Information Note on the Court’s case-law 28

March 2001

Dougoz v. Greece - 40907/98

Judgment 6.3.2001 [Section III]

Article 3

Inhuman treatment

Conditions of detention pending expulsion: violation

Article 5

Article 5-1

Lawful arrest or detention

Absence of legal basis for detention pending expulsion: violation

Article 5-4

Review of lawfulness of detention

Absence of court review of lawfulness of d etention pending expulsion: violation

Facts : The applicant, a Syrian national, claims that he was sentenced to death in Syria. He fled to Greece, where he was arrested and sentenced to imprisonment on several occasions, notably for drug-related offences. While in Greece, he was granted refugee status by the UNHCR. In June 1997, while serving a prison sentence, he asked to be sent back to Syria, claiming that he had been granted a reprieve there. The following month, after a court had ordered his release on licence and expulsion to Syria, he was placed in detention pending his expulsion. He complains about the conditions of his detention in Drapetsona detention centre, where he was held for several months, referring in particular to overcrowding, lack of beds and bedding, poor hygiene and lack of room f or physical exercise. In April 1998, he was transferred to the police headquarters, where he was held for a further few months and the conditions of detention were similar (as borne out by a report of the Committee for the Prevention of Torture and Inhuman or Degrading Treatment and Punishment). In May 1998 the first instance criminal court rejected the applicant's request to lift the expulsion order, referring to his previous claim that he was no longer subject to persecution in Syria. It did not mention h is complaint that his detention was unlawful. In December 1998, he was expelled to Syria.

Law : Article 3 – Conditions of detention may amount to inhuman or degrading treatment. In that respect, account has to be taken of the cumulative effects of the condi tions, as well as of specific allegations. The applicant's allegations are corroborated by the conclusions of the CPT report and the Government did not deny the allegations concerning overcrowding and lack of beds and bedding. The CPT stressed that the cel lular accommodation and detention regime at police headquarters were unsuitable for periods in excess of a few days, the occupancy levels being grossly excessive and the sanitary facilities appalling. Moreover, the Government described the conditions at Dr apetsona as being the same as at police headquarters. Consequently, the conditions of the applicant's detention, in particular the serious overcrowding and absence of sleeping facilities, combined with the inordinate length of time during which he was deta ined in such conditions, amounted to degrading treatment contrary to Article 3.

Conclusion : violation (unanimously).

Article 5 § 1 (f) – The provision invoked by the Government as the legal basis for the applicant's detention pending expulsion applies to t he expulsion of aliens by administrative order and provides for the detention of an alien on condition that the execution of an administrative order for expulsion taken by the Minister of Public Order is pending and that the alien is considered to be a dan ger to public order or might abscond. However, in this case the applicant's expulsion was ordered by a court and not by an administrative decision, and the applicant was not considered a danger to public order. While the Deputy Public Prosecutor at the Cou rt of Cassation gave an opinion that a joint ministerial decision applied by analogy to cases of expulsion ordered by courts, the opinion of a senior public does not constitute a “law” of sufficient quality for the purposes of Article 5(1), which has there fore been breached.

Conclusion : violation (unanimously).

Article 5 § 4 – The requests for release which the applicant submitted to the Ministers of Justice and Public Order cannot be considered effective remedies whereby he could challenge the lawfulness of his detention, since they depended on the discretion of the Ministe rs. Moreover, the first instance criminal court failed to rule on the applicant's claim concerning his detention. Consequently, the domestic legal system did not afford the applicant an opportunity to have the lawfulness of his detention pending expulsion determined by a court.

Conclusion : violation (unanimously).

Article 41 – The Court rejected the applicant's claim for pecuniary damage but awarded him 5,000,000 drachmas (GRD) in respect of non-pecuniary damage and costs.

© Council of Europe/European Cour t of Human Rights This summary by the Registry does not bind the Court.

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