SECOND SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 53649/00 by James Afam EZIOBOU and Moudi Frances EBIGWEI against Greece

The European Court of Human Rights ( Second Section ) sitting on 13 January 2000 as a Chamber composed of

Mr M. Fischbach, President , Mr C.L. Rozakis, Mr G. Bonello, Mrs V. Strážnická, Mr P. Lorenzen, Mr A.B. Baka, Mr A. Kovler, judges ,

and Mr E. Fribergh , Section Registrar ;

Having regard to Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 26 December 1999 by James Afam Eziobou and Moudi Frances Ebigwei against Greece and registered on 4 January 2000 under file no. 53649/00;

Having regard to the report provided for in Rule 49 of the Rules of Court;

Having examined the case file,

Having deliberated;

Decides as follows:

THE FACTS

The applicants are Nigerian national s , born in 1969 and 1975 respectively and living in Athens . They are represented before the Court by Mr I. Ktistakis , a lawyer practising in Athens . They are detained in the Police Headquarters in Athens in view of their deportation to Nigeria .

The facts of the case, as submitted by the applicant s , may be summarised as follows.

The applicants were arrested in Thebes on 13 November 1999 for detention of drugs and sale of forged CD records. Mr Ebigwei declared that he had arrived in Greece three months ago to study Philosophy in the Athens University . Mr Ebiozou stated that he was a British national. However, the police discovered that they had used forged documents and illegally entered into the country. In his testimony to the police, Mr Ebigwei alleged, inter alia, that there was a risk for his life if deported to Nigeria, because he was a Christian and because of the conflict between Christians and Muslims there, which resulted in the death of two of his brothers and his sister four years ago.The applicants were brought before the First Instance Court of Thebes and tried by virtue of immediate summary proceedings ( ie where no further investigations are required) : Mr Ebigwei on 15 November 1999 and Mr Eziobou on 19 November 1999. The Court sentenced Mr Ebigwei to thirty-eight days’ imprisonment, convertible into a pecuniary penalty and Mr Eziobou to three months’ imprisonment. The Court also ordered their immediate expulsion. Since that date and until 25 December 1999, the applicants have both been detained at the police station in Thebes in a small cell (1,5 m x 2 m) and fed once every two days. Between 27 and 29 December, they were transferred in the police headquarters in Athens , in view of their deportation to Nigeria .

COMPLAINTS

1. The applicants allege that their imminent repatriation to Nigeria would expose them to persecution and treatment prohibited by Article 3 of the Convention. They invite the Court to take interim measures on the basis of Rule 39 of the Rules of Court.

2. The applicants also complain , under Articles 3 and 5 § 1 of the Convention, about the conditions and the length of their detention.

3. Finally, they invoke a violation of Article 34 of the Convention. In particular, the applicants’ lawyer submits that he has been unable to submit any relevant documents and evidence before the Court because the case file was not available in the First Instance Court of Thebes. He maintains that the judge dealing with the case took the file at home to draft the judgment during the Christmas holidays and was unattainable by the lawyer. In that respect, the latter invokes a violation of Article 34 of the Convention.

THE LAW

1. The applicants request the Court to invite the Government to refrain from deporting them to Nigeria . They submit that the situation in Odi (the town where they come from and where their families live) is extremely dangerous because of the violence of the conflict between rebels and Government troops in that part of Nigeria (they attach a press communiqué of the Nigerian news agency as evidence of the massacres committed there in that respect) and because their uncle would be the chieftain of the rebels in that part of the country. They also allege that an application to the Supreme Administrative Court against the expulsion decision would have no prospects of success because of the case-law of that jurisdiction on the matter, which is unfavourable to the applicants.

The Court notes that, except Mr Ebigwei who expressed in his testimony to the police his fears concerning his life if he was to be deported to Nigeria , the applicants at no time did they claim before the First Instance Court of Thebes to be at risk of a treatment contraty to Article 3 of the Convention. Neither, did they appeal to the Supreme Administrative Court against the decision ordering their expulsion. In addition, the Court notes that the reasons given by Mr Ebigwei before the First Instance Court of Thebes and those advanced by both applicants before the Court to avoid expulsion, differ radically and are not at all substantiated.

In these circumstances, the Court considers that this part of the application is inadmissible under Article 35 §§ 1 and 3 of the Convention and must be rejected in accordance with Article 35 § 4.

2. The applicants invoke a violation of Articles 5 § 1 and 3 of the Convention as regards the length of their detention pending deportation and the conditions of their detention at the police station in Thebes.

Regarding the complaint under Article 5§ 1, the Court notes that the applicants did not introduced proceedings before the national courts to complain about the arbitrary character of their detention. As to the complaint relating to Article 3, the applicants do not provide any information to substantiate it. Such strict conditions of detention may be attributable either to the lack of space and financial means of the Thebes police station, but the applicants fail to confirm it, or to the will of the police officers to inflict them a harsh treatment, in which case the applicants could have brought proceedings against them.

In these circumstances, the Court considers that this part of the application is inadmissible under Article 35 §§ 1 and 3 of the Convention and must be rejected in accordance with Article 35 § 4.

3. Finally, the applicants allege a violation of Article 34 of the Convention because of their impossibility of their lawyer to have access to their file at the First Instance Court of Thebes.

The Court notes that the lawyer of the applicants has not been intentionally deprived of access to the case file. If an impossibility of having access actually existed, it was temporary due to the fact that the judge dealing with the case took away the file at home during Christmas holidays, a common practice in Greek courts.

In these circumstances, the Court considers that this part of the application is inadmissible under Article 35 § of the Convention and must be rejected in accordance with Article 35 § 4.

It follows that the application must be rejected under Article 35 § 4 of the Convention.

For these reasons, the Court, unanimously,

DECLARES THE APPLICATION INADMISSIBLE .

Erik Fribergh Marc Fischbach Registrar President