Judgment of the European Court of Human Rights in the case J.R. and others v. Greece (Appl. No. 22696/16)


Detention of migrants with the view to implement the EU-Turkey Statement: the Court of Strasbourg (un)involved in the EU migration policy.

In its judgment J.R. and others v. Greece the Court of Strasbourg deals for the first time with the implementation of the EU-Turkey Statement, assessing the circumstances and the conditions of the detention of three Afghan nationals in the Greek hotspot on the island of Chios. The Court ruled that the applicants’ deprivation of liberty in view of the implementation of the EU-Turkey Statement could not be regarded as arbitrary and unlawful, however they had not been properly informed about the reasons of their detention and the remedies available to challenge it. As to the living conditions in the Greek hotspot, despite multiple reports of national and international organisations denouncing the overcrowding and the poor standards of living, the Court found that they were not severe enough to amount to inhuman or degrading treatment.

EU-Turkey Statement – Hotspots – Detention of migrants – Prohibition of inhuman and degrading treatment (Article 3 ECHR) – Right to liberty and security (Article 5 ECHR).

A. The Ruling

On 25 January 2018 the European Court of Human Rights (“ECtHR”) delivered its judgment in the case J.R. and others v. Greece (Application No. 22696/16) in which it dealt, for the first time, with the implementation of the EU-Turkey Statement signed in March 2016 as a response by the European Union to the increasing migratory pressure.

The Court of Strasbourg, in particular, had to assess the compliance with the European Convention of Human Rights (“the Convention”) of the circumstances and the conditions of the applicants’ detention in the “Vial hotspot”, a migrant reception centre on the Greek island of Chios, where they were kept with the view to implement the EU-Turkey Statement.

The applicants are three Afghan nationals who arrived on the Greek island of Chios on 21 March 2016, that is to say, one day after the entry into force of the EU-Turkey Statement, which provides, under certain conditions, for the return to Turkey of irregular migrants crossing from Turkey to Greece. After their arrival, they were arrested and placed in the “Vial hotspot”, a centre for the reception, identification and registration of migrants. The first applicant remained in the centre until September 2016, the others until November 2016; in the meantime, they all applied for asylum.

The applicants argued that the conditions of the hotspot were contrary to Article 3 of the Convention (prohibition of inhuman and degrading treatment) due to overcrowding and poor living conditions such as insufficient food, lack of water supply, bad hygiene, lack of proper medical assistance, as confirmed by several reports of various organisations, including the UNHCR and the UN High Commissioner for Human Rights, which intervened in the case in Strasbourg as third parties.

Relying on Article 5 §1 (right to liberty and security) and Article 5 §2 (right to be informed promptly of the charge) of the Convention, the applicants also complained about the modes and circumstances of their detention. Lastly, one of the applicants also complained about the violation of Article 34 of the Convention (right to individual application) as, while the proceeding was pending before the ECtHR, he was summoned and interrogated by the Greek police about his application, allegedly with the purpose of being intimidated or dissuaded from further pursuing the case in Strasbourg.

The Alleged Violation of Article 5 ECHR

With regard to the applicants’ deprivation of liberty, the Court, first of all, had to deal with the question as to whether they were effectively detained. According to the Greek government, in general terms, migrants kept in the hotspots or similar centres cannot be considered in “detention”, as they are intended to stay in such structures only for a limited period of time and for the sole purpose of being identified and registered. Moreover, the “Vial hotspot” on the island of Chios was converted into a semi-open centre, so that the applicants were free to go and stay out during the day; therefore they had been subjected to a mere restriction of movement and not to deprivation of liberty, the Government concluded.

The Court noted that the “Vial hotspot” was converted into a semi-open centre on 21 April 2016, but the applicants had been kept there since 21 March 2016. Therefore, the period of 30 days in between these two dates, during which the centre was a closed facility, effectively amounted to deprivation of liberty, whereas afterwards applicants were subject to a restriction of movement.

Having that clarified, on the merits no violation of Article 5 §1 was found by the Court, according to which the one-month period of detention on the island of Chios could not be considered as arbitrary and unlawful as it aimed at the implementation of the EU-Turkey Statement: carrying out the identification and registration procedures with the view of the applicants’ removal to Turkey. To that end, moreover, in the Court’s view, one month of detention could not be considered as an excessive period of time in the light of such proceedings and administrative formalities.

On the contrary, the ECtHR found a violation of Article 5 §2 of the Convention, as the applicants were not properly informed about the reasons of their detention and the possible legal remedies to redress it. Indeed, although, as the Greek government affirmed, information were provided through the distribution of leaflets, their content was not sufficiently clear, detailed and understandable for the Afghan applicants.

The Alleged Violation of Article 3 ECHR

With regard to the alleged violation of Article 3 due to the conditions in the Greek hotspot, the Court takes the occasion to reiterate that, in general terms, this disposition of the Convention admits no derogation, even in cases of massive influx of migrants, which, although may put States under considerable pressure, do not absolve them of their obligation to ensure conditions compatible with respect for human dignity (M.S.S. v. Belgium and Greece [GC], no. 30696/09; Hirsi Jaamaa and others v. Italy [GC], no. 27765/09). Yet the Court acknowledges the serious difficulties encountered by Greece in dealing with the reception of thousands of migrants, also making a parallelism with the case of Italy and Lampedusa (Khlaifia and others v. Italy [GC], No. 16483/12) and observing that the management of massive inflows of migrants is particularly burdensome for national authorities when it takes place on small islands.

As to the concrete assessment of the living conditions in the “Vial hotspot”, the Court takes in particular consideration the findings of the European Committee for the Prevention of Torture, which, despite having reported issues with regard, for example, to the quality of food, drinking water and medical care, in general had not been particularly critical of the living conditions of the hotspot on the island of Chios. On the basis of such findings and considering also the brevity of the applicants’ detention (30 days, before the centre became a semi-open facility), the Court concluded that the conditions in the Greek hotspot did not reach the necessary threshold of severity to be considered inhuman or degrading, therefore no violation of Article 3 was found.

Finally, no violation of Article 34 of the Convention was found either. One of the Afghan applicants was interrogated by the Greek police about his application to the ECtHR while the proceeding was pending, with the purpose, in his view, to intimidate or dissuade him from further pursuing the case. The Court stresses that, in principle, it is not appropriate for national authorities to directly interact with an applicant in connection with his/her pending case in Strasbourg. In this case, however, in the ECtHR’s view, there was nothing to suggest that the aim of the applicant’s interrogation had been to persuade him to withdraw his application.

B. Comments

The ECtHR on the “Hotspot Approach”

The ECtHR had to deal with the issue of the respect of human rights in relation to two important measures of the recent EU migration policy: the “hotspot approach” and the EU-Turkey Statement.

The “hotspot approach” was introduced in 2015 as a specific tool to assist frontline Member States in dealing with increasing migratory pressure, with the view of ensuring an orderly and well-organised management of flows through the swift and proper identification, registration and processing of migrants[1]. However, since the operationalization of the hotspots (10 are currently active: 5 in Italy and 5 in Greece[2]), several fundamental rights issues have emerged, including, in particular, the lack of proper protection of vulnerable groups such as unaccompanied minors and insufficient guarantees of an individual, objective and impartial assessment of asylum applications.

In its judgment, the ECtHR does not address the legitimacy of the hotspots or their compliance with the Convention; this would exceed its competence as it only had to rule whether the applicants’ human rights were violated during their detention and subsequent stay in the centre on the island of Chios. However, even if implicitly, some considerations can be drawn from the ECtHR’s decision.

Firstly, the Court reaffirms the States’ prerogative to detain migrants for the purposes of carrying out reception and identification procedures. Also it highlights that in cases of intense migratory pressure, especially in small islands like Chios or Lampedusa, serious issues may arise in terms of respect of migrants’ fundamental rights due to the undeniable practical difficulties faced by national authorities; these circumstances cannot be ignored by the Court in order to assess, together with other factors, the threshold of severity required by Article 3 of the Convention, which, therefore, might be higher in such situations. While acknowledging that, the Court, however, seems also to suggest that, despite the EU actions and policies, some Member States have proven to be largely unprepared to manage migratory flows, with direct responsibilities in relation to the respect of migrants’ human rights. With specific regard to the Greek hotspot of Chios, in particular, the Court highlights “le manque total de préparation de la gestion des arrivées des migrants” and “la situation chaotique” [3] provoked by the massive inflow of migrants, with consequent repercussions on their human rights. As already said, however, in this specific case the ECtHR excluded the violation of the Convention with regard to the conditions of the Greek hotspot.

The ECtHR on the EU-Turkey Statement

Also with regard to EU-Turkey Statement, the Court does not tell us much, at least in explicit terms. The statement was agreed on 18 March 2016 with the purpose of curbing irregular and dangerous migrant crossings from Turkey to the Greek islands and establishing a mechanism governing the return of irregular migrants from Greece to Turkey and the resettlement of Syrians from Turkey to the EU.

The Tribunal of the EU had declared its lack of jurisdiction over the Statement, considering it as an agreement between the Member States (rather than the EU or its institutions) and Turkey, being therefore unable to hear and determine actions brought by asylum seekers in this context (NF, NG and NM v. Council, Cases T-192/16, T-193/16 and T-257/16).

In J.R. and others v. Greece the Court of Strasbourg dealt for the first time with the EU-Turkey Statement, referring to it as “un accord sur l’immigration conclu…entre les États membres de l’Union européenne et la Turquie”[4], in this way following the Tribunal of Luxembourg. As to the question of the nature of the “Statement” and, especially, whether it is merely a political act or a legally binding agreement, the ECtHR leaves it open (as the Tribunal did): on the one hand, referring to it as “un accord” and, on the other, as “une déclaration visant à lutter contre les migrations irrégulières” [5].

The judgment in J.R. and others v. Greece perhaps may be regarded as a sort of endorsement of the EU-Turkey Statement insofar as its implementation constitutes, under certain conditions, a legitimate reason for the detention of migrants. According to the Court, indeed, depriving the applicants of their liberty (at least, for 30 days) in order to carry out the identification and registration procedures as part of the implementation of the EU-Turkey Statement was considered compatible with the Convention. The ECtHR, in any case, still applied the principles of its case-law concerning the right to liberty and indeed found a violation of Article 5 §2, as Greece failed to properly inform the applicants of the reasons of their detention and of the available remedies.

Ultimately, the Court avoids to take explicit position on such delicate and highly sensitive issue. While it affirms that the implementation of such “agreement” may justify the detention of migrants (as long as the State meets certain requirements established in the Convention and in the ECtHR’s case-law), it also highlights that the swift processing of migrants within hotspots must not come at the expense of their rights and safeguards. The Court of Strasbourg, anyhow, will be called to express itself again on cases involving hotspots and expulsions to Turkey, as other proceedings concerning these issues are already pending[6]: maybe, on those occasions, the Court will show a little more courage and tell us more.

WhatsApp, selfies and mobile phones: new tools for the protection of human rights?

If the judgment J.R. and others v. Greece leaves some questions open, yet it addresses an interesting issue with regard to the powers of attorney necessary to apply to the ECtHR. Indeed, in this case, the applicants’ representative, a lawyer based in Germany, never met the three Afghan nationals and lodged the application to the Court of Strasbourg without their signature on the application form. They were detained in the Greek island of Chios, so it was not possible to reach them and obtain their signature, the lawyer explained to the Court.

Instead of the applicants’ signature, the lawyer provided the Court with a copy of the text of WhatssApp messages he exchanged with them, proving that they had confirmed the willingness to pursue the case before the ECtHR and, for this purpose, to be represented by him. The lawyer also provided the Court with the photos of the applicants, taken by them in the “Vial hotspot” in Greece and sent via WhatssApp to Germany. Once the application was lodged, the Court asked the lawyer for clarifications and additional details and, after having received explanations, it declared the application admissible.

What really matters for the Court – which recalls the case Hirsi Jaamaa and others v. Italy where there had been issues about the lawyer-applicant contacts via email and phone – is that the willingness to lodge an application and to be represented are clearly indicated. Indeed the ECtHR observes that neither the Convention nor the Rules of Court impose any specific requirements on the manner in which this has to be done: this conclusion could open new interesting avenues for cases involving migrants in detention and their right to access to the Court.

Francesco Luigi Gatta

C. Pour aller plus loin

To consult the judgment : ECtHR, 25 January 2018, J.R. and others v. Greece, Appl. No. 22696/16

- A. Pijnenburg, JR and Others v Greece: what does the Court (not) say about the EU-Turkey Statement?, Strasbourg Observer, 21 February 2018.

- D. Neville, S. Sy, A. Rigon, On the frontline: the hotspot approach to managing migration, study commissioned by the Committee on Civil Liberties, Justice and Home Affairs, European Parliament, Brussels, 2016.

- H. Labayle, P. De Bruycker, The EU-Turkey Agreement on migration and asylum: False pretences or a fool’s bargain?, Eumigrationlawblog.eu, 1 April 2016.


To cite this comment: F.L. GATTA, “Detention of migrants with the view to implement the EU-Turkey Statement: the Court of Strasbourg (un)involved in the EU migration policy”, Cahiers de l’EDEM, mars 2018.


[1] See European Commission, European Agenda on migration, of 13 May 2015, COM(2015) 240 final.

[2] See European Commission, Hotspot state of play, 18 December 2017.

[3] J.R. and others v. Greece, § 141.

[4] J.R. and others v. Greece, § 7.

[5] J.R. and others v. Greece, § 39.

[6] See, for instance, the case J.B. v. Greece (No. 54796/16), communicated to the government on 18 May 2017.

Photo : Nicoleon — Travail personnel, CC BY-SA 4.0

Publié le 30 mars 2018