A third-country national who lodges an application for international protection while in detention remains in detention under 3 grounds:1
- To determine his or her identity or nationality;
- Where he or she presents a threat to national security or public order; or
- Where detention is deemed necessary for a rapid and complete examination of the application.
In such cases, detention may only be applied exceptionally and where alternative measures may not be applied effectively.2 Article 12 (6) PD 113/2013 provides that the possible lack of appropriate spaces and difficulties in ensuring decent living conditions of the detainees shall be also considered for the imposition or prolongation of detention.
Under a provision of the New Procedure,3 not included in the Old Procedure, an asylum seeker may be placed in detention where he or she presents a threat to national security or public order. Even if this provision has been used by the Police in order to put in detention a person that has already applied for asylum (at liberty), such an interpretation of the law is questionable.4
It need be noted that the provisions of Article 13(2)(c) PD 114/2010 and Article 12(2)(c) PD 113/2013 are not in line with Article 8(3) of the recast Reception Conditions Directive, as the rapid and effective examination of the asylum application per se does not figure among the permissible grounds for detention.5
Both PD 114/2010 and PD 113/2013 mostly limit detention to persons who submit applications for international protection while already in pre-removal detention. However, due to the various obstacles to access to the asylum procedure (see section on Registration above), persons in need of protection are likely to be arrested before successfully lodging an application. Therefore the submission of applications from detention may be their only option. For example, in the pre-removal centre of Fylakio, there have been cases of asylum seekers who had submitted an application with the Regional Asylum Office (RAO) of Northern Evros but were only registered after a 3-month stay in the pre-removal centre.
The detention order is issued by the respective Police Director or the competent Aliens Division Police Director in cases falling under the competence of the General Police Directorates of Attica and Thessaloniki. The order must include a complete and comprehensive reasoning.6 Under the “identity or nationality” or the “rapid and complete examination” grounds, the detention order is issued following a recommendation by the Head of the asylum examination authority (See General Overview above).7 In “threat to public order” cases, the Head of the competent RAO or the Director of the Appeals Authority is informed and has to take the necessary measures to ensure the prioritised examination of the application or appeal.8 However, the final decision on the detention lies with the Hellenic Police authorities.
The Asylum Service claims that, if it proposes the continuation of detention of an asylum applicant, it follows-up on those cases closely and in the event the reasons for which it proposed the continuation of the detention are no longer valid, it revokes its initial proposal. However, an asylum applicant who is detained may be released by the Hellenic Police authorities without any relevant recommendation on the part of the Asylum Service or even if the Asylum Service has previously recommended the continuation of his or her detention, given that the Hellenic Police is the competent authority to decide upon detention of an asylum applicant. GCR regrets that the competent asylum authorities do not make sufficient use of Article 12(4) of PD 113/2013, especially for minor asylum seekers who are detained in facilities for adults.9
The interpretation of grounds in practice
Irregular migrants in Greece are systematically detained, without any individual assessment of the case, when apprehended at the land border with Turkey or in the territory, deprived of proper documentation. This is not the case for those arriving on the islands. The decision that orders the detention is neither taken after an individual examination, nor is it justified.
During its recent visits to detention centres, GCR has noticed that the “danger for national security or public order” ground is excessively used as a ground for detention for both asylum seekers and third country nationals in view of removal. According to the Greek Ombudsman,10 the police authorities, in order to use detention, seem to rely on a "legitimising reason" of prior prosecution or earlier imposition of custodial sentences, whose execution has, however, been suspended by courts. In addition, detention orders on the ground of being dangerous are issued for third-country nationals whose removal is not feasible (e.g. Syrians, Somalis). Here, it should also be noted that this category of administrative detainees may be detained for more than 6 months, while convicted prisoners whose expulsion order cannot be executed within 3 months, after their sentence has been served, are released.11 In such cases, GCR has found that return decisions are issued even for asylum seekers who do not hold their asylum seeker’s card at the moment of arrest. These persons remain in detention even after being verified that they had applied for asylum before arrest. In July 2014, a Somali national who was released following the registration of his asylum application – after 8 months in detention – was arrested the day after trying to obtain his asylum seeker’s card from the RAO of Attica. According to his allegations, the police staff, which was in charge of conducting the arrest, told him that the decision for release was wrong because it had not been taken into account that he had been detained on public security grounds. The person remained in detention until he was granted subsidiary protection.
- 1. Article 13(2) PD 114/2010; Article 12(2) PD 113/2013.
- 2. Ibid.
- 3. Article 12(3) PD 113/2013.
- 4. See E Koutsouraki, ‘The situation in Greece: Systematic, extended, indiscriminate detention’, in I. Papageorgiou (ed.), The Administrative Detention of Aliens; International Legislation and National Practice (Nomiki Vivliothiki, 2015), 89.
- 5. Article 8(3)(b) recast Reception Conditions Directive only allows detention where it is necessary for the purpose of establishing elements of the claim, in particular where there is a risk of absconding.
- 6. Article 13(3) PD 114/2010; Article 12(4) PD 113/2013.
- 7. Article 12(4) PD 113/2013.
- 8. Ibid.
- 9. GCR, Submission of the Greek Council for Refugees to the Committee of Ministers of the Council of Europe in the case of MSS v Belgium & Greece’, 29 May 2015, available at: http://bit.ly/1Q51vbN.
- 10. Greek Ombudsman, Intervention following a complaint submitted by the Greek Council for Refugees for 7 Syrians detained in police stations cells and detention centres in Attica, Document 171931/37998/2013, 26 November 2013.
- 11. Article 74 (4) Greek Penal Code.