Judicial review of the detention order

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Automatic judicial review

L 4375/2016 introduced a procedure for automatic judicial review of the decisions ordering or prolonging the detention of an asylum seeker. The Asylum Code also provides for an ex officio judicial control of the detention decision of asylum seekers. The procedure is largely based on the procedure already in place for the automatic judicial review of the decisions extending the detention of third-country nationals in view of return under L 3907/2011.[1]

Article 50(5) Asylum Code reads as follows:

‘In case of prolongation of detention, the order for the prolongation of detention shall be transmitted to the President of the Administrative Court of First Instance, or the judge appointed thereby, who is territorially competent for the applicant’s place of detention and who decides on the legality of the detention measure and issues immediately his decision, in a brief record.’

In addition to concerns expressed in previous years as to the effectiveness of this procedure,[2] statistics on the outcome of ex officio judicial scrutiny confirm that the procedure is highly problematic and illustrates the rudimentary and ineffective way in which this judicial review takes place.

Source: Administrative Court of Athens, Information provided on 12 February 2024.

* “Abstention from decision” in the Asylum Code (art. 50 par. 5) concerns detention orders transmitted after the expiry of the time limit. For L 3907/2011 cases, according to its interpretation of the law, the Court examines the lawfulness of detention only if detention is prolonged beyond 6 months. Therefore, if detention is prolonged after an initial 3 months up to 6 months, the Court abstains from issuing a decision.

Objections against detention

Apart from the automatic judicial review procedure, asylum seekers may challenge detention through “objections against detention” before the Administrative Court,[3] which is the only legal remedy provided by national legislation to this end. Objections against detention are not examined by a court composition but solely by the President of the Administrative Court, whose decision is non-appealable.

However, in practice, the ability for detained persons to challenge their detention is severely restricted due to ongoing ‘gaps in the provision of interpretation and legal aid, resulting in the lack of access to judicial remedies against the detention decisions’.[4]  Firstly, and as a rule as part of an ongoing practice of the Greek authorities, persons in administrative detention are not informed on the grounds of their detention and of the possibility to lodge Objections against them. Detention orders and other relevant documents are communicated to detainees in Greek and are not translated or explained in a language they understand. Moreover, even in case where detainees are actually provided with an “information brochure” in their language, said “information brochure” fails to ensure the provision of information in a simple and accessible manner. Namely,  this is the same document which the European Court of Human Rights  has already deemed as not capable of providing information in a simple and accessible language, so as for detainees to be reasonably expected to understand the factual and legal grounds of their detention and avail themselves of the legal remedies provided by Greek Law.[5] Secondly, Greece has still not set up a free legal assistance scheme for review of detention orders before Administrative Courts and in practice detainees cannot effectively lodge Objections against their detention.

Over the years the ECtHR has found that the objections remedy is not accessible in practice.[6]

In February 2019, the Court found a violation of Article 5(4) ECHR, emphasising that the detention orders were only written in Greek and included general and vague references regarding the legal avenues available to the applicants to challenge their detention. Furthermore, the applicants were not in a position to understand the legal aspects of their case and they did not appear to have access to lawyers on the island where he was detained. In connection with this, the Court noted that the Greek government had also not specified which refugee-assisting NGOs were available.[7]

In another judgment issued in October 2019, the Court also found a violation of Art. 5(4) as the decision, which indicated the possibility of lodging an appeal, was written in Greek; It was not certain that the applicants, who had no legal assistance in either Vial or the former Souda camps in Chios, had sufficient legal knowledge to understand the content of the information brochure distributed by the authorities, and especially the material relating to the various remedies available under domestic law. The Court also noted that the information brochure in question referred in a general way to an “administrative court”, without specifying which one. However, there was no administrative court on the island of Chios, where the applicants were detained, and the nearest one was on the island of Lesvos. Even assuming that the remedies were effective, the Court did not see how the applicants could have exercised them. Having regard also to the findings of other international bodies, the Court considered that, in the circumstances of the case, the remedies in question had not been accessible to the applicants.[8]

Moreover, the ECtHR has found on various occasions the objections procedure to be an ineffective remedy, contrary to Article 5(4) ECHR,[9] as the lawfulness of detention, including detention conditions, was not examined. In order to bring national law in line with ECHR standards, legislation was amended in 2010. Notwhithstanding, the ECtHR subsequently found in a number of cases that the lawfulness of applicants’ detention had not been examined in a manner equivalent to the standards required by Article 5(4) ECHR,[10] and “the applicant did not have the benefit of an examination of the lawfulness of his detention to an extent sufficient to reflect the possibilities offered by the amended version” of the law.[11] This case law of the ECtHR illustrates that the amendment of the national legislation cannot itself guarantee an effective legal remedy in order to challenge immigration detention, including the detention of asylum seekers.

Effectiveness of the judicial review in Objection against detention

Based on the cases supported by GCR, it seems that the objections procedure may be marred by a lack of legal security and predictability, which is aggravated by the fact that no appeal stage is provided in order to harmonise and/or correct the decisions of the Administrative Courts. GCR has supported a number of cases where the relevant Administrative Courts’ decisions were contradictory, even though the facts were substantially the same.

This is for example the case of persons detained despite the halt on removals to Türkiye since March 2020. In a number of 2023 rulings on Objections against detention, competent Courts made no assessment of the impact of the suspension of removal on the lawfulness of detention and, instead, sometimes held that “it is not certain that the halt in removals will have a permanent character”.[12] In other cases, also rulled upon in 2023, competent Courts expressly acknowledged that the suspension of readmissions to Türkiye made the continuation of the detention measure unlawful.[13]

Moreover, administrative Courts’ lack of a proper examination, or disregard, of applicants’ critical submissions regarding the lawfulness of their detention includes also cases where courts:

1. have disregarded allegations that detention has been ordered on grounds not set out in national legislation[14]

1. have refrained from terminating pre-removal detention of bona fide asylum seekers[15]

1. have failed to assess the impact of the impossibility of removal in cases of asylum seekers, whilst citing the C-601/15 PPU J.N. ruling of the CJEU to state that detention of asylum seekers is imposed to ensure the effectiveness of the removal procedure.[16]
2. ineffectively assessed allegations on detention conditions. As a rule, courts dismiss them as unsubstantiated[17] and/or solely examine detention conditions based on information provided by the Hellenic Police.

In 2023, only 5,001 objections against detention were submitted to the competent Administrative Courts across the country compared to a total of 20,540 detention orders issued by national authorities.[18] This illustrates the fact that, in practice, a very small number of persons in detention do have access to the legal remedy provided by national legislation against detention.

[1] Article 30(3) L 3907/2011.

[2] UN Human Rights Council, Report of the Special Rapporteur on the human rights of migrants, Addendum: Mission to Greece, 18 April 2013, A/HRC/23/46/Add.4, available at: http://bit.ly/2kZ7D8R, para 57.

[3] Article 50(6) Asylum Code, citing Article 76(3)-(4) L 3386/2005.

[4] UNWGAD, Working Group on Arbitrary Detention: Preliminary Findings from its visit to Greece (2 – 13 December 2019), 13 December 2019, available at: https://tinyurl.com/2wdp5dk6.

[5] J.R. and other v. Greece, op.cit., paras. 123-124; O.S.A and other v. Greece, op.cit, para. 54 and Kaak and other v. Greece, op. cit. para. 123.

[6] ECtHR, J.R. and Others v. Greece, Application No 22696/16, Judgment of 25 January 2018, available in Greek at: https://bit.ly/3MAFjYN, para 99.

[7] ECtHR, O.S.A. v. Greece, Application No 39065/16, Judgment of 21 March 2019, available in Greek at: https://bit.ly/3WwhOEU.

[8] ECHR, Kaak v. Greece, Application No 34215/16, Judgment of 3 October 2019, available in Greek at: https://bit.ly/43bEmgD.

[9] See e.g., ECtHR, Rahimi v. Greece Application No 8687/08, Judgment of 5 April 2011, available in Greek at: https://bit.ly/3IDXE69; R.U. v. Greece Application No 2237/08, Judgment of 7 June 2011, available at: https://bit.ly/3MA2QsP; C.D. v. Greece, Application No 33468/10, Judgment of 19 March 2014, available at: https://bit.ly/3RH72us.

[10] ECtHR, R.T. v. Greece, Application no 5124/11, Judgment of 11 February 2016, available in Greek at: https://bit.ly/3qdUKhU; Mahammad and others v. Greece, Application No 48352/12, 15 January 2015, available in Greek at: https://bit.ly/437MYVF; MD v. Greece, Application No 60622/11, Judgment of 13 November 2014, available in Greek at: https://bit.ly/3OF4Xyd; Housein v. Greece, Application No 71825/11, Judgment of 24 October 2013, available in Greek at: https://bit.ly/3OFLj5d. In this last case, the Court found a violation of Article 3 combined with Article 13, due to lack of an effective remedy in the Greek context in order to control detention conditions.

[11] ECtHR, S.Z. v. Greece, Application No 66702/13, Judgment of 21 June 2018, available at: https://bit.ly/45tcBBL, para 72.

[12] Administrative Court of Komotini, Decision ΑΡ115/2023, 10 March 2023; rejecting the remedy by stating the ‘it is not proven that the suspension (of removals) will continue up until the maximum detention time limit provided by Art. 30 L. 3907/2011 by which the Authorities must carry out the removal’.

[13] Administrative Court of Kavala Decisions ΑΡ728/24-07-2023, ΑΡ1098/28-11-2023, ΑΡ504/12-5-2023, Administrative Court of Komotini, Decision AP309/16-6-2023.

[14] Administrative Court of Athens, Decision ΑΡ1664/2023, 16 June 2023, Administrative Court of Athens, Decision ΑΡ709/2023, 14 March 2023.

[15] Administrative Court of Athens, Decision AP2818/2023, 2 November 2023.

[16] Administrative Court of Athens, Decision ΑΡ1645/2023, 9 June 2023.

[17] Administrative Court of Athens, Decision AP1893/2022, 17 July 2023.

[18] Source: Administrative Court of Athens, Information provided on 12 February 2024.