REPORTS
Administrative Court of First Instance of Kavala: detention of an Afghan asylum seeker was unlawful
On 7 February 2023, the Administrative Court of First Instance of Kavala issued a decision (Dpr Kavala 164/2023), ruling as unlawful the issuance of an administrative decision for the detention of a citizen from Afghanistan, who was arrested by the police and detained while awaiting the date of full registration of his asylum application.
More specifically, according to this decision, in early 2023 the Afghan citizen in question was arrested in Athens by a police officer of the Athens Migration Management Department. However, the court held that the Afghan national, by entering the online platform of the Ministry of Immigration and Asylum and submitting a registration planning application, “acquired the status of an asylum seeker”.
Therefore, as the asylum seeker in this case had completed the above procedure to apply for asylum, his arrest and detention by the police authorities was unlawful. On the basis of the above, the Administrative Court of First Instance of Kavala requested that the Afghan citizen be released.
It should be noted that, according to the court, in the above case, Article 50 of Law No. 4939/2022 (Government Gazette A’ 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.
The Greek Council for Refugees (GCR), which supported the asylum seeker before the Administrative Court of First Instance of Kavala, commented that, “the procedure provided for access to asylum acts as a disincentive and a deterrent to filing an application for international protection in Greece, in violation of the country’s obligations.
In addition to the technical problems encountered on the platform for scheduling the date of full registration of asylum applications, applicants remain for a significant period of time at risk of being stigmatised, arrested and detained, due to the refusal of the Greek authorities, in breach of national and EU law, to recognise the status of asylum seeker to those who have followed the prescribed procedure and are awaiting the date of arrival for the completion of registration. Thus, those who wish to lodge an asylum claim in Greece remain in a prolonged state of insecurity”.
The GCR added: “In practice, a person wishing to lodge a claim for international protection after entering the platform of the Ministry of Immigration and Asylum will have to wait for the specified date of completion of registration, which may be months later. However, during this time he/she does not have access to reception conditions and risks illegal arrest and detention.”
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 the case at hand, the Greek judiciary found that the state authorities unlawfully arrested and detained an Afghan asylum seeker, in violation of Article 50 of Law No. 4939/2022.
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