Greece - Administrative Court of First Instance of Kavala, Decision no. 407/2018, 17 December 2018
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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Duty of applicant
Description
The duty imposed on an applicant for international protection by Article. 4(1) of the Qualification Directive to submit as soon as possible all elements needed to substantiate the application for international protection. |
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Obligation/Duty to cooperate
Description
Obligations imposed byMember States upon applicants for asylum to cooperate with the competent authorities insofar as these obligations are necessary for the processing of the application. These may include obligations to: (a) report to the competent authorities or to appear before them in person; (b) to hand over documents in their possession relevant to the examination of the application, such as their passports; (c) to inform the competent authorities of their current place address; (d) to be personally searched and the items he/she carries with him/her; (e) to have ones photograph taken; and (f) to have ones oral statements recorded provided. Alternatively the duty of the decision-maker to cooperate with the applicant in carrying out its assessment of facts and circumstances |
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Refugee Status
Description
The recognition by a Member State of a third-country national or stateless person as a refugee. |
Headnote:
The continuation of detention beyond the period of 90 days, while the appeal against the decision rejecting the asylum application was still pending, is a disproportionate measure of deprivation of liberty for the applicant. Alternative measures must be considered.
Facts:
The applicant was arrested in October 2018 in Kavala, Greece, for illegal entry and stay. He was then placed in detention until his return to the country of origin, Pakistan, on the grounds that there was a risk of absconding. He did not have any identification documents.
While he was under detention, he applied for international protection. The Regional Asylum Office considered that the applicant only submitted his application for asylum in order to delay or prevent the execution of his return and issued an opinion in favor of the continuation of his detention, adding 45 days. The application for asylum was rejected and the applicant appealed in November 2018. His detention was extended again in December 2018 for 45 days and that decision is being challenged by the applicant in the present case.
Decision & reasoning:
The Court took into account the existence of a pending international protection procedure and that the detention would not serve any of the purposes provided in the law. Moreover, it argued that the continuation of the detention imposed would be contrary to the principle of proportionality of measures imposing deprivation of liberty, according to Articles 5 of the ECHR and 5 (3) of the Greek Constitution. Finally, the delay in issuing the decision on the appeal does not justify the continuation of the detention since it cannot be attributed to the applicant but to the Administration.
The Court held that, after the period of 90 days under detention, the applicant should be released until the day of the decision finalising the asylum procedure, under the condition that he appears every Monday before the competent authorities.
Outcome:
Appealed granted. The detention measure was replaced by compulsory weekly appearance at the local police station.
Observations/comments:
This summary was completed by Danai Spentzou, Human Rights LLM student at Queen Mary University of London.
Relevant International and European Legislation:
Cited National Legislation:
Cited Cases:
| Cited Cases |
| Greece - Administrative Court of Komotini, Decision no 916/2018, |