REPORTS
Case of Mirzai and Others v Greece – Conviction of Greece for violation of Articles 3 and 5 ECHR
According to Article 3 (prohibition of torture) of the European Convention on Human Rights (hereinafter referred to as the ECHR): ‘No one shall be subjected to torture or to inhuman or degrading treatment or punishment’. This article imposes, inter alia, an obligation on the State to ensure that any person deprived of his or her liberty is held in conditions compatible with respect for human dignity. According to the case-law of the European Court of Human Rights (hereinafter referred to as the ECtHR), detention in police stations for periods of two or three months, by the very nature of police stations as places intended to receive persons for a short period of time, constitutes degrading treatment contrary to Article 3 of the ECHR (see more on the content of Article 3 of the ECHR: 1, 2, 3 and 4).
According to Article 5 (right to liberty and security of person) of the ECHR: “1. Everyone has the right to liberty and security of person. No one shall be deprived of his liberty except in the following cases and in accordance with a procedure laid down by law:… 4 Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful. (see more on the right to liberty and security of person under the case-law of the ECtHR in 1, 2,).
On 23 November 2023 the judgment in the case of Mirzai and Others v Greece (application no. 44312/13) was delivered.
The case concerns the detention of 6 Iranian and Afghan nationals at the police station of Agios Panteleimon in view of their deportation. The applicants invoke, inter alia, Articles 3 and 5(1) and (4) of the ECHR, complaining: a) of the conditions of their detention in the above-mentioned police station and b) of the unlawfulness of their detention and the impossibility of obtaining a decision from a national court on the lawfulness of their detention.
It should be noted at this point that the ECtHR declared the application inadmissible as regards applicants Nos 3 and 4 pursuant to Article 35(1) and (4) ECHR, on the grounds of: a) failure to comply with the six-month time-limit in the case of applicant No 3 (see more in paragraph 16 of the judgment) and b) failure to exhaust national remedies in the case of applicant No 4 (see more in paragraphs 17-18 of the judgment).
The ECtHR, ruling on the merits of the case for the other applicants, concluded that in this particular case:
(i) there was a breach of Article 5(4) ECHR as regards applicants Nos 1, 2, 5 and 6, as the deficiencies in national law in relation to legal aid in administrative cases at the time of the events (i.e. the fact that the legislation at the time did not provide for legal aid in such cases) deprived the applicants of the possibility of obtaining a decision on the lawfulness of their detention (see further in paragraphs 19-28 of the judgment).
(ii) there was a breach of Article 5(1) ECHR as regards applicants Nos 1, 2 and 5, as their detention ceased to be justified on the basis of Article 5(1) ECHR either because of its duration or because of the actions (not) taken by the State (see more in paragraphs 29-48 (and in particular paragraphs 42 and 47) of the judgment)]. On the other hand, the ECtHR rejected as manifestly unfounded the claims relating to Article 5(1) of the ECHR as per the claims of the applicant No 6, considering that his detention was justified (see more in paragraphs 44-45 of the judgment).
(iii) there was a violation of Article 3 ECHR as regards applicants Nos 1, 2, 5, 6, due to their detention for several months at the Agios Panteleimon police station, i.e. in a place which by its nature is intended to receive persons for a short period only (see more in paragraphs 49-53 of the judgment).
Respect for fundamental rights is one of the basic components of the rule of law.
The fundamental rights that every citizen should enjoy are enshrined, inter alia, in the European Convention on Human Rights. It is a primary and undeniable obligation of the State to respect these rights.
However, in this particular case (Mirzai and Others v. Greece) the ECtHR held that there had been a violation of: a) Article 3 ECHR, as the applicants were detained for long periods of time in a police station; and b) Article 5(1) ECHR, as the applicants’ detention had ceased to be justified; and c) Article 5(4) ECHR, as the inadequacies of national law on legal aid deprived the applicants of the possibility of obtaining a decision on the lawfulness of their detention.
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