Judicial review of the detention order

Greece

Country Report: Judicial review of the detention order Last updated: 30/11/20

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Greek Council for Refugees Visit Website

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 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 46(5) L 4375/2016 reads as follows:

“The initial detention order and 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 case this is requested, the applicant or his/her legal representative must mandatorily be heard in court by the judge. This can also be ordered, in all cases, by the judge.”

The IPA also provides for an ex-officio judicial control of the detention decision of asylum seekers. [2]

In addition to concerns expressed in previous years as to the effectiveness of this procedure,[3] 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 just four cases where the ex officio review did not approve the detention measure imposed:

Ex officio review of detention by the Administrative Court of Athens: 2019

 

under asylum provisions

(Article 46 L 4375/2016)

under pre-removal provisions

(Article 30 L 3907/2011)

Detention orders transmitted

599

84

Approval of detention order

593

71

No approval of detention order

3

0

Abstention from decision*

3

13

Source: Administrative Court of Athens, Information provided on 26 February 2020. * “Abstention from decision” in L 4375/2016 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,[4] 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”.[5]

Over the years the ECtHR has found that the objections remedy is not accessible in practice.[6] That was also the case in 2019. 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.[7]

In another judgment issued in October 2019, the Court also found a violation of Art. 5(4) on the basis that 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.[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 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,[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 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. In a case supported by GCR, the administrative Court of Piraeus rejected the allegations with regards the detention conditions as “vague and inadmissible” of a person detained in a police station (Kaminia-Neo Faliro police station) for more than 3 months.[12]  

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.

Finally, as regards “protective custody” of unaccompanied children (see Detention of Vulnerable Applicants), 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.[13]

 


[1] Article 30(3) L 3907/2011.

[2]  Article 46(5-b) IPA.

[3]  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.

[4] Article 46(6) L 4375/2016, citing Article 76(3)-(4) L 3386/2005.

[5] UNWGAD, idem.

[6] ECtHR, J.R. and Others v. Greece, Application No 22696/16, Judgment of 25 January 2018, para 99;

[7] ECtHR, O.S.A. v. Greece, Application No 39065/16, Judgment of 21 March 2019.

[8] ECHR, Kaak v. Greece, Application No 34215/16, Judgment of 3 October 2019. 

[9] 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.

[10] 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.

[11] ECtHR, S.Z. v. Greece, Application No 66702/13, Judgment of 21 June 2018, para 72.

[12] Administrative Court of Piraeus. Decision No 56/2019. 

[13] ECtHR, H.A. v. Greece, Application No 19951/16, Judgment of 28 February 2019, para 212.

 

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