REPORTS
Athens Administrative Court of First Instance: Detention of two Afghan asylum seekers was unlawful
On 17 March 2023, the Athens Administrative Court of First Instance issued two court decisions, which found the arrest and detention of two asylum seekers from Afghanistan to be in violation of the legal framework for the international protection of refugees. In both cases, the court ordered the release of the Afghan citizens.
These court decisions (ΑΡ 721/2023 and ΑΡ 741/2023) confirmed that the submission of an application to register an asylum application on the Ministry of Immigration and Asylum’s online platform establishes a person’s status as an asylum seeker, contrary to common Ministry practice, which is in violation of national legislation and the requirements of EU and international law on refugee protection.
According to the Greek Council for Refugees (GCR), which supported the appeals of the two individuals, the cases concerned Afghan citizens who had already submitted an application to the electronic platform of the Ministry of Immigration for the registration of their asylum request and were waiting for the date to be given by the Ministry for the complete registration of the application, but were arrested and detained beforehand. In fact, their arbitrary arrest and detention resulted in them being unable to go to the Malakasa Reception and Identification Centre for the full filing of their international protection application.
It should be noted that, according to the court, in both cases, Article 50 of Law 4939/2022 (Government Gazette Α’ 111/10.6.2022), paragraph 1 of which provides that “a third country citizen or stateless person who applies for international protection shall not be detained for the sole reason that he/she has applied for international protection, as well as that he/she entered the country irregularly and/or remains in the country without a legal residence permit”, should have been applied.
It is noteworthy that the Ombudsman has also intervened on the same issue. On 14 March 2023, the independent authority asked the Ministry of Immigration to consider removing the problematic wording contained in the document received by persons completing the registration of their application on the Ministry’s platform, which states that “this document is not an expression of will but a proof of intention.” According to the Ombudsman, this wording violates the purposes and definitions of the current legislation.
In addition, the independent authority asked the police authorities to ensure that the provisions of the legislation in force are complied with, according to which it is prohibited to issue a return decision to anyone who has applied for international protection status, as well as the detention of such persons for the same reason, in accordance with the reasoning of the above-mentioned court decisions.
Where is the issue with the rule of law? In a state governed by the rule of law, state authorities must – in compliance with refugee law and the Geneva Convention – respect fundamental human rights and the right to asylum. However, in these two cases, the Greek judiciary found that the state authorities had unlawfully arrested and detained two Afghan asylum seekers, in violation of Article 50 of Law No. 4939/2022.
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