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. IPA 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 extension of detention of third-country nationals in view of return under L 3907/2011.
Article 46(5-b) IPA 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, statistics on the outcome of ex officio judicial scrutiny confirm that the procedure is highly problematic and illustrate the rudimentary and ineffective way in which this judicial review takes place. According to the available data regarding detention orders for asylum seekers examined by the Administrative Court of Athens, there have been no cases where the ex officio review did not approve the detention measure imposed:
|Ex officio review of detention by the Administrative Court of Athens: 2020|
|under asylum provisions
(Article 46 IPA)
|under pre-removal provisions
(Article 30 L 3907/2011)
|Detention orders transmitted||839||7|
|Approval of detention order||839||7|
|No approval of detention order||0||0|
|Abstention from decision*||0||0|
Source: Administrative Court of Athens, Information provided on 1 March 2021. * “Abstention from decision” in IPA (art. 46 par. 5b) cases 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, 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 “gaps in the provision of interpretation and legal aid, resulting in the lack of access to judicial remedies against the detention decisions”.
Over the years the ECtHR has found that the objections remedy is not accessible in practice. 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. In this connection, the Court noted that the Greek government had also not specified which refugee-assisting NGOs were available.
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 camp, 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 Mytilene. 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.
Moreover, the ECtHR has found on various occasions the objections procedure to be an ineffective remedy, contrary to Article 5(4) ECHR, as the lawfulness per se of the detention, including detention conditions, was not examined in that framework. In order to bring national law in line with ECHR standards, legislation was amended in 2010. However, the ECtHR has found in a number of cases that, despite the amendment of the Greek law, the lawfulness of applicants’ detention had not been examined in a manner equivalent to the standards required by Article 5(4) ECHR, 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. This case law of the ECtHR illustrates that the amendment of national legislation cannot itself guarantee an effective legal remedy in order to challenge immigration detention, including the detention of asylum seekers.
As far as the judicial review of detention conditions is concerned, based on the cases supported by GCR, it seems that courts tend either not to take complaints into consideration or to reject them as unfounded, even against the backdrop of numerous reports on substandard conditions of detention in Greece, brought to their attention. This is even the case of persons who are detained for prolonged periods in police station or totally inadequate police facilities.
Moreover, based on the cases supported by GCR, it also seems that the objections procedure may also 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.
During the period of effect of the March 2020 suspension of access to the asylum procedure, domestic case law made a highly objectionable interpretation of the legal status of the decree and its effect on Greece’s obligations to guarantee access to asylum under EU and international law. The Administrative Court of Athens did not examine whether the deprivation of liberty of the applicants satisfied the criteria and conditions set by the IPA. It erroneously failed to engage with the applicants’ status as “asylum seekers” and thereby examined the lawfulness of the detention orders solely through the prism of return legislation, despite acknowledging that they had expressed the intention to seek international protection; an act triggering the applicability of their right to remain and related entitlements.
Despite constraints to carrying out readmissions to Turkey since March 2020, the rulings of the Administrative Court of Athens concerning pre-removal detention during the period of effect of the suspension of the asylum procedure made no assessment of clear obstacles to a reasonable prospect of the individuals’ removal to Turkey. Failure of Administrative Courts to engage with the reasonable prospect test is reflected in subsequent case law dismissing objections against detention, even in decisions accepting objections. In an example of cases where courts have engaged with the reasonable prospect of removal, on the basis of explicit evidence of the suspension of readmissions to Turkey, the Administrative Court of Mytilene nevertheless upheld detention on 5 June 2020 on the ground that “despite the suspension of readmissions by the Turkish authorities, such a temporary suspension may be lifted at any time in the near future”.
In addition, the case law of Administrative Courts in 2020 has failed to take into account potent risks to the well-being of individuals on account of the COVID-19 pandemic. Courts have dismissed alleged risks of exposure to inappropriate detention conditions and of contracting COVID-19 in detention as unsubstantiated, without any assessment whatsoever of the conditions prevailing in pre-removal centres and their preparedness to prevent the spread of the COVID-19 pandemic. In other cases, courts have entirely disregarded the appellant’s submissions relating to COVID-19 risks in detention.
Finally, as regards “protective custody” of unaccompanied children the ECtHR found in February 2019 that the objections procedure was inaccessible since the applicants were not officially classified as detainees, and since they would not be able to seize the Administrative Court without a legal representative, which is a legal situation that unaccompanied minors continue to experience due to the lack of any legal representative.
 Article 30(3) L 3907/2011.
 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.
 Article 46(6) IPA, citing Article 76(3)-(4) L 3386/2005.
 UNWGAD, idem.
 ECtHR, J.R. and Others v. Greece, Application No 22696/16, Judgment of 25 January 2018, para 99;
 ECtHR, O.S.A. v. Greece, Application No 39065/16, Judgment of 21 March 2019.
 ECHR, Kaak v. Greece, Application No 34215/16, Judgment of 3 October 2019.
 See e.g. ECtHR, Rahimi v. Greece Application No 8687/08, Judgment of 5 April 2011; R.U. v. Greece Application No 2237/08, Judgment of 7 June 2011; C.D. v. Greece, Application No 33468/10, Judgment of 19 March 2014.
 ECtHR, R.T. v. Greece, Application no 5124/11, Judgment of 11 February 2016; Mahammad and others v. Greece, Application No 48352/12, January 15 January 2015; MD v. Greece, Application No 60622/11, Judgment of 13 November 2014; Housein v. Greece, Application No 71825/11, Judgment of 24 October 2013. In the case F.H. v. Greece, Application No 78456/11, Judgment of 31 July 2014, 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.
 ECtHR, S.Z. v. Greece, Application No 66702/13, Judgment of 21 June 2018, para 72.
 RSA, Rights denied during Greek asylum procedure suspension, April 2020, 6, available at: https://bit.ly/2IUswn7. See Administrative Court of Athens, Decisions 358/2020, 359/2020 and 360/2020, 7 April 2020.
 Administrative Court of Athens, Decisions 356/2020 and 357/2020, 3 April 2020.
 Administrative Court of Athens, Decisions 356/2020 and 357/2020, 3 April 2020; Decisions 358/2020, 359/2020 and 360/2020, 7 April 2020.
 Administrative Court of Athens, Decision 867/2020, 16 July 2020.
 Administrative Court of Mytilene, Decision AP73/2020, 20 March 2020.
 Administrative Court of Mytilene, Decision AP117/2020, 5 June 2020, para 4.
 Administrative Court of Athens, Decisions 358/2020, 359/2020 and 360/2020, 7 April 2020, para 4; Decision 867/2020, 16 July 2020, para 5; Administrative Court of Rhodes, Decision AP464/2020, 17 July 2020, para 4(c).
 Administrative Court of Mytilene, Decision AP117/2020, 5 June 2020, para 4.
 ECtHR, H.A. v. Greece, Application No 19951/16, Judgment of 28 February 2019, para 212.