Hellenic Republic - Administrative Court of First Instance of Mytilene, 30 October 2017, AP219/2017
Keywords:
| Keywords |
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Detention
Description
"Restriction on freedom of movement through confinement that is ordered by an administrative or judicial authority(ies) in order that another procedure may be implemented. In an EU asylum context, this means confinement of an asylum seeker by a Member State within a particular place, where the applicant is deprived of his or her freedom of movement. This may occur during any stage of or throughout the asylum process, from the time an initial application is made up to the point of removal of an unsuccessful asylum seeker. In an EU Return context, Member States may only detain or keep in a detention facility a third-country national who is the subject of return procedures in order to prepare the return and/or carry out the removal process, in particular when: (a) there is a risk of absconding; or (b) the third-country national concerned avoids or hampers the preparation of return or the removal process. Any detention shall be for as short a period as possible and only maintained as long as removal arrangements are in progress and executed with due diligence." |
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Return
Description
"In the context of the Return Directive (2008/115/EC), the process of going back - whether in voluntary compliance with an obligation to return, or enforced - to: - one's country of origin; or - a country of transit in accordance with EU or bilateral readmission agreements or other arrangements; or - another third country, to which the third-country national concerned voluntarily decides to return and in which he/she will be accepted. There are subcategories of return which can describe the way the return is implemented, e.g. voluntary, forced, assisted and spontaneous return; as well as sub-categories which describe who is participating in the return, e.g. repatriation (for refugees)." |
Headnote:
Detention of asylum seekers should only be permitted under the conditions prescribed by the law. The detention and deportation orders should always provide sufficient legal justification including the objective facts leading to the administrative authorities’ decision.
Facts:
The Applicant is a Syrian national who entered Greece irregularly through Lesvos and was detained until the completion of admission and identification procedures. He subsequently applied for asylum but a deportation order was issued according to which the Applicant would remain in detention until readmission to Turkey due to risk of absconding. Following the recommendation of Lesvos’ Regional Asylum Office that the applicant’s detention should continue as he is presumed to be submitting the application for international protection merely in order to delay or frustrate the enforcement of the return decision, a second decision was issued ordering the suspension of the deportation and the detention of the Applicant.
The Applicant challenged his decision claiming that both the recommendation and the subsequent decision lack proper justification, that the conditions of detention violate Article 3 ECHR, that he is facing health problems, that there is no risk of absconding and that his detention is not proportionate.
Decision & reasoning:
The Court held that the Applicant’s detention is unlawful and that he be released under the restrictive condition of not leaving Lesvos. The Court explained that the Authorities’ decision, under which the continuation of the Applicant’s detention was decided, did not meet the legal criteria for the detention of asylum seekers and had no sufficient legal reasoning due to the fact that neither document mentioned the objective criteria that led to the formation of the administrative authorities’ belief.
Outcome:
Application successful, detainee released on the condition that he does not leave the island of Lesvos.
Subsequent proceedings:
This case was handed down alongside two other judgments (AP217/2017 and 218/2017) which reiterated the reasoning given in this judgment.
Observations/comments:
This case summary was written by Odyssefs Platonas, LLM student at Queen Mary University.
Relevant International and European Legislation:
Cited National Legislation:
| Cited National Legislation |
| 46 |
| Greece - N. 4375/2016 (Official Gazette issue A’51) > Articles 34 |
Other sources:
28704/11.10.2017 First Reception Centre – Detention decision
6634/1/71/5017-ρζ/13.10.2017Lesvos Police Directorate – Deportation order
28882/19.10.2017 Regional Asylum Office Lesvos – Recommendation for the continuance of detention
6634/1/71/5017- ρϟ ρζ/21.10.2017 Lesvos Police Directorate– Suspension of deportation order continuance of detention