Greece - Administrative Court of First Instance of Kavala, Decision no. 407/2018, 17 December 2018

Country of Decision:
Country of Applicant:
Date of Decision:
17-12-2018
Citation:
Decision no. 407/2018, 17 December 2018, Administrative Court of First Instance of Kavala
Court Name:
Administrative Court of First Instance of Kavala, Department A
Relevant Legislative Provisions:
Council of Europe Instruments > EN - Convention for the Protection of Human Rights and Fundamental Freedoms > Article 5 > Art 5.1 > Art 5.1 (f)
National / Other Legislative Provisions:
Article 76(3)
(4) Law 3386/2005 (Government Gazette A’ 212) as amended by articles 48 Law 3772/2009 (Government Gazette A’ 112) and 55 Law 3900/2010 (Government Gazette A’ 213)
Article 139 Law 4251/2014 (Government Gazette A’ 80/01-04-2014)
Articles 18
22(3)
30 Law 3907/2011 (Government Gazette 7)
Presidential decree π.δ. 123/2016- Government Gazette A’ 208
Articles 34
36
37(1)
46 Law 4375/2016 (Government Gazette A’ 51
57)
Presidential decree π.δ. 141/2013 (A’ 226) transposition of Qualification Directive 2011/95/EU
Article 5(3) of the Greek Constitution
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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.

Case Law Cited: 

Greece - Administrative Court of Komotini, Decision no 916/2018,