Greece - Administrative First Instance Court Corinth, 19 August 2013, Application No. 223/2013

Country of Decision:
Country of Applicant:
Date of Decision:
19-08-2013
Citation:
Application No. 223/2013
Court Name:
Administrative First Instance Court Corinth
National / Other Legislative Provisions:
Greece - Law No. 3386/2005
Greece - Law No. 3907/2011
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Headnote: 

This was a decision on appeal against detention under Articles 76(3) et seq of Law 3386/2005 and 30(2) of Law 3907/2011. It concerned an act to halt an asylum application, Non-attendance at the personal interview at the primary examination of the application was deemed to be tacit withdrawal of the application to be granted asylum. The Applicant was arrested due to the absence of legal documentation and decisions to detain and return were issued.  Mental illness associated with the return process was considered.

A judicial decision lifted the detention order so as to not worsen the health condition of the Applicant. Imposition of restrictions and a deadline for leaving Greece were discussed.

Facts: 

The Applicant sought asylum in Greece on 8.1.2011. Due to  health problems, he did not attend the primary interview to examine his application to be granted asylum and an order was issued to discontinue the application (no. 119303/15.11.2010). His non-attendance at the interview was deemed to be tacit withdrawal of the application for asylum resulting in his asylum seeker card not being renewed; for that reason he was arrested on 12.1.2013 and an order to detain and return him was issued. Whilst in detention at the Corinth Closed Residential Centre for Migrants (CRCM), he requested legal assistance from the Greek Council for Refugees and, on 5.6.2013, he filed an appeal at Attica Immigration Directorate against the order to discontinue the examination of his application for asylum, submitting confirmation that he was hospitalized and underwent surgery at the 'G. Genimmatas' Hospital during that period, meaning that he could not go to Attica Immigration Directorate to find out about the progress of his asylum claim, receive an invitation to the primary interview, or even be informed of the discontinuance order in good time so that he could submit an appeal within the statutory time limit.                

Throughout June – due to his long-term detention, non-administration of medical treatment, and the total lack of the special diet required by people with his medical history – he suffered from acute pain, but the seriousness of of his condition was not noticed by those in charge of his detention. Despite repeatedly asking to be taken to hospital so as to get urgent medical attention and be given the appropriate medical treatment, those in charge ignored him.

In a moment of desperation, and no longer able to tolerate the physical pain, he attempted to hang himself one night. However, he was noticed by another detainee who woke up and called for help.

He was then taken to Attica Psychiatric Hospital (APH) where he was treated for 10 days. In the meantime the Chief of Corinth Police Department issued an order (no. 34669/4 of 21.6.2013) to postpone his deportation. On 3 July, while he was getting ready to be discharged from the APH, the Corinth Police Chief revoked the order to postpone the deportation and the Applicant was taken back to Corinth CRCM.

That evening, after the Greek Council for Refugees intervened at the Corinth Police Department (because of concerns expressed by the doctors at the APH) he was taken to Corinth General Hospital where the doctors recommended medical treatment. The detaining authorities, however, did not administer the medication recommended by the doctors for over 48 hours, and it required further intervention by the Greek Council for Refugees before he was provided with the urgent medical treatment. At no time was he given the special diet in accordance with the doctors' instructions. His mental state also deteriorated because he was not given the medication recommended by the doctors at the APH.

Decision & Reasoning: 

On 16.8.2013, the president of the Administrative First-Instance Court of Corinth heard the Applicant's appeal against detention which had been submitted on 19.7.2013, taking into consideration the provisions of Articles 76(3) et seq of Law 3386/2005 and 30(2) of Law 3907/2011, as well as the contents of the Court file, and found that:

A) The temporary detention of the Applicant had been ordered because he was deemed to be at risk of absconding;

B) The temporary detention of the Applicant had been extended so as to complete the process of deporting him from the country;

C) The Applicant submitted an application for asylum on 8.1.2011 but did not attend the primary interview to examine the application so an order was issued to discontinue the process;

D) There was no indication in that contested order or other orders issued against the Applicant, nor from the details in the Court files, that he was a danger to public order;

E) from the Corinth Police Chief's order of 21.6.2013 to postpone his deportation, his transfer to the APH pursuant to a judicial order, and also a medical report by his doctor at the APH, it was found that the Applicant had been hospitalized from 21.6.2013 to 3.7.2013 and was diagnosed to be suffering from “a reaction to severe stress and adjustment disorders linked to the deportation process. He shows signs of depression and is receiving antidepressant medication (name and dose of the medication). He needs psychological support and monitoring.”;

F) On 13.8.2013, the Corinth Police Chief issued a report about the circumstances of the Applicant's detention and his medical care and medical treatment.

The Court held that the Applicant was suffering serious health problems which would in all likelihood be worsened by his continued detention. Furthermore, taking into consideration that the Applicant's identity had been confirmed in a reliable way (since he submitted an application for recognition of refugee status on 8.1.2011) and also taking account of the nature of the offence for which he was being detained, regardless of the fact that the available evidence did not indicate a known and fixed address for him, the Court decided that his appeal should be upheld. The Court also held that this was a separate issue from the issue of whether, in the opinion of the relevant judicial, police, medical or other authorities, there were reasons to take appropriate security measures to ensure that, in view of his health conditions, the Applicant would not constitute a risk to himself and/or others during his stay in Greece.

For those reasons, the Judge upheld the Applicant's appeal, gave him a 30-day deadline to leave Greece, and ordered cessation of his detention on condition that: a) he informed the relevant police authorities of his residential address as well as of any change there may be in future, and b) he reported to his local police department every three days.

Outcome: 

The Judge upheld the appeal and ordered that the Applicant's detention be lifted under conditions, giving him a 30-day deadline in which to leave Greece.

Observations/Comments: 

This is a  significant decision because it examined whether the continued detention of a psychiatric patient was proportionate to the objective of returning him. The fact that there was no indication of a known and stable residential address for the Applicant did not have a negative impact on the Court's decision, and the Court proceeded to examine the legality of the detention based on the prevailing conditions in Corinth CRCM which made it certain that the Applicant's health would deteriorate if his detention continued. It should be noted that the relevant courts systematically reject appeals against detention when there is no known address, presuming that the Applicants are at risk of absconding, without reviewing the legality and conditions of the detention. It is also significant that the Court imposed alternative measures (restrictions), in contrast to the authorities' practice of systematically applying the harsher measure of detention without exploring the possibility of taking alternative measures in accordance with Law 3907/2011 (which transposed the Returns Directive into the Greek legal system). In addition, this decision highlights that the Applicant's identity was confirmed in a reliable way through his submission of the application for recognition of his refugee status and that, therefore, his detention should not have continued for the purpose of confirming his identity since he had no legal documentation.