Resolution CM/ResDH(2009)128 [1]

Execution of the judgment of the European Court of Human Rights

Dougoz against Greece

(Application No. 40907/98, judgment of 6 March 2001, final on 6 June 2001)

The Committee of Ministers, under the terms of Article 46, paragraph 2, of the Convention for the Protection of Human Rights and Fundamental Freedoms, which provides that the Committee supervises the execution of final judgments of the European Court of Human Rights (hereinafter “the Convention” and “the Court”);

Having regard to the judgment transmitted by the Court to the Committee once it had become final;

Recalling that the violations of the Convention found by the Court in this case concern the conditions under which the applicant was detained whilst awaiting expulsion, which the Court considered to amount to degrading treatment (violation of Article 3), the fact that his detention was not effected “in accordance with a procedure prescribed by law” (violation of Article 5, paragraph 1) and lack of judicial review of this detention (violation of Article 5 paragraph 4) (see details in Appendix);

Having invited the government of the respondent state to inform the Committee of the mea s ures taken to comply with its obligation under Article 46, paragraph 1, of the Conve n tion to abide by the judgment;

Having examined the information provided by the government in accordance with the Committee ' s Rules for the application of Article 46, paragraph 2, of the Convention;

Recalling that recent changes to the law concerning the length of aliens ' detention pending expulsion are being examined by the Committee in the framework of its supervision of the execution of the judgment in Kaja against Greece of 27 July 2006.

Having satisfied itself that the respondent state paid the a p plicant the just satisfaction provided in the judgment (see details in Appendix),

Recalling that a finding of violations by the Court requires, over and above the payment of just satisfaction awarded by the Court in its judgments, the adoption by the respondent state, where appropriate:

- of individual measures to put an end to the violations and erase their consequences so as to achieve as far as possible restitutio in integrum ; and

- of general measures preventing similar violations;

DECLARES, having examined the measures taken by the respondent state (see Appendix) that it has exe r cised its functions under Article 46, paragraph 2, of the Convention in this case and

DECIDES to close the examination of this case.

Appendix to Resolution CM/ResDH(2009)128

Information about the measures to comply with the judgment in the case of

Dougoz against Greece

Introductory case summary

This case concerns the conditions of the applicant ' s detention between 1997 and 1998, in the Alexandras Avenue ( Athens ) Police Headquarters and the Drapetsona ( Piraeus ) police detention centre. On 25 June 1997, the applicant who was at the time serving a three-year prison sentence following his conviction for drug-related offences, asked for his release on licence claiming that he could return to his country of origin. The competent criminal court decided that the applicant should be released on licence and expelled from Greece . Following this decision the applicant was released on 10 July 1997 and placed in detention in the centres mentioned above pending his expulsion.

The detention conditions were qualified by the European Court as a degrading treatment (violation of article 3) in particular due to the serious overcrowding and the lack of sleeping facilities, combined with the excessive length of his detention under such conditions (about 17 months in all).

The case also concerns the fact that the applicant ' s detention pending expulsion was not effected in accordance with a procedure “prescribed by law” in the sense of Article 5§1 of the Convention. The Court noted in this respect that the applicant ' s expulsion was ordered by a judicial decision and that his detention, was based on the application by analogy of a ministerial decision applicable to the administrative expulsion of foreigners (violation of Article 5§1).

Finally, the case concerns the fact that the domestic legal system did not afford the applicant an opportunity to challenge the lawfulness of his detention pending expulsion before a national court (violation of Article 5§4).

I. Payment of just satisfaction and individual measures

a) Details of just satisfaction

Non-pecuniary damage and costs and expenses

Total

5 000 000 drachmas (GRD)

5 000 000 drachmas (GRD)

Paid on 10/09/2001

b) Individual measures

The applicant is no longer detained in Greece , he was expelled in 1998. The European Court awarded him just satisfaction in respect of the non-pecuniary damage he had suffered. In these circumstances, no other individual measure was considered necessary.

II. General measures

1) Violation of Article 3

The Alexandras Avenue Police Headquarters in is no longer used for the detention of aliens awaiting expulsion. The Drapetsona Detention Centre was refurbished in 2005 to provide the best conditions of cleanliness for detainees; it moreover accommodates detainees awaiting expulsion for very short periods only.

In 2006, a new detention centre aliens was opened in Athens ( Petrou Ralli Avenue ). Another centre was opened in 2007 in the Prefecture of Evros in Nothern Greece . Another centre has been in operation since November 2007 on Samos Island . In the old centres of detention at Rhodope, Mytilini and Piraeus , improvements of the installations have been carried out in accordance with the observations of the Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT). Seven new detention centres have opened in various police headquarters, four of which are on the frontier islands of Chios, Samos, Lesbos and Corfu .

Furthermore, special reception centres with appropriate medical staff are also provided to accommodate adults, minors and families. Since 2008, two new centres have been operational, one at Lakonia and one other at Amygdaleza Attikis, the latter being intended for the accommodation of minors.

The authorities underlined the fact that the country, in view of its geographical position, faces an inflow of illegal immigrants which requires action at a European level (see in particular the Commissioner for Human Rights ' report following his visit to Greece on 8-10 December 2008, CommDH(2009)6§37 and following; furthermore, according to the national authorities ' statistics, in 2008 the number of irregular immigrants exceeded 96 000). In this context they plan to build 27 new accommodation centres with the help of European funding. In order to deal with illegal immigration, closer co-operation between Greece , Cyprus , Malta and Italy was announced by the Greek Minister for the Interior following the decisions of Council of Ministers of the Interior of the European Union, on 27 November 2008, in Brussels .

Finally it should be noted that access to lawyers, consular authorities and NGOs is available seven days a week in all detention centres for foreigners. In addition, leaflets outlining the rights of detainees are available in 15 languages in all those centres. A personal file is set up for each person detained pending expulsion in which all events which take place during his or her detention are recorded.

Furthermore, by Laws Nos. 2910/2001 and 3386/2005 (amended by Law No. 3536/2007 and by the recent Law No. 3772/2009 (A112/10-7-2009), a maximum time-limit was fixed for the length of detention pending expulsion. In this respect, it should be recalled that these measures are being examined by the Committee of Ministers within the framework of its supervision of the execution of the judgment in Kaja against Greece (judgment of 27/07/2006), which concerns mainly t he excessive length of the applicant ' s detention pending his expulsion.

The authorities have underlined their firm commitment to pursuing their efforts to improve detention conditions, in the light, in particular, of the recommendations of the CPT.

2) Violations of Article 5§§1 and 4

The detention and expulsion of aliens following a court order are now regulated by Inter-ministerial Decision 137954 (OJHR B 1255/16.10.2000), issued under Immigration Law 1975/1991 and making express reference to Article 5§1f of the Convention. According to this inter-ministerial Decision, the detention of aliens under expulsion following a court order is now subject to review by the public prosecutor and the courts (see also Article 565 of the Code of criminal procedure).

III. Conclusions of the respondent state

The government considers that no individual measure was required in this case, apart from the payment of the just satisfaction awarded to the applicant by the Court, that the measures adopted will prevent similar violations and that Greece has thus complied with its obligations under Article 46, paragraph 1, of the Convention.

[1] Adopted by the Committee of Ministers on 3 December 2009 at the 1072nd meeting of the Ministers’ Deputies