Strasbourg Observers

Whatever happened to Greek hotspots? The routine handling of routine violations in M.A. and others v. Greece

October 11, 2024

Moritz Baumgärtel

On 3 October 2024, the Fifth Section of the ECtHR, sitting as a Committee, delivered its judgment in the case of M.A. and others v. Greece. The Court found a violation of Article 3 ECHR due to the unacceptable living conditions in the Chios Vial and Samos Reception and Identification Centres (“RICs”). Together with T.A. and others v. Greece, four cases related to unaccompanied minors, this marks the day on which the Court has handed down the most rulings yet finding violations of Article 3 in EU hotspots in Greece. In the analysis that follows, the judgment in M.A. and others will be used as a representative case to break down some of the virtues and limitations of the Court’s approach after 2023, which is best described as a routine handling of routine violations of an absolute human right in Greek hotspots.

The facts

M.A. and Others v. Greece combines four cases (M.A. v. Greece, Appl. No. 15192/20, C.K. v. Greece, Appl. No. 15728/20, A.G.D. and D.M. v. Greece, Appl. No. 16094/20, and F.J. and others v. Greece, Appl. No. 16511/20) into one judgment. All applicants, eight in total, complained under Article 3 of the ECHR — the right not to be subjected to torture and inhumane and degrading treatment — about their living conditions in the Greek RICs during the period between 6 October 2019 and 25 September 2020. At this time, reports described the conditions in and around camps like Vial as shocking, disgusting, and shameful.

The applicants in the four cases share a similar trajectory through the island hotspots but differ in their personal characteristics. The first applicant is a Syrian adult suffering from chronic hepatitis B. Shortly after his arrival, he was placed in a temporary tent outside overcrowded containers in Vial, where he remained for nine months. The second case concerned an unaccompanied minor from the Democratic Republic of Congo, 15 years old when he arrived at Samos RIC in October 2019. He was first placed in a “safe zone” for minors and eventually transferred to a facility on the mainland in September 2020. The applicant in the third case was a 17-year-old pregnant and unaccompanied minor from Cameroon who arrived at Samos RIC in October 2019. After being placed in the “safe zone” for minors, she gave birth shortly before the end of 2019. She was transferred to Lesbos in April 2020. The applicants in the fourth and final case were a family of young parents from Syria, both aged 21 at the time, with two infant children, who stayed at Samos RIC between 23 December 2019 and 30 April 2020.

The judgment

The judgment, delivered by a Committee consisting of three judges, is as brief as it is clear. Rejecting the Greek government’s objection of non-exhaustion of local remedies because “no relevant national case-law examples [had] been provided… to demonstrate effectiveness of any remedy” (para. 5), the Court moves swiftly through the main principles applicable to the living conditions of asylum seekers and minors (para. 7). The judgment addresses each case briefly but separately, starting with the first applicant, M.A. The Court notes that during his time at Vial RIC, the camp was provenly overcrowded by 400-500%, leaving the applicant in a situation where living in a tent for nine months had “a deleterious effect on his living conditions and access to medical and sanitary facilities” (para. 10). According to the Court, this situation amounted to a violation of his rights under Article 3.

In the second case, C.K., the Court again first establishes the facts, “[a]ccording to reputable international and domestic sources,” showing “severe overcrowding, lack of access to medical and sanitary facilities, insufficient food supply, lack of security and high crime rates” in Samos RIC (para. 12). Importantly, this situation was not substantially different in the “safe zones” for minors, leading the Court to conclude that the unaccompanied minor was not placed in conditions appropriate for him. The same reasoning is applied to the third case, A.G.D. and D.M., concerning the pregnant unaccompanied minor who gave birth in the “safe zone” (paras. 14-15). In the case of the Syrian family (F.J. and others), the Court merely refers back to its initial characterization of Samos RIC (para. 16). The Court concludes the analysis by finding a violation of Article 3 in each of the three cases (para 17).

It is noteworthy that the Court rejects all other complaints, which were based on Articles 2, 3, and 34 (in the case of M.A.), Articles 5, 13, and 14 (for F.J. and others), and Article 8 (in C.K. and A.G.D. and D.M.). The latter, specifically, is dismissed with reference to Centre for Legal Resources on behalf of Valentin Câmpeanu v. Romania (para. 156), which established that a remaining submission does not need to be considered if the Court “has dealt with the main legal questions” (M.A. and others, para. 23). All other complaints are rejected either due to admissibility issues or as being manifestly ill-founded (para. 25). All applicants are awarded non-pecuniary damages, respectively, of EUR 2,500 (M.A., F.J. and others), EUR 5,000 (A.G.D. and D.M.), and EUR 6,500 (C.K.) per applicant.

Analysis

To start, M.A. and others should be welcomed as an unequivocal finding of a breach of Article 3 by Greece in light of the horrendous conditions that prevailed during the time the claimants lived there (and which, as evidence suggests, continue in the now renamed, highly securitized “Closed Controlled Access Centres”). In fact, the decision is the latest in a string of cases identifying a violation of Article 3. If we look at the list of 82 cases originating from Greek hotspots – and I have made an overview available on my website – there have been 17 judgments since April 2023 holding that the living conditions in the various locations qualified as inhumane and degrading treatment.

The significance of the findings of violations of Article 3 should not be understated, despite signs to the contrary (which I will address in a moment). Notably, the Court refrained from reaching this conclusion in its first three decisions on Greek hotspots (J.R. and others, O.S.A. and others, Kaak and others), which were delivered in 2018 and 2019. In these early rulings, which sparked interest on this blog, the Court pointed to the “exceptional and brutal increase in migratory flows,” due to which Greece faced “logistical and structural difficulties” (J.R. and others, para. 138, my translation), leading to emergency situations in the hotspots and, quote, “undeniable difficulties and inconveniences” for the persons living there (ibid., para. 143). However, given the alleged lack of information on the conditions prevailing in the facility (ibid, para. 144; this factor arguably distinguished the case from earlier ones like M.S.S. v. Belgium and Greece), the semi-open structure of these facilities and the fact that the applicants in these cases only spent a short time under such conditions, the threshold of Article 3 was found not to have been reached (ibid, para. 155). As a result, the Court limited its findings to a violation of Article 5(2), since the applicants were not informed of the reasons for their detention.

Following Kaak, the end of a three-year hiatus leading to the next substantive finding of a violation in A.D. v Greece also marked the beginning of the Court’s new approach to Article 3. In M.A. and others, the Court merely notes, but does not substantively engage with, the government’s objection that it “was facing an international migration crisis challenging the ability of the authorities to deal with the exceptional number of incoming migrants” (para. 8). The Court’s “post-COVID” line of reasoning also largely dispenses with lengthy reflections on the general conditions in the hotspots. Instead, it points to select pieces of evidence, in this case statistical reports from the Greek government (para. 10) and “reputable international and domestic sources” (para. 12), to confirm what can only be described as the well-documented reality. That said, there is still the occasional eyebrow-raiser: in M.M., a case declared manifestly ill-founded in December 2023, the Court decided to “rely on the facts not disputed between the parties” (para. 26) to find that there was not enough evidence to support the claim that the living conditions on the outskirts of the Moria camp in 2018 could result in such a violation.

One important factor allowing the Court to be more assertive in finding Article 3 breaches is the heightened vulnerability of the applicants. In M.A. and others, the first applicant was suffering from chronic hepatitis B, while the fourth case concerned a family of young parents with two infants. The second and third applicants, like the claimants in T.A. and others, decided on the same day, were unaccompanied minors. Previous judgments have involved pregnant women and an elderly persons with chronic conditions such as diabetes. Still, having specific vulnerabilities is not anymore a guarantee to success, as noted by a lawyer involved in multiple cases from the Greek islands.

As in M.A. and others, the Court does not always explicitly mention vulnerability; however, it is clear from the line of argumentation that it is a relevant factor. This implies, at least, that the “average” person without any special characteristics or ailments would not have succeeded with a similar claim. Fortunately for the Court, there is usually no need to deal with applicants who are “not more vulnerable than any other adult asylum-seeker detained at the time” (as infamously declared in Ilias and Ahmed v. Hungary, para. 87). Looking through all the Greek hotspot cases (as found in the overview), one notices that almost every applicant possesses some specific vulnerability that, at the end of the day, facilitates the finding of an Article 3 violation. The Court itself is partly responsible for this situation, giving priority under Rule 41 of the Rules of the Court to cases like M.A. and others. While this is understandable, it does mean that applicants suffering from the regular “migratory” vulnerability induced by the EU’s hotspot policy and the Greek State are (far) at the back of the queue.

One detail that could easily be missed is that the Court, institutionally, seems to suggest that cases like M.A. and others are not particularly remarkable. Like all of the “post-COVID” case law, judgments are made in Committee constellations featuring three judges. This is also true for A.D. v. Greece, which marked the departure from the early hotspot cases and is referenced in M.A. (para. 12) as establishing that the situation in Samos RIC was problematic. Even more strikingly, M.A. and others, like all recent findings of a violation of Article 3, is labelled with the low importance level 3 (of 3), which designates decisions that are “of little legal interest” (HUDOC User Manual, 2022, p. 8). Then again, most of these judgments were prioritized under Rule 41, which seems to contradict this characterization. Not important, but still important – one can speculate that the Court is trying to speak to (and appease) different audiences.

With at least 30 cases still pending, it is almost certain that the Court will issue more rulings similar to M.A. and others in the coming months. In this regard, the Greek hotspot cases have truly become routine business for Strasbourg. However, while any violation of Article 3 is inherently disturbing, there is a real risk that the Court’s current low-profile approach to these cases may also end up trivialize them, casting these violations by the Greek government as routine and, as suggested by the ECtHR’s own classification system, ultimately unimportant.

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