DH-DD(2020)929: Rules 9.2 and 9.6 Communication from an NGO in S.D. v. Greece and reply from the authorities. Document distributed under the sole responsibility of its author, without prejudice to the legal or political position of the Committee of Ministers. 6. On the one hand, the International Protection Act (IPA) enacted in November 2019 has brought about a multidimensional expansion of detention of asylum seekers in four main respects:7 a. Whereas detention of asylum seekers was previously permissible only in cases where persons sought asylum while in pre-removal detention,8 Article 46(2) IPA now also permits detention of persons who have applied for asylum at liberty. b. The IPA has inserted more grounds for detention of asylum seekers by permitting detention for the purposes of deciding in a border procedure on an asylum seeker’s right to enter the territory.9 c. Asylum detention orders are no longer preceded by a recommendation (εισήγηση) of the Asylum Service to the competent police authorities. Under Article 46(4) IPA, the Police should only have received prior information (προηγούμενη ενημέρωση) from the Asylum Service when issuing a detention order. The repeal of the requirement of a recommendation exacerbates risks of arbitrariness, since it strips the Asylum Service of a crucial role in the determination of whether detention is necessary for effectively carrying out the asylum procedure. In fact, the Asylum Service has often advised against the use of detention, with 13,587 out of 21,492 recommendations issued in 2018 (63%) and 10,972 out of 17,630 recommendations issued in 2019 (62%) calling for release of the applicants concerned.10 d. Article 46(5)(b) IPA has extended the general duration of asylum detention orders from 45 days to 50, subject to the possibility of prolongation by a further 50 days. The law currently in force has also extended the maximum period for which an asylum seeker may be detained from 3 months to 18. Previous periods of time spent in pre-removal detention are not counted in the calculation of said time limit. Accordingly, the design of domestic law could lead to situations where the combined effect of asylum and return regimes would expose individuals to deprivation of liberty for up to 3 years. This creates risks of disproportionately lengthy administrative detention contrary to constitutional guarantees, bearing in mind that pre-trial detention may never exceed 18 months under the Greek Constitution.11 7. On the other hand, following a legislative reform affecting pre-removal detention in May 2020, domestic law provides that “third-country nationals subject to return proceedings shall be detained for the preparation of return and the carrying out of the removal procedure”, as a general rule.12 Accordingly, Greek legislation is incompatible with the obligations assumed by Greece under the EU Return Directive,13 since it no longer formulates pre-removal detention as a measure of last resort, to be ordered only when necessary and proportionate. As of May 2020, the law also construes pre-removal detention as the default step following the rejection of an asylum application at second instance.14 7 8 9 10 11 12 13 14 See also RSA, Comments on the International Protection Bill, October 2019, https://bit.ly/36PEE2f. Article 46(2) L 4375/2016. Article 46(2)(e) IPA. Asylum Information Database, Country Report Greece, 2018 Update, March 2019, 151, https://bit.ly/2r8ZabB; 2019 Update, June 2020, 182, https://bit.ly/3luLtup. Article 6(4) Greek Constitution. Article 30(1) L 3907/2011, as amended by Article 51 L 4686/2020. Article 15 Directive 2008/115/EC of the European Parliament and of the Council of 16 December 2008 on common standards and procedures in Member States for returning illegally staying thirdcountry nationals [2008] OJ L348/98. Article 92(4) IPA, inserted by Article 20(2) L 4686/2020. RSA COMMENTS │ 2020 2