Degrading Treatment of Migrants in Detention: M.S.S. v. Greece

Background

Photo by Ye Jinghan on Unsplash

Mr M.S.S, an Afghan national, fled war-torn Kabul in early 2008 fearing for his life due to his service as an interpreter for international air force troops based in Kabul. Upon entering Greece, the authorities registered his fingerprints but issued an order to leave Greece after detaining him for a week. Instead of exiting Greece, M.S.S. travelled to Belgium and applied for asylum there. However, the Belgian authorities delivered him back to Greece for the asylum procedure despite his resistance due to fear of later being sent to Afghanistan. Upon his arrival to Greece, the authorities detained him in a limited-occupancy building where he could use the toilets only when allowed by the guards, was provided very little to eat, and slept on a dirty mattress or on the floor. Once released, he was homeless and had no permanent place of residence. To avoid a potential return to Afghanistan, he attempted to leave Greece with false papers. When arrested, he was once again placed in detention where he was allegedly beaten by those in charge of the centre. 

The Court’s Judgment
The European Court of Human Rights held that harsh detention conditions in Greece - such as overcrowding, insufficient ventilation, lack of regular access to toilets or sanitary facilities, and inadequate food - had been inhuman and degrading. Furthermore, the Court held that M.S.S. had not been given an adequate opportunity by the Greek authorities to defend his application for asylum. It was further noted by the Court that Greece has notably low rates of asylum application approvals. Despite a consensus both at the international and European levels, the authorities failed to provide the victim with special protection owing to his status as an asylum seeker. The Court, referring to the reports from various organizations, Council of Europe Commissioner for Human Rights and the UNHCR as well as several NGOs, pointed out that the brutal living conditions accompanied by prolonged uncertainty are experienced by a large number of asylum-seekers and such circumstances occur on an alarming scale.

Status of Implementation 
M.S.S. v. Greece is supervised together with several other cases concerning degrading treatment of asylum seekers or irregular migrants, including unaccompanied minors kept in detention facilities in Greece. Although there is a Court judgment in this group of cases from 2010 pending implementation, the last NGO submission in 2019 shows that the Greek authorities failed to enable sustainable measures to address multiple ongoing issues. 
As of June 2019, the authorities provided no data regarding the reasoning of decisions on asylum applications. The existing remedy against rejection decisions proved ineffective. As for living conditions, the Greek Council for Refugees expressed their concern about the overcrowding and major risk of sexual and gender-based violence. Migrants still face unsanitary detention conditions, lengthy lockdowns and inadequate health-care services. As for unfavourable detention and living conditions for minors, the government is yet to address certain issues, in particular, prolonged protective custody and limited access to education. Furthermore, although the government put in place a legal aid scheme, out of a total of 15,355 appeals lodged in 2018, only 21.8% of asylum seekers benefited from the state-funded legal aid scheme. Moreover, 91% of the decisions were negative. 
The Greek authorities are required to adopt measures to provide a fair asylum procedure with a reasonable amount of waiting time; as well as appropriate detention and living conditions for migrants, especially minors. The Committee of Ministers will examine this group of cases in September 2020. 


Useful Links to M.S.S. v. Greece (Application No 30696/09) 
Judgment of the European Court of Human Rights

 Case summary on Hudoc-EXEC