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 extension of 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 3 March 2022.

* “Abstention from decision” in the Asylum Code (art. 50 par. 5) 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,^[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 ‘gaps in the provision of interpretation and legal aid, resulting in the lack of access to judicial remedies against the detention decisions’.^[4]

Over the years the ECtHR has found that the objections remedy is not accessible in practice.^[5] 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 connection with this, the Court noted that the Greek government had also not specified which refugee-assisting NGOs were available.^[6]

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.^[7]

Moreover, the ECtHR has found on various occasions the objections procedure to be an ineffective remedy, contrary to Article 5(4) ECHR,^[8] 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. 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,^[9] 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.^[10] 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.

For example, despite the halt on removals to Türkiye since March 2020, there have been rulings of the Administrative Courts concerning pre-removal detention which made no assessment of the clear obstacles to a reasonable prospect of the individuals’ removal to Türkiye.[11] However, during 2022 in several decisions of Administrative Courts it was ruled that there was no prospect of removal to Türkiye considering the suspension of returns as well as the individual situation of the detainees, thereby ordering their release.[12]

The lack of proper examination, or disregard, by courts of applicants’ critical submissions regarding the lawfulness of their detention includes also cases where courts: (i) have disregarded allegations that detention has been ordered on grounds not set out in national legislation[13] (ii) have refrained from terminating pre-removal detention of bona fide asylum seekers[14] (iii) have failed to assess the impact of 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.[15] (iv) ineffectively assessed allegations on detention conditions. As a rule, courts dismiss them as unsubstantiated[16] and/or solely examine detention conditions based on information provided by the Hellenic Police.[17]

In 2022, only 2,803 objections against detention were submitted to the competent Administrative Courts across the country compared to a total of 12,020 detention orders issued by national authorities.[18] This illustrates the difficult access to an effective review of detention orders.

^[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, idem.

^[5] 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.

^[6]  ECtHR, O.S.A. v. Greece, Application No 39065/16, Judgment of 21 March 2019, available in Greek at: https://bit.ly/3WwhOEU.

^[7] ECHR, Kaak v. Greece, Application No 34215/16, Judgment of 3 October 2019, available in Greek at: https://bit.ly/43bEmgD.

^[8] 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/45x94m8.

^[9]  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.

^[10]  ECtHR, S.Z. v. Greece, Application No 66702/13, Judgment of 21 June 2018, , available at: https://bit.ly/45tcBBL, para 72.

^[11]  Administrative Court of Corinth, Decision Π4252/2022, 16 November 2022; 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’, Administrative Court of Athens, Decision AP727/2022, 10 May 2022.

^[12] Administrative Court of Corinth Decisions Π2424/24-06-2022, Π2806/ 19-07- 2022, Π3179/21-09-2022, Π3166/19-09-2022, Π2814/20-07-2022, Π4118/27-10-2022, Π4123/31-10-2022, Π4194/09-11-2022, Π3633/17-10-2022, Π4248/15-11-2022 Administrative Court of Athens Decision ΑΡ831/2022, Administrative Court of Kavala Decision ΑΡ779/2022, Administrative Court of Rhodes Decisions ΑΡ515/2021, ΑΡ514/2021, ΑΡ450/2021, ΑΡ136/2021, ΑΡ122/2021, ΑΡ96/2022, ΑΡ97/2022, ΑΡ98/2022, ΑΡ99/2022.

^[13] Administrative Court of Corinth, Decision Π3577/2022, 26 September 2022.

^[14] Administrative Court of Athens, Decision AP410/2022, 14 March 2022.

^[15] Administrative Court of Corinth, Decision Π2867/2022, 12 August 2022.

^[16] Administrative Court of Athens, Decision AP1099/2022, 13 July 2022; Decision AP1985/2021; Decision AP1436/2021, 30 July 2021; Decision AP1043/2021, 31 May 2021.

^[17] Administrative Court of Corinth, Decision Π2137/2022, 27 May 2022.

^[18] Source: Administrative Court of Athens, Information provided on 3 March 2022.