Grounds for detention

Greece

Country Report: Grounds for detention Last updated: 30/11/20

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Asylum detention

Up until the end of 2019, the relevant provision regulating the detention of asylum seekers was Article 46 L 4375/2016, abolished by IPA, in force since 1 January 2020.[1]

According to this provision, an asylum seeker shall not be detained on the sole reason of seeking international protection or having entered and/or stayed in the country irregularly.[2] In addition, Law 4375/2016 did not allow for the detention of a person applying for asylum at liberty. An asylum seeker could only remain detained if he or she was already detained for the purpose of removal when he or she applied for international protection, and was subject to a new detention order, following an individualised assessment to establish whether detention could be ordered on asylum grounds.[3]

An asylum seeker may only remain in detention if he or she is already detained for the purpose of removal when he or she makes an application for international protection, and subject to a new detention order following an individualised assessment to establish whether detention can be ordered on asylum grounds.[4] In this case the asylum seeker may be kept in detention for one of the following 5 grounds:[5]

  1. in order to determine his or her identity or nationality;
  2. in order to determine those elements on which the application for international protection is based which could not be obtained otherwise, in particular when there is a risk of absconding of the applicant;
  3. when it is ascertained on the basis of objective criteria, including that he or she already had the opportunity to access the asylum procedure, that there are reasonable grounds to believe that the applicant is making the application for international protection merely in order to delay or frustrate the enforcement of a return decision, if it is probable that the enforcement of such a measure can be affected;
  4. when he or she constitutes a danger for national security or public order;
  5. when there is a serious risk of absconding of the applicant, in order to ensure the enforcement of a transfer decision according to the Dublin III Regulation.

For the establishment of a risk of absconding for the purposes of detaining asylum seekers on grounds (b) and (e), the law refers to the definition of “risk of absconding” in pre-removal detention.[6] The relevant provision of national law includes a non-exhaustive list of objective criteria which may be used as a basis for determining the existence of such a risk, namely where a person:[7]

  • Does not comply with an obligation of voluntary departure;
  • Has explicit declared that he or she will not comply with the return decision;Is in possession of forged documents;
  • Has provided false information to the authorities;
  • Has been convicted of a criminal offence or is undergoing prosecution, or there are serious indications that he or she has or will commit a criminal offence;
  • Does not possess travel documents or other identity documents;
  • Has previously absconded; and
  • Does not comply with an entry ban. 

The fact that national legislation includes a non-exhaustive and indicative list of such criteria and thus other criteria not explicitly defined by law can also be used for determining the existence of the “risk of absconding”, is not in line with the relevant provision of the EU law providing that said objective criteria "must be defined by law".[8]

Article 46(2) L 4375/2016 also provided that such a detention measure should be applied exceptionally, after an individual assessment and only as a measure of last resort where no alternative measures can be applied. A new detention order should be also issued by the competent police authority,[9] which must be fully and duly substantiated.[10]

With the exception of the “public order” ground, a detention order under L 4375/2016 is issued following a recommendation (εισήγηση) by the Head of the Asylum Service. However, the final decision on the detention lies with the Police. The Asylum Service made 17,630 recommendations in 2019, of which 5,933 recommended the prolongation of detention and 10,972 advised against detention. Also, 725 recommendations for the continuation of detention were revoked.[11]

The IPA reiterates the provision on the possibility of detaining asylum seekers who apply for asylum while in pre-removal detention on the same grounds as Article 46 L.4375/2016. However as mentioned above the IPA furthers foresees the possibility to detain asylum seekers who have already applied for asylum while at liberty.[12] In addition, the “recommendation” of the Asylum Service has been replaced with prior information by the IPA[13] (see above).  

 

Detention of asylum seekers applying at liberty

 

The IPA, in force since 1 January 2020, provides for the possibility of detaining asylum seekers even when they apply for international protection when not detained, on the basis of any of the grounds provided by article 8 of the Directive 2013/33/EU. According to such grounds an applicant may be detained only:

(a)        in order to determine or verify his or her identity or nationality;

(b)        in order to determine those elements on which the application for international protection is based which could not be obtained in the absence of detention, in particular when there is a risk of absconding of the applicant;

(c)        in order to decide, in the context of a procedure, on the applicant’s right to enter the territory;

(d)        when he or she is detained subject to a return procedure under Directive 2008/115/EC of the European Parliament and of the Council of 16 December 2008 on common standards and procedures in Member States for returning illegally staying third-country nationals (9), in order to prepare the return and/or carry out the removal process, and the Member State concerned can substantiate on the basis of objective criteria, including that he or she already had the opportunity to access the asylum procedure, that there are reasonable grounds to believe that he or she is making the application for international protection merely in order to delay or frustrate the enforcement of the return decision;

(e)        when protection of national security or public order so requires;

(f)         in accordance with Article 28 of Regulation (EU) No 604/2013 of the European Parliament and of the Council of 26 June 2013 establishing the criteria and mechanisms for determining the Member State responsible for examining an application for international protection lodged in one of the Member States by a third-country national or a stateless person (10).

Upon until the entry into force of the IPA, article 46(2) L 4375/2016, Greek law allowed the detention of an asylum seeker only where the person in question submitted an asylum application while already in detention in view of removal, i.e. based on a deportation or a return decision. However, in practise, up until the end of 2019, asylum seekers who have applied for asylum at liberty in one of the Eastern Aegean islands and were subject to a geographical restriction were detained as a rule if arrested outside the assigned area in order to be transferred back in that island. In these cases, a detention order was imposed contrary to the guarantees provided by law for administrative detention and without their asylum seeker legal status being taken into consideration: the detention order was unlawfully issued based on L 3907/2011 and/or L 3386/2005, which refers to the deportation of irregularly staying third-country nationals to their country of origin, as these legal frameworks are not applied to asylum seekers. As it was also the case in previous years, in a case supported by GCR, the Administrative Court of Thessaloniki ordered the release from detention of a woman from Morocco, who was detained for the purpose of her transfer back to Chios on the basis that, inter alia, she is an asylum applicant and could not be detained for return purposes. [14]

The interpretation of the legal grounds for detention in practice

There is a lack of a comprehensive individualised procedure for each detention case, despite the relevant legal obligation to do so. This is of particular concern with regard to the proper application of the lawful detention grounds provided by national legislation, as the particular circumstances of each case are not duly taken into consideration. Furthermore, the terms, the conditions and the legal grounds for the lawful imposition of a detention measure seem to be misinterpreted in some cases. These cases include the following:

Detention on public order or national security grounds

As repeatedly reported in previous years, public order grounds are used in an excessive and unjustified manner, both in the framework of pre-removal detention and detention of asylum seekers.[15] This continues to be the case. The Returns Directive does not cover detention on public order grounds,[16] and thus the relevant Greek provision on pre-removal detention – Article 30(1)(c) L 3907/2011 – is an incorrect transposition of EU law. For both detainees subject to removal and asylum seekers, detention on public order grounds is usually not properly justified.

The authorities issue detention orders without prior examination of whether the “applicant’s individual conduct represents a genuine, present and sufficiently serious threat”, in line with the case of law of the Council of State and the CJEU.[17] This is particularly the case where these grounds are based solely on a prior prosecution for a minor offence, even if no conviction has ensued, or in cases where the person has been released by the competent Criminal Court after the suspension of custodial sentences. The Ombudsman has once again in 2019 criticised this practice.[18] In a case supported by GCR in 2019, the Administrative Court of Athens accepted objections against the detention of a citizen of Bangladesh who was administratively detained in Kypseli police station, on the grounds that, inter alia, he was convicted to a 6-month suspended sentence, for selling small objects on the street, without permission. The Court declared, inter alia, that his conviction as a street vendor does not constitute a particular danger to the public order and ordered his release from detention.[19]

In addition, detention on national security or public order grounds has been also ordered for reasons of irregular entry into the territory, contrary to Article 31 of the Refugee Convention and the prohibition on detaining asylum seekers on account of their irregular entry or presence formerly under Article 46(1) L 4375/2016, now under Article 46(1) IPA.  

Moreover, as the Ombudsman has highlighted on the practice of imposing detention on public order grounds solely based on a prior conviction by which custodial measures have been suspended, the mere suspensive effect of the sentence granted by the competent Criminal Court proves that the person is not considered a threat to public order, while his administrative detention on public order grounds raises questions of misuse of power on behalf of the police.[20]

Detention of applicants considered to apply merely in order to delay or frustrate return

The June 2016 Police Circular on the implementation of the EU-Turkey Statement provides that, for applicants subject to the EU-Turkey statement who lodge their application while already in detention:

“[T]he Regional Asylum Offices will recommend the continuation of detention on the ground that: ‘there are reasonable grounds to believe that the applicant is making the application for international protection merely in order to delay or frustrate the enforcement of the return decision, in accordance with art. 46(2)(c) L. 4375/2016 in view of his or her likely immediate readmission to Turkey.’”[21]

In practice, this exact wording is invoked in a significant number of detention orders to applicants subject to the EU-Turkey statement, following a relevant recommendation of the Asylum Service, despite the fact that Article 46(2)(c) L. 4375/2016, now Art. 46(3-c) IPA. requires the authorities to “substantiate on the basis of objective criteria… that there are reasonable grounds to believe” that the application is submitted “merely in order to delay or frustrate the enforcement of the return decision”.[22] Neither the detention order nor the Asylum Service recommendation are properly justified, as they merely repeat part of the relevant legal provision, while no objective criteria or reasonable grounds are invoked or at least deduced from individual circumstances. It should be noted that, as stated before, since a number of persons are immediately detained upon arrival under the “pilot project” / “low-profile scheme”, it is clear that these asylum seekers have not “already had the opportunity to access the asylum procedure” while at liberty, as required by the law.

 

Detention without legal basis or de facto detention

 

Apart from detention of asylum seekers under L 4375/2016 and pre-removal detention under L 3386/2005 and L 3907/2011, detention without legal basis in national law or de facto detention measures are being applied for immigration purposes. These cases include the following:

Detention pending transfer to RIC

According to Article 14 (1) L 4375/2016, now 39(1) IPA, newly arrived persons “shall be directly led, under the responsibility of the police or port authorities … to a Reception and Identification Centre.” However and due to the limited capacity of Fylakio RIC, and depending on the number of the flows though the Greek-Turkish land border in Evros, delays occur in the transfer of the newly arrived to the RIC of Fylakio, and they remain in detention while awaiting their transfer ranging from a few days to periods exceeding one month. This detention has no legal basis. As UNHCR describes, “new arrivals, including families and children, once detected and apprehended by the authorities may be firstly transferred to a border guard police station or the pre-removal centre in Fylakio, adjacent to the RIC, where they remain in detention (so called ‘pre-RIC detention’) pending their transfer to the RIC Fylakio. Prolonged ‘pre-RIC detention’ has occurred in instances where new arrivals surpassed the accommodation capacity of RIC Fylakio”.[23]

As far as GCR is aware, by the end of 2019 this practice has been diminished. This may be due to the decrease in the arrests of undocumented entry on the northern land border with Turkey (8,497 in 2019 compared to 15,154 in 2018[24]).

De facto detention in RIC

Newly arrived persons transferred to a RIC are subject to a 3-day “restriction of liberty within the premises of the Reception and Identification Centres” (περιορισμός της ελευθερίας εντός του κέντρου), which can be further extended by a maximum of 25 days if reception and identification procedures have not been completed.[25] This restriction of freedom entails “the prohibition to leave the Centre and the obligation to remain in it.”[26] Taking into consideration the fact that according to the law the persons should remain restricted within the premises of the RIC and are not allowed to leave, the measure provided formerly by Article 14 (2) L 4375/2016, and now by Article 39 (4) IPA, is a de facto detention measure, even if it is not classified as such under Greek law. No legal remedy is provided in national law to challenge this “restriction of freedom” measure during the initial 3-day period.[27] Furthermore, the initial measure is imposed automatically, as the law does not foresee an obligation to carry out an individual assessment.[28] This measure is also applied to asylum seekers who may remain in the premises of RIC for a total period of 25 days even after lodging an application.[29]

In practice, following criticism by national and international organisations and bodies, as well as due to the limited capacity to maintain and run closed facilities on the islands with high numbers of people,[30] the “restriction of freedom” within the RIC premises is not applied as a de facto detention measure in RIC facilities on the islands. There, newly arrived persons are allowed to exit the RIC facility. As noted by UNHCR “[t]he only RIC which continues to operate as a closed facility, is the one in the land Evros region (Fylakio). Persons undergoing reception and identification procedures at the RIC of Fylakio are under restriction of liberty which cannot last more than 25 days. Asylum-seekers are released either directly from the Police after having registered their will to seek asylum or from the RIC, upon the completion of reception and identification procedures and the registration of their asylum claim, unless special grounds apply for their continued detention, as prescribed by law”[31]. As of 31 December 2019, a number of 391 newly arrived persons remained in Fylakio RIC, with a nominal capacity of 240 persons under a de facto detention regime.[32]

Moreover, unaccompanied children may remain at the RIC facilities for a period significantly exceeding the maximum period of 25 days under the pretext of “protective custody”, while waiting for a place in a reception facility. According to the official data, the average waiting period for the transfer of UAMs from RICs to accommodation facilities is as follow Kos – 6 months, Leros – 7 months, Lesvos – 6 months, Fylakio – 6 months, Samos – 6 months, Chios – 8 months.[33]

De facto detention in transit zones

A regime of de facto detention also applies for persons entering the Greek territory from the Athens International Airport – usually through a transit flight – without a valid entry authorisation. These persons receive an entry ban to the Greek territory and are then arrested and held in order to be returned on the next available flight. Persons temporarily held while waiting for their departure are not systematically recorded in a register.[34] In case the person expresses the intention to apply for asylum, then the person is detained at the holding facility of the Police Directorate of the Athens Airport, next to the airport building, and after the full registration the application is examined under the Border Procedure. As provided by the law, where no decision is taken within 28 days, the person is allowed to enter the Greek territory for the application to be examined according to the Regular Procedure.[35]

However, despite the fact that national legislation provides that rights and guarantees provided by national legislation inter alia on the detention of asylum seekers should also be enjoyed by applicants who submit an application in a transit zone or at an airport,[36] no detention decision is issued for those applicants who submit an application after entering the country from the Athens International Airport without a valid entry authorisation. These persons remain de facto detained at the Athens Airport Police Directorate for a period up to 28 days from the full registration of the application.

Detention in the case of alleged push backs

As mentioned in Access to the Territory, throughout 2019, cases of alleged pushbacks at the Greek-Turkish land border have continued to be systematically reported. As it emerges from these allegations, there is a pattern of de facto detention of third-country nationals entering the Evros land border before allegedly being pushed back to Turkey. In particular, as reported, newly arrived persons are arbitrarily arrested without being formally registered and then de facto detained in police stations close to the borders. The UN Working Group on Arbitrary Detention (UNWGAD) following its visit to Greece in December 2019 stated that: “Pushback practices are not permitted under Greek law and are contrary to the right to seek asylum. The Working Group is therefore of the view that detention for this purpose has no legal basis. The Working Group urges the Government to put an immediate end to pushbacks and to ensure that such practices, including any possible acts of violence or ill-treatment that has occurred during such incidents, are promptly and fully investigated.”[37]

In June 2019, GCR submitted a complaint to the Supreme Court Prosecutor concerning pushback incidents, mainly on asylum seekers from Turkey, in the region of Evros, which have been brought to its attention during the months of April – June 2019[38]. Moreover, in June 2019, GCR handled the submission of three criminal complaints of Turkish nationals, who were victims of pushback operations in the Evros region, before the Prosecutors office of Orestiada and Alexandroupoli, the examination of which is pending.



[1] Asylum Detention in IPA is regulated by Art 46 and 47 IPA.

[2] Article 46(1) L 4375/2016.

[3] Article 46 L 4375/2016.

[4] Article 46(2) L 4375/2016. As stated above, the IPA, in effect from 1/1/2020, maintains this provision, and adds the possibility for asylum seekers applying at liberty to be placed in detention, article 46 IPA.

[5]Article 46(2).

[6] Article 18(g) L 3907/2011, cited by Article 46(2)(b) and (e) L 4375/2016. This is also the case in IPA, see Art. 46(2-b) and 46(3-b).

[7]Article 18(g)(a)-(h) L 3907/2011.

[8] Article 3(7) Directive 2008/115/EC; see also mutandis mutandis CJEU, C-528/15, Al Chodor, 15 March 2017, para. 47, "Article 2 (n), in conjunction with Article 28 (2) of the Dublin III Regulation, has the meaning that it requires the Member States to lay down, by means of a binding provision of general application, the objective criteria on the basis of which it is assumed that there is a risk of absconding of the applicant being subjected to a transfer procedure. The absence of such a provision renders Article 28 (2) of that regulation inapplicable".

[9]  That is the Aliens Division Police Director of Attica or Thessaloniki in cases falling under the competence of the two General Police Directorates, or the relevant Police Director in other cases: Article 46(3) L 4375/2016.

[10]Article 46(3) L 4375/2016.

[11] Information provided by the Asylum Service, 17 February 2020.

[12] Article 46(2) L 4375/2016.

[13] Article 36(4) IPA.

[14] Administrative Court of Thessaloniki, Decision 72/2019.

[15] Ombudsman, Return of third-country nationals, Special Report 2018, available at: https://bit.ly/37jgpGz, 17.

[16] European Commission, Return Handbook, 27 September 2017, available at: http://bit.ly/2nITCQ, 78-79.

[17] CJEU, Case C-601/15 PPU J.N., Judgment of 15 February 2016, paras 65-67. See e.g. Council of State, Decisions 427/2009, 1127/2009 and 2414/2008, which highlight that a mere reference to a criminal conviction does not suffice for the determination of a threat to national security or public order.

[18] Ombudsman, Return of third-country nationals etc., idem.

[19] Administrative Court of Athens, Decision AP 528/2019.

[20] GCR, 2018 Detention Report, available at: https://bit.ly/2vrq and Ombudsman, Return of third-country nationals etc., idem.

[21] Directorate of the Hellenic Police no 1604/16/1195968/18-6-2016, “Διαχείριση παράτυπων αλλοδαπών στα Κέντρα Υποδοχής και Ταυτοποίησης, διαδικασίες Ασύλου, υλοποίηση Κοινής Δήλωσης ΕΕ-Τουρκίας της 18ης Μαρτίου 2016 (πραγματοποίηση επανεισδοχών στην Τουρκία)”, available in Greek at: http://bit.ly/2ngIEj6

[22] This is also the content of Art. 46(3-c) IPA.

[23]  UNHCR, “Recommendations by the Office of the United Nations High Commissioner for Refugees (UNHCR) concerning the execution of judgments by the European Court of Human Rights (ECtHR) in the cases of M.S.S. v. Belgium and Greece (Application No. 30696/09, Grand Chamber judgment of 21 January 2011) and of Rahimi v. Greece (Application No. 8687/08, Chamber judgment of 05 April 2011)”, 15 May 2019, page 4.

[24] Information provided by the Directorate of the Hellenic Police, 8 February 2020 .

[25]  Article 14 (2) 4375/2016. Τhe IPA in article 39 (4)(a) provides for a 5 day initial restriction of liberty, which can be extended for further 25 days.

[26] Ibid.

[27] Article 14(4) L 4375/2016 (article 39(4)(b) IPA).

[28] Article 14(2) L 4375/2016.

[29] Article 14 (7) L 4375/2016. See also The Greens/EFA, The EU-Turkey statement and the Greek hotspots: A failed European pilot project in refugee policy, June 2018, available at: https://bit.ly/2sJM2H4, 16.

[30] UNHCR, Explanatory Memorandum to UNHCR’s Submission to the Committee of Ministers of the Council of Europe on developments in the management of asylum and reception in Greece, May 2017, 10.

[31] UNHCR, “Recommendations by the Office of the United Nations High Commissioner for Refugees (UNHCR) concerning the execution of judgments by the European Court of Human Rights (ECtHR) in the cases of M.S.S. v. Belgium and Greece (Application No. 30696/09, Grand Chamber judgment of 21 January 2011) and of Rahimi v. Greece (Application No. 8687/08, Chamber judgment of 05 April 2011)”, 15 May 2019, page 4.

[32] Information provided by RIS, 6 February 2020.

[33] http://bit.ly/2ngIEj6

[34]  CPT, Report to the Greek Government on the visits to Greece carried out by CPT, CPT/Inf (2017) 25, 26 September 2017, available at: http://bit.ly/2Fktu5U, para 59.  

[35] Article 60(2) L 4375/2016 and Article 90(2) IPA.  

[36] Article 60(1) L 4375/2016 and Article 90(1) IPA.

[37] UN High Commissioner of Human Rights, “Working Group on Arbitrary Detention: Preliminary Findings from its visit to Greece (2 – 13 December 2019)”, available at:  https://bit.ly/37BM45Y

[38] GCR, “Complaint to the Supreme Court prosecutor on push-back incidents in the region of Evros during the months of April-June 2019”, available at:  https://bit.ly/322bxV3 .

 

Table of contents

  • Statistics
  • Overview of the legal framework
  • Overview of the main changes since the previous report update
  • Asylum Procedure
  • Reception Conditions
  • Detention of Asylum Seekers
  • Content of International Protection
  • ANNEX I – Transposition of the CEAS in national legislation