irreparable nature of the damage that might result from the alleged potential violation of Article 3, thereby increasing the burden of proof to such an extent as to hinder the examination on the merits of the alleged risk of a violation” (§ 389 of the judgment). The development in the relevant case-law described above seems, at first glance, to address the concerns expressed by the Court. In this respect, the decisions taken by the general assembly of the CCE on 17 February 2011 (see also the CCE’s press release of the same date)7 and a decision taken by the CCE in January 2012 in which it holds that the removal of an asylum-seeker to a country (other than Greece) would amount to a violation of Article 38 are worth noting.

16. However, the Court also noted that the decisions taken by the various divisions of the CCE sometimes differed9. It would therefore be useful if the Committee of Ministers obtained confirmation from the Belgian authorities that the new case-law is actually applied in a uniform manner by all divisions of the CCE. This is all the more relevant in view of the decision taken by the Court on 13 March 201210 striking off its case list an application raising precisely the question of whether a CCE decision rejecting an appeal, after the above-described change in Belgian case-law, was in conformity with Article 1311. Indeed, the decision to strike the case off the list was based on an agreement between the parties and endorsed by the Court, under which the Belgian authorities agreed to thoroughly reconsider on the merits the applicant’s request for asylum and subsidiary protection. As the Court did not rule on the substantive issue, and given the importance of preventing a flow of similar applications to the Court, it seems legitimate for the Committee of Ministers to continue its examination of this issue.

* * *

II. Greece: assessment of the action plan

17. On 20 July 2011 the Greek authorities provided their action plan for the execution of the M.S.S. judgment12. This action plan presents the general measures already adopted and/or envisaged and their assessment by the authorities. On that same date, the authorities also submitted to the Committee the National Action Plan on Migration Management, presented to the European Commission on 15/09/2010, and the main legislative texts concerning asylum, i.e. Law No. 3907/2011 “on the establishment of an Asylum Service and a First Reception Service” ("Law No. 3907/2011"). In conformity with the Committee’s request that it be kept regularly informed, additional information was transmitted to it in January, March and May 2012. This information included some of the responses of the Greek authorities to the CPT report (CPT/Inf(2012)1 and (2012)2). All of this information has been taken into account in the present memorandum.

A. Response to the violations of Article 3 resulting from the conditions of detention

i) Conditions of detention of asylum seekers

1) Summary of the Court’s findings

18. In the M.S.S. judgment, the Court concluded that the applicant had suffered degrading treatment due to the conditions under which he was detained at the holding centre next to Athens International Airport in 2009 (overcrowding, lack of bed/mattress, insufficient ventilation, no regular access to toilets or sanitary facilities, no outdoor exercise). Similar findings concerning the conditions of detention in the premises of the border police at Kordelio (Thessaloniki region) and at the Samos detention centre had been made in previous judgments (Tabesh and A.A). In its R.U. judgment of 7 June 2011, the Court, reiterating the conclusions of the S.D. judgment, found that there had been a violation of Article 3 with regard to the conditions of detention in the Soufli (Evros region) and Petrou Ralli (Athens) detention centres. Finally, in its Efremidze judgment of 21 June 2011, it reached a similar conclusion with regard to the premises of the border police at Thermi (Thessaloniki region).

19. The execution of this set of judgments concerning the conditions of detention of irregular migrants and asylum-seekers, including unaccompanied minors (an aspect which was put forward in the Rahimi judgment), is examined by the Committee of Ministers in the context of the M.S.S. judgment. On the other hand, the measures taken in respect of the violations of Article 5 found in these cases are examined separately (S.D. group).

2) Measures taken by Greece

20. According to the Greek authorities, the main means to address the shortcomings in the field of conditions of detention is the establishment of the Initial Reception Service within the Ministry of Citizen Protection. This service operates as a Directorate. The First Reception Service shall be composed of the Central Service, as well as of the First Reception Centres (FRC) and temporary or mobile First Reception Units (in accordance with Law 3907/2011 and the joint ministerial decision of 26/01/2012). The FRC would serve as places for screening, registration and identification of third-country nationals. Following a stay in these facilities, third country nationals will be directed to procedures according to their status and international protection needs. It is expected that the procedure would be completed within 15 days (possible extension of 10 additional days). Those belonging to vulnerable groups would be dealt with separately.

21. The creation of 30 FRC throughout the country was planned during 2011. Contracts were signed for the construction of new police border departments/first reception centres in Alexandroupolis, Evros, Orestiada, Didimoteicho. According to the information provided by the Greek authorities in May 2012, the Initial Reception Service was inaugurated and the Director has been appointed. The process for the recruitment of staff is currently ongoing. According to information provided to the European Commission, the establishment of the first screening centre in Evros is expected to be concluded within the deadline for implementation in September 2012.

22. The Greek authorities have also provided information regarding the improvement of detention conditions in detention centres in border areas (Evros Region) the shortcomings of which were highlighted by the Court and reiterated by the CPT13. Technical and other improvements are being performed in different, existing detention centres in the border areas of Evros, Alexandroupoli, Rodopi and Orestiada (in particular in the detention centres of Soufli, Kyprinos-Evros Fylakio, Poros, Tychero, Ferres, Metaxades, Nea Vissa). These include painting, restoration of hygiene areas, placement of beds, as well as other maintenance and repairing works. Furthermore, funds were approved for technical improvements in other existing detention centres (Venna-Rodopi, Chios and Samos islands, Attika region).

3) Assessment by the Secretariat

23. The Committee of Ministers could note that the inauguration of the Initial Reception Service and the appointment of its Director are positive developments. It could further welcome the efforts made aiming at establishing the FRC, that appear to be able to address the shortcomings in the field of conditions of detention. In that respect, it could invite the Greek authorities to intensify their efforts with a view to an effective functioning of those centres. The simplification of the legal framework and focus on staffing seem particularly relevant.

24. In addition, it is recalled that in the M.S.S. judgment, the Court noted “that according to various reports by international bodies and non-governmental organizations […] the systematic placement of asylum seekers in detention without informing them of the reasons for their detention is a widespread practice of the Greek authorities14. The Committee of Ministers could invite the Greek authorities to specify how they are currently addressing this issue also taking into account that, as noted by the Greek Ombudsman15, a mechanism which would allow the identification of those in need of international protection among those entering the country is lacking.

25. The Committee of Ministers could also welcome the efforts aimed at improving detention conditions in the Evros region16. In view of the constant influx of irregular migrants, especially through the border areas of Greece, the Committee of Ministers might wish to urge the Greek authorities to intensify those efforts and to pay particular attention in that respect to the recommendations made by the CPT as well as by national actors involved in the field (Ombudsman and Greek National Commission for Human Rights) and EU bodies. It could be noted that the EU Commission stressed the need for the adoption of an emergency action plan for Evros that would include a mapping of needs and available resources. It appears that the need to fully use the possibilities offered under EU funds and to take the necessary administrative and/or legal steps is of paramount importance.

26. It is also recalled that in the M.S.S. judgment, the Court found a violation of Article 3 on account of conditions of detention in the holding centre next to the Athens International Airport. As it was only indicated that a special area with a capacity of accommodating 10 persons was designated within the airport, the Committee of Ministers could invite the Greek authorities to provide updated additional information. Updated information is also needed regarding the detention conditions in the Petrou Ralli facility (Athens region) in light of the Court’s findings in the R.U. judgment. 17

ii) Conditions of detention of unaccompanied minors

1) Summary of the Court’s findings

27. In the judgment in the case of Rahimi, examined by the Committee of Ministers jointly with M.S.S., the Court found that the applicant was subject to a degrading treatment due to the authorities' failure to take into account the applicant's extremely vulnerable situation because of his age (15 years old at the time); his personal situation (unaccompanied minor seeking asylum) and the conditions of detention pending expulsion in the Pagani Centre (Lesbos island) in 2007, especially with regard to serious overpopulation, poor sanitary conditions (insufficient number of toilets, showers and mattresses, insufficient ventilation) and lack of any activities and contact with the outside world.

2) Measures taken by Greece

28. In October 2009 the Pagani detention centre was closed (§ 48 of the judgment). From the information provided by the Greek authorities, it appears that, under the new legislative framework, during a transitional period, detention of minors who have requested asylum should be avoided. When the transitional period is over, families with minors as well as unaccompanied minors will be placed separately within the FRC and minors will be offered recreation/leisure activities. Access to education will also be available. Similar regulations are provided for minors (accompanied or not) who are currently living irregularly in the country and have not requested asylum.

29. The prosecutor of the region of Rodopi (Evros area) sent a letter to all the prosecutors of this border region indicating that in his/her capacity of guardian of minors, the prosecutor shall ensure that unaccompanied minors be transferred to special reception centres. In addition, the prosecutor of Rodopi instructed that minors should not be subject to criminal charges on the sole basis of their irregular entry in the country and that parents who accompany minors also be set free.

3) Assessment by the Secretariat

30. The Committee of Ministers could note that under the new legislative framework, detention of unaccompanied minors appears to be exceptional. However, it is not clear from the information provided how this measure is being implemented. The Committee could ask the Greek authorities to provide concrete information as to the current situation of unaccompanied minors vis a vis detention and to confirm whether detention is indeed exceptional.

31. In addition, it is recalled that the Court paid particular attention to the failings of the Greek system regarding unaccompanied minors entering the country irregularly and requesting asylum. The Court had noted that unaccompanied minors had been registered by the authorities in Lesbos as accompanied and that they were arbitrarily assigned to adults described as their “brother” or “cousin”; and that no guardian was appointed for them (Rahimi, §§ 68-69). In this connection, the Greek authorities could be invited to update the Committee of Ministers on the current practices relating to identification/detention of unaccompanied minors and the assignment of guardians to them. In that respect, it would be useful to provide information regarding the follow up given to the abovementioned instructions of the Prosecutor of the region of Rodopi as well as whether this practice was followed in other regions (see above § 29).

iii) Violation of Article 13 resulting from the lack of an effective remedy to complain about the conditions of detention

1) Summary of the Court’s findings

32. In its judgment in the case of R.U., the Court examined whether there had been remedies available to the applicant in Greece which he should have used in order to complain about his conditions of detention before lodging his complaint with the Court. It observed that this was not the case. The only remedy available to the applicant was to apply to the hierarchical 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 foreigners18.

2) Measures taken by Greece

33. The Greek authorities note in that respect the existence of two relevant provisions. Article 76 of Law No. 3386/2005 as amended provides that in case a complaint is lodged by a foreigner, the competent judge shall decide on the legality of the detention or its prolongation. In addition, article 30 of Law No. 3907/2011 provides –inter alia – that when deciding on a detention or its prolongation with a view to expulsion, the competent authorities19 shall take into consideration the availability of proper detention facilities, as well as the ability to guarantee decent living conditions to the detainees. The conformity of conditions of detention shall be examined ex officio, each trimester, by the authority ordering the detention. According to the Greek authorities the two abovementioned provisions read in conjunction constitute an effective remedy permitting complaints against conditions of detention as well as the legality of the detention. The authorities indicated that they will keep the Committee of Ministers updated on the developments of the case law in that respect.

3) Assessment by the Secretariat

34. The amendments introduced in national legislation are welcome, especially since now an explicit reference to the judge's competence to decide on the legality of the detention has been added. The measures presented seem to address to some extent the issues related to the violation of Article 5§4 of the ECHR that are examined separately by the Committee of Ministers under the group S.D. However, it is unclear to what extent there is indeed a remedy that allows individuals to complain not only about the legality of detention but also about the conditions of detention per se. The Committee of Ministers might wish to invite the Greek authorities to clarify how the new legislative framework and its implementation permit the conclusion that an effective remedy to challenge conditions of detention is now in place.

B. Response to the violations of Article 3 resulting from the living conditions of asylum seekers (including unaccompanied minors) following their release

1) Summary of the Court’s findings

35. In the M.S.S. judgment the Court held that the Greek authorities have not had due regard to the applicant’s vulnerability as an asylum seeker and must be held responsible, because of their inaction, for the situation in which he has found himself for several months, living in the street, with no resources or access to sanitary facilities, and without any means of providing for his essential needs. Such living conditions, combined with the prolonged uncertainty in which he remained and the total lack of any prospects of his situation improving, attained the level of severity required to fall within the scope of Article 3 of the Convention (§ 263).

36. In the Rahimi case, examined by the Committee of Ministers jointly with M.S.S., the Court found that the applicant (unaccompanied minor at the time) was subject to a degrading treatment on account of the authorities' failure to take adequate measures to provide him with care and protection for the period following his release (lack of accommodation, lack of care regarding protection from possible violence or exploitation). The Court noted that owing to the authorities’ indifference, the applicant, left to fend for himself, must have experienced profound anxiety and concern, and particularly between the time he was released and his being taken in by the NGO Arsis.

2) Measures taken by Greece

37. The Greek authorities indicated that the main means to address the shortcomings in the areas identified by the Court regarding irregular migrants and asylum seekers will be their short term stay at the FRC. Care and medical examination will be provided to them and their basic material needs shall be met. Those requesting asylum shall be referred to Regional Asylum Offices to introduce their applications. Pending the relevant decision, the asylum seeker shall be referred to appropriate accommodation structures. In addition, the asylum seekers will be provided with a special identity card.

38. Accommodation centres for vulnerable groups (in particular unaccompanied minors) function at different areas of the country (e.g. Crete for 25 minors, Volos – 2 centres, both for minors- total capacity of 54, Lesbos for 96 minors, Thessaloniki for 30 minors- , Athens – 2 centres, one for minors- total capacity of 230, Lavrion for 320 people). It is foreseen that unaccompanied minors shall be referred to competent organisations that will offer medical and social assistance.

3) Assessment by the Secretariat

39. It should be noted that in its conclusion in the M.S.S. case regarding the violation of Article 3 on account of living conditions of the applicant, the Court stressed “that the situation the applicant complains of has lasted since his transfer to Greece in June 2009. It is linked to his status as an asylum seeker and to the fact that his asylum application has not yet been examined by the Greek authorities. In other words, the Court is of the opinion that, had they examined the applicant’s asylum request promptly, the Greek authorities could have substantially alleviated his suffering.20 In light of the Court’s reasoning it appears that the effective functioning of the asylum procedure (see below § 42 onwards) could have repercussions on the prevention of the violation of Article 3 on account of living conditions.

40. The information regarding the possibilities of the FRC to address the shortcomings regarding living conditions as identified by the Court is welcome. However, as the FRC have not yet begun functioning and the issue of current living conditions of irregular migrants/asylum seekers is not elaborated in detail, the Committee of Ministers could invite the authorities to clarify the concrete steps taken and the measures envisaged to prevent similar violations. Regarding the special identity card for asylum seekers, it is recalled that the card (pink card) allowing them to work and to have access to medical care was criticised by the Court for having no practical use (§ 261 of the M.S.S. judgment). Thus the authorities could be invited to specify the effectiveness of the new special identity card given after departure from the screening centres.

41. Regarding the situation of unaccompanied minors, it is recalled that the Court noted in the Rahimi case that the applicant’s accommodation and in general his care was solely provided by NGOs. In addition and with the reference to the Greek Ombudsman’s findings, the Court noted the lack of any policy aimed at protecting unaccompanied minors after their release as no efforts were undertaken to protect them from possible violence and exploitation (§ 91-92). In view of the increased rate of irregular migrants/asylum seekers entering Greece in 2011 (20.002 persons in the first semester of 2011) and the limited –in absolute numbers- accommodation possibilities referred to in the Greek action plan, the Committee of Ministers could invite the Greek authorities to provide information on the measures taken in order to address the concerns put forward by the Court.

C. Response to the violation of Article 13 in conjunction with Article 3 resulting from shortcomings in the examination of asylum requests

1) Summary of the Court’s findings

42. In the M.S.S. judgment, the Court identified shortcomings in the Greek authorities' examination of the applicant's asylum request and of the risk he faced of being returned directly or indirectly to his country of origin without any serious examination of the merits of his asylum application and without having access to an effective remedy. In particular, the Court noted first the shortcomings in access to the asylum procedure and in the examination of applications for asylum (insufficient information for asylum seekers about the procedures to be followed, difficult access to the Aliens Department of Attica (Athens, Petrou Ralli), no reliable system of communication between the authorities and the asylum seekers, shortage of interpreters and lack of training of the staff responsible for conducting the individual interviews, lack of legal aid effectively depriving the asylum seekers of legal counsel, excessively lengthy delays in receiving a decision).

43. The Court was also concerned about the findings of different surveys carried out by UNHCR, showing certain deficiencies in the asylum procedure (almost all first-instance decisions are negative and drafted in a stereotyped manner, without any details of the reasons for the decision being given, the rate of asylum or subsidiary protection granted by the Greek authorities is extremely low, the watchdog role played by the refugee advisory committees at second instance had been removed, the UNHCR no longer played a part in the asylum procedure). Lastly, the Court noted that forced returns by Greece to high-risk countries have regularly been denounced (by the third party interveners and by the reports consulted by the Court; § 301-320; see in particular § 314).

2) Measures taken by Greece

a) Asylum procedures under the new legislative framework

44. The National Action Plan provides for the establishment of a New Asylum Service (Central Department – Regional Asylum Offices) competent for examining and ruling at first instance on all applications for international protection; it also provides for the setting-up of an Appeals’ Authority, whose task shall be to decide at second level on the appeals lodged against decisions rendered by the Asylum Service. It was initially envisaged that the two new services would become operational by the end of January 2012, however this deadline was prolonged on 2/02/2012 for further 6 months21. According to law No 3907/2011 specially trained civil servants shall be responsible for the decision on an asylum request at first instance; decision at second instance shall be taken by Appeals Authorities, consisting of 2 persons specialised in the field of refugee/international law and a person indicated by UNHCR.

45. A specific mechanism of notification of the decision on the application for international protection has been set up. Furthermore, interpreters are recruited for nearly all relevant procedures22. Applicants have the right to consult, at their own cost, lawyers/counsellors, free legal assistance is provided in accordance with national law23. The asylum procedure shall be completed within 6 months (normal procedure), while a fast track procedure of up to 3 months is also envisaged.

46. On 1 March 2012 the Asylum Service and the Appeals Authority were opened.

b) Asylum procedures during the transitional phase

47. Until the implementation of the above measures and in order to clear the backlog of pending applications, a transitional mechanism was put in place: examination of requests at first level is carried out by specially trained policemen and the decision is taken by the Secretary General of Ministry of Public order. The UNHCR has the right to participate in the procedure and the assistance of interpreters is provided. The examination at second level is being carried out by three member Appeal Committees (consisting of a civil servant, a lawyer with specialisation in refugee law/human rights and a representative from UNHCR). The number of pending cases has decreased (38.100 from the initially estimated around 50.000). In addition, the number of requests accepted has increased. The international recognition rate (approximately 1% in previous years) has reached the average of 12.35% in 2011.

c) Voluntary and forced returns

48. The new legislative framework provides that in case of rejection of an application for or renewal of residence permit and of revocation of a valid residence title, a return decision is issued by the competent police authority. A period of voluntary departure is foreseen and it is notified to the third-country national. Removal procedures are subjected to a monitoring system that operates under the Greek Ombudsman; the latter cooperates for this purpose with International Organisations and NGOs. An administrative and a judicial appeal may be lodged against return decisions. Protection against return is provided in certain cases (for categories of minors or elderly people). The competent authorities may grant leave to remain on humanitarian grounds.

49. In addition, the authorities note that one of the measures put into effect in order to address the continuous influx of irregular migrants and thus in particular prevent the deterioration of detention conditions is the programme for voluntary returns which is being enhanced. To this effect, funds have been allocated under the Memorandum of Understanding signed between Greece and the European Economic Area. An Agency was established for the management of European and Development Programs.

3) Assessment by the Secretariat

50. The Committee of Ministers could welcome the new developments in particular regarding the opening of the Asylum Department, the increased participation of the UNHCR in the procedures and the reestablishment of the appeal committees, as well as the progress made by the latter during the transitional phase. As it was noted during a meeting of the Justice and Home Affairs Council of the EU on 8/03/2012 “progress has been made in a number of areas including [..] an increase in the number of examined asylum cases and a decrease of the backlog of pending cases24. In that respect, it should be also noted that the European Asylum Support Office (EASO) has provided assistance to Greece and has deployed Asylum Support Teams to assist in building the Greek asylum and reception services.

51. According to concurring sources25, the effectiveness of the system introduced regarding asylum procedures, however, is raising certain concerns due to specific shortcomings: access remains very difficult for asylum seekers who are not detained, e.g. the Aliens Department of Attica continues its policy of registering claims only a few hours every Saturday, except for vulnerable groups. Access to the asylum procedure is also impaired in detention areas, especially in Evros; deficiencies are still identified regarding interpretation, something that is expected to worsen when the programs carried out with EU funding will come to an end. Furthermore, despite the improvement of the quality of the process at second instance, the work of the Appeal Committees appears to be delayed because of a series of organisational and technical problems. Those shortcomings may undermine the effectiveness of the new system aimed at providing humanitarian protection to those entitled to it. In addition, it should be borne in mind that the effectiveness of the asylum procedure is expected to have a positive impact on the situation regarding conditions of detention and living conditions (see above § 39). This appears all the more important bearing in mind the dire financial situation encountered by Greece and its consequences on the living conditions.

52. To this effect, the Committee of Ministers could invite the authorities to intensify their efforts aiming at restoring full access to the asylum procedure and to provide up-dated information on the strategy envisaged in that respect (especially with reference to the Aliens Department of Attica). The authorities might also be invited to update the Committee on the functioning of the asylum procedure under the new system which is expected to be operational as of July 2012. The information should also include developments on the recruitment of translators and up-dated statistical data on the rates regarding asylum requests (granted/rejected).

53. Regarding the specific issue of forced returns, the Committee of Minsters could invite the authorities to provide up-dated information on the implementation of the procedure in light of the ECHR’s requirements26. The measure of voluntary returns does not appear to fall within the scope of the execution of the M.S.S. group of cases.

Summary of the proposed assessment

I. Concerning Belgium:

The Committee of Ministers might wish to:

    · consider the possibility of closing its supervision of the general measures taken by Belgium to avoid violations of Article 3 similar to those found by the Court in the M.S.S. judgment.

    · ask the Belgian authorities to confirm that the CCE’s new case-law, presented in their action plan, with regard to remedies for a stay of execution under the extremely urgent procedure, is actually applied in a uniform manner by all divisions of the CCE.

II. Concerning Greece:

The Committee of Ministers may wish to:

    · welcome the inauguration of the Initial Reception Service as well as the efforts made towards the establishment of the First Reception Centres aimed at remedying the shortcomings in the field of conditions of detention;

    · invite the Greek authorities to intensify their efforts with a view to an effective functioning of those centres;

    · while welcoming the efforts aimed at improving the detention conditions in the Evros region, urge the Greek authorities to intensify those efforts and to pay particular attention in that respect to the recommendations made by the CPT, as well as by national actors involved in the field (Ombudsman and Greek National Commission for Human Rights) and EU bodies;

    · welcome the progress made under the new legislative framework on asylum in particular regarding the inauguration of the Asylum Department, the increased participation of the UNHCR in the procedures and the re-establishment of the appeal committees, as well as the progress made by the latter during the transitional phase;

    · invite the authorities to intensify their efforts aiming at restoring full access to the asylum procedure.

The Committee may further wish to invite the Greek authorities to provide additional information on/responses to the following issues:

      · how are the authorities currently addressing the question of the systematic placement of asylum seekers in detention noted by the Court in the M.S.S. judgment (§ 226);

      · updated information on the current conditions of detention in the holding centre next to the Athens International Airport and at Petrou Ralli Facility (in light of the Court’s findings in the M.S.S. and R.U. judgments);

      · the current situation of unaccompanied minors vis a vis detention;

      · information on current practices relating to identification/detention of unaccompanied minors and the assignment of guardians to them;

      · information on the follow up given to the instructions issued by the Prosecutor of the region of Rodopi concerning unaccompanied minors as well as whether this practice was followed in other regions;

      · clarification as to the way the new legislative framework and its implementation allow concluding that an effective remedy to challenge conditions of detention as such is now in place;

      · concrete steps taken and measures envisaged to address the living conditions of asylum seekers following their release as well as clarification concerning the effectiveness of the new special identity card;

      · measures taken in order to address the concerns put forward by the Court in respect of living conditions and protection of unaccompanied minors after their release;

      · updated information regarding the strategy envisaged in order to restore full access to the asylum procedure (especially with reference to the Aliens’ Department of Attica);

      · updated information on the functioning of the asylum procedure under the new system which is expected to start functioning as of July 2012 (including developments concerning the recruitment of translators and up-dated statistical data on the rates regarding asylum requests (granted/rejected);

      · updated information on the implementation of the procedure of forced returns in light of the ECHR requirements.

1 This document has been classified restricted at the date of issue. It was declassified at the 1144th meeting of the Ministers’ Deputies (June 2012) (DH) (see CM/Del/Dec(2012)1144 Decisions adopted at the meeting).

2 Application No. 30696/09, Grand Chamber, judgment of 21 January 2011.

3 With regard to individual measures, the Belgian authorities had confirmed that the applicant had lodged an application for asylum in Belgium. At their meeting in September 2011, the Deputies, having noted that the application was still pending, “invited the Belgian authorities to keep them informed of the outcome of this procedure (…)”.On 21 May 2012, the Belgian authorities confirmed that the applicant was granted refugee status in Belgium on 9 May 2012.

4 Within the time-limit set by the Committee of Ministers.

5 Article 3§2 of the “Dublin II” Regulation: “By way of derogation from paragraph 1, each Member State may examine an application for asylum lodged with it by a third-country national, even if such examination is not its responsibility under the criteria laid down in this Regulation. In such an event, that Member State shall become the Member State responsible within the meaning of this Regulation and shall assume the obligations associated with that responsibility. Where appropriate, it shall inform the Member State previously responsible, the Member State conducting a procedure for determining the Member State responsible or the Member State which has been requested to take charge of or take back the applicant.”

6 The question is worded as follows: “Do you have any reasons regarding the conditions of reception or treatment which justify your objection to being transferred to the State responsible for your asylum request, in accordance with Article 3(1),of the Dublin Regulation?”

7 http://www.rvv-cce.be/rvv/index.php/fr/nieuws/nieuws-rvv/115-nieuws

8 http://www.rvv-cce.be/rvv/index.php/fr/nieuws/nieuws-rvv/145-terugkeer-naar-malta-schendt-art-3-evrm

9 The judgments of which the Court is aware (…) confirm that the examination of the complaints under Article 3 carried out by certain divisions of the Aliens Appeals Board at the time of the applicant’s expulsion was not thorough (§ 389; emphasis added).

10 Decision of 13 March 2012.

11 Sebhi Alouch v. Belgium, Application No. 21437/11 (hyperlink), communicated to the Belgian Government on 08.08.2011 (The Court having applied Rule 39 of its Rules of Procedure, the application will be given priority - Rules 40-41 of the Rules of Procedure). Concerns the applicant’s removal to Cyprus in pursuance of the Dublin II Regulation. According to the Facts of the Case: “On 25 March 2011 the applicant, complaining of the risks he faced if he was removed to Syria or Cyprus and referring to the reports drawn up by Amnesty International and the Council of Europe Commissioner for Human Rights and to the M.S.S. v. Belgium and Greece [GC] judgment (No 30696/09, 21 January 2011), lodged an appeal with the Aliens Appeals Board (CCE) under the procedure for appeals in matters of extreme urgency for a stay of execution of the order to leave the territory, which was rejected in a decision taken that same day. After taking a close look at the requirements of the Convention and case-law in this field, the CCE noted that Cyprus was a member of the EU, had implemented the directives concerning asylum and reception, that the international reports on the situation in Cyprus submitted by the applicant had not been mentioned during the Dublin interview and that he had not demonstrated in concreto the risk he faced in Cyprus of being returned to his country of origin” (emphasis added).

12 Within the time-limit set by the Committee of Ministers.

13 CPT, Public Statement concerning Greece, 15 March 2011, CPT/Inf(2011)10.

14 Paragraph 226.

15 Annual report 2011 (in Greek only).

16 In that respect, it could be borne in mind that the situation in Evros was characterised as “a humanitarian crisis, see European Union Agency for Fundamental Rights, “Coping with a fundamental rights emergency. The situation of persons crossing the Greek land border in a irregular manner”, Thematic situation report, March 2011.

17 See also the CPT’s relevant recommendations.

18 See paragraphs 59-61. See also Rahimi, paragraphs 74-80.

19 It appears that the police authorities are competent to decide on the detention and its prolongation with a view to expulsion. The prolongation decision is reviewed by a judge.

20 § 262, emphasis added.

21 Article 32 paragraph 2 of Law No. 4038/2.2.2012.

22 27 interpreters have already been assigned, working in particular in the Attika and Evros regions. They are financed by European funds.

23 Law No. 3226/2004.

24 Press release of 8/03/2012.

25 Greek Ombudsman’s Annual Report 2011 (in Greek only); UNHCR, The situation of refugees in Greece, UNHCR observations and proposals, 16 June 2011. (http://www.unhcr.gr/fileadmin/Greece/WorldRefugeeDay2010/WRD2011/2011_PROTECTION_POSITIONS_EN.doc)

26 See M.S.S., paragraph 314.



 Top

 

  Related Documents
 
   Meetings