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.
Failure to assess the prospect of removal in “objections”
24. Administrative Courts fail to conduct a thorough and individual examination of the
realistic prospect of deportation when reviewing pre-removal detention orders,
contrary to Article 5(1) of the Convention51 and domestic law.52 Despite constraints to
carrying out readmissions to Turkey – discussed above – being known to the Greek
authorities at the time, the April 2020 rulings of the Administrative Court of Athens
concerning pre-removal detention during the period of effect of the suspension of
the asylum procedure made no assessment of clear obstacles to a reasonable
prospect of the individuals’ removal to Turkey.53 Failure of Administrative Courts to
engage with the reasonable prospect test is reflected in subsequent case law
dismissing objections agianst detention,54 even in decisions accepting objections.55 In
an example of cases where courts have engaged with the reasonable prospect of
removal, on the basis of explicit evidence of the suspension of readmissions to Turkey,
the Administrative Court of Mytilene nevertheless upheld detention on 5 June 2020 on
the ground that “despite the suspension of readmissions by the Turkish authorities,
such a temporary suspension may be lifted at any time in the near future”. 56
Failure to assess detention conditions in “objections”
25. As regards the effectiveness of judicial review of detention conditions, RSA & Stiftung
PRO ASYL corroborate concerns as to the failure of Administrative Courts to take into
consideration grossly substandard conditions in detention facilities.57 In some cases,
courts dismiss the relevant submissions of appellants without providing reasoning or
justification,58 or fully disregard them.
26. In addition, the case law of Administrative Courts in 2020 has failed to take into
account potent risks to the well-being of individuals on account of the COVID-19
pandemic. Courts have dismissed alleged risks of exposure to inappropriate
detention conditions and of contracting COVID-19 in detention as unsubstantiated,59
without any assessment whatsoever of the conditions prevailing in pre-removal
centres and their preparedness to prevent the spread of the COVID-19 pandemic. In
other cases, courts have entirely disregarded the appellant’s submissions relating to
COVID-19 risks in detention.60
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55
56
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ECtHR, Mikolenko v. Estonia, App No 10664/05, 8 October 2009; Louled Massoud v. Malta, App No
24340/08, 27 October 2020, paras 48-74.
Article 30(4) L 3907/2011.
Administrative Court of Athens, Decisions 356/2020 and 357/2020, 3 April 2020; Decisions 358/2020,
359/2020 and 360/2020, 7 April 2020.
Administrative Court of Athens, Decision 867/2020, 16 July 2020.
Administrative Court of Mytilene, Decision AP73/2020, 20 March 2020.
Administrative Court of Mytilene, Decision AP117/2020, 5 June 2020, para 4.
See e.g. Administrative Court of Piraeus, Decision 56/2019, cited in Asylum Information Database,
Country Report Greece, 2019 Update, June 2020, 202.
See e.g. Administrative Court of Rhodes, Decision AP464/2020, 17 July 2020, para 4(c).
Administrative Court of Athens, Decisions 358/2020, 359/2020 and 360/2020, 7 April 2020, para 4;
Decision 867/2020, 16 July 2020, para 5; Administrative Court of Rhodes, Decision AP464/2020, 17
July 2020, para 4(c).
Administrative Court of Mytilene, Decision AP117/2020, 5 June 2020, para 4.
RSA COMMENTS │ 2020
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