Grounds for detention

Greece

Country Report: Grounds for detention Last updated: 10/06/21

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Greek Council for Refugees Visit Website

Asylum detention

 

According to Article 46 IPA, 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.[1] However as mentioned above IPA foresees the possibility to detain asylum seekers who have already applied for asylum while at liberty.

Moreover, an asylum seeker may 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. In this case the asylum seeker may be kept in detention for one of the following 5 grounds[2]:

  • in order to determine his or her identity or nationality;
  • 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;
  • 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;
  • when he or she constitutes a danger for national security or public order;
  • 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.[3] 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:[4]

  • 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“.[5]

Article 46(2)(3) IPA 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.

As noted above, a detention order under IPA is issued following prior information by the Head of the Asylum Service. However, the final decision on the detention lies with the Police. The Asylum Service made 1,091 information notes in 2020, of which 836 recommended the prolongation of detention and 235 advised against detention. Also, 20 recommendations for the continuation of detention were revoked[6].

Detention of asylum seekers applying at liberty

The IPA 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).

Up until the end of 2020, 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 to 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 Piraeus ordered the release from detention of a man from Syria, who was detained for the purpose of his transfer back to Chios on the basis that, inter alia, he is an asylum applicant and could not be detained for return purposes.[7]

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.[8] This continues to be the case. The Return Directive does not cover detention on public order grounds,[9] 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.[10] 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.[11] In a case supported by GCR in 2020, the Administrative Court of Athens accepted objections against the detention of a citizen of Iran who was administratively detained in Agios Panteleiomas Police Station (Athens), on the grounds that, inter alia, he was accused with criminal charges related to verbal abuse after he had been arrested. The Court declared, inter alia, that there was no official conviction from the competent criminal court and ordered his release from detention.[12]

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 under Article 46(1) IPA. For instance, in a case supported by GCR, a woman, asylum seeker, originating from Turkey remained administratively detained for reasons of public order related to the fact that she entered illegally in the country. The Administrative Court of Athens accepted objections against the detention of the applicant, claiming that the sole fact of the irregular entrance in the country cannot base detention on public order grounds[13].

Moreover, a further consequence of the events unfolded after 28 February 2020, was the decision by certain prosecutors to criminally charge migrants with illegal entry into the country according to the provisions of Law 3386/2005. More precisely, between 28 February and 14 March 2020, the single-member Misdemeanours Court in Orestiada sentenced 103 persons to imprisonment under the above-mentioned regulation. The CPT expressed serious misgivings about the way in which these cases were  conducted and asked the Greek authorities to ensure that all Public Prosecutors and Misdemeanour Courts are fully cognisant of Greece’s international legal obligations.[14]

Furthermore, 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.[15]

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.’”[16]

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  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”. 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 IPA 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 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”.[17]

De facto detention in RIC

Newly arrived persons transferred to a RIC are subject to a 5-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.[18] This restriction of freedom entails “the prohibition to leave the Centre and the obligation to remain in it.”[19] 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 by Article 39 (4) L 4636/2019, 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 5-day period.[20] Furthermore, the initial measure is imposed automatically, as the law does not foresee an obligation to carry out an individual assessment. 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.

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,[21] 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”[22]. As of 31 December 2020, a number of 259 newly arrived persons remained in Fylakio RIC, with a nominal capacity of 282 persons under a de facto detention regime.[23]

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.[24] 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.[25]

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,[26] 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 2020, 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. CPT’s delegation during the 2020 visit in Greece received consistent and credible allegations obtained through individual interviews in different places of detention of foreign nationals being detained, having their belongings confiscated and subsequently being pushed back across the Evros River border to Turkey. A  few  of  the  persons  met  during  the  March  2020  visit  alleged  that  they  had  initially  been detained  with  other  migrants,  including  families,  who  had  subsequently  been  sent  back  across  the river to Turkey. The  evidence  supporting  the  case  that  migrants  are  pushed  back  across  the  Evros River  to Turkey  after  having  been  detained  for  a  number  of  hours,  without  benefiting  from  any  of  the fundamental guarantees, by Greek officers operating in an official capacity is credible[27].

Similar allegations were included in a report published in March 2020 claiming that the Greek government is detaining migrants incommunicado at a secret extrajudicial location before expelling them to Turkey without due process.[28] In June 2020, UNHCR urged Greece to investigate multiple reports of pushbacks by Greek authorities at the country’s sea and land borders, possibly returning migrants and asylum seekers to Turkey after they had reached Greek territory or territorial waters.[29] Following numerous relevant reports, Greek Civil society organizations submitted a detailed report on the practice of Pushbacks in Greece to the UN Special Rapporteur.[30]

 Detention of recognized refugees

Despite the fact that detention of recognized refugees is nowhere prescribed within the relevant legislation, the authorities systematically detain beneficiaries of international protection on public order grounds. More precisely, the Police asks from the Asylum Service to revoke the status of international protection provided to persons facing criminal charges, regardless the nature and the stage of the attributed crime. Thus, recognized refugees and beneficiaries of subsidiary protection remain arbitrarily detained until the Asylum Service finally replies to the Police if there are grounds to examine the revocation of the status of international protection previously provided to them.

In a case supported by GCR, the Administrative Court of Piraeus accepted objections against the detention of a recognized refugee claiming that since there is no final judgment of the Asylum Service, which by law remains the responsible authority, the person is still enjoying the rights deriving from his refugee status.[31] In another case supported by GCR, the same Court ruled that until there is a final decision regarding the revocation of the person’s protection status he cannot be removed from the country. Moreover, the Court noted that it should also be considered that the competent criminal court decided to suspend the criminal penalty.[32] Further on, in another decision the Administrative Court of Piraeus asserted that refugees are fully protected from removal, which can be permitted only under certain provision prescribed by the law.[33]

In a Press Release published in December 2020, GCR asked the authorities to end the illegal practice of administrative detention of beneficiaries of international protection and highlighted that an appeal was submitted in front of the ECtHR regarding a case of a recognized refugee who remained detained for a period of four months according to the aforementioned practice.[34]

 

 

[1] Article 46(1) IPA

[2] Article 46(3) IPA

[3]  Article 18(g) L 3907/2011, cited by Art. 46(2-b) and 46(3-b) IPA

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

[5]  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”.

[6] Information provided by the Asylum Service, 31 March 2021.

[7] Administrative Court of Piraeus, Decision 454/2020.

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

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

[10]  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.

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

[12]  Administrative Court of Athens, Decision AP 418/2020

[13]  Administrative Court of Athens, Decision AP 1294/2020

[14] Council of Europe’s anti-torture Committee calls on Greece to reform its immigration detention system and stop pushbacks, available at: https://bit.ly/2Slm255

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

[16] 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.

[17] 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.

[18]  Article 39 (4)(a) IPA provides for a 5 day initial restriction of liberty, which can be extended for further 25 days.

[19] Ibid.

[20] Article 39(4)(b) L 4636/2019

[21]  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.

[22]  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.

[23] Information provided by RIS, 26 February 2021.

[24] 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.

[25]  Article 90(2) L 4636/2019

[26] Article 90(1) L 4636/2019

[27] Council of Europe’s anti-torture Committee calls on Greece to reform its immigration detention system and stop pushbacks, 19 November 2020, available at: https://bit.ly/3vDEEMa.

[28]   NYT, ‘We Are Like Animals’: Inside Greece’s Secret Site for Migrants, 10 March 2020, available at:  https://nyti.ms/3nU34yr.

[29] UNHCR calls on Greece to investigate pushbacks at sea and land borders with Turkey, 12 June 2020, available at: https://bit.ly/3eSwfxC.

[30]  Arsis, Greek Council For Refugees, Hellenic League For Human Rights, Hias Greece, Human Rights 360, Refugee Support Aegean, Joint Statement on push backs practises in Greece, 1 February 2021, https://bit.ly/3cZZ23v.

[31]  Administrative Court of Piraeus Decision ΑΡ488/2020

[32] Administrative Court of Piraeus Decision ΑΡ506/2020

[33]  Administrative Court of Piraeus Decision ΑΡ628/2020

[34] GCR, Να τερματιστεί άμεσα η παράνομη πρακτική της κράτησης αναγνωρισμένων προσφύγων , available in Greek at: https://bit.ly/3t0CVj0

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