88  Eleni Koutsouraki j Indefinite Detention of Undesirable and Unreturnable TCNs in Greece return.9 While the concept of unremovability appears reasonably clear, it is not easy to define which of these could a priori also be considered as “undesirable”. Arguably, all undocumented TCNs present in Greece could be considered “undesirable” in the current socioeconomic climate. Thus, it would be useful to study the characteristics of TCNs placed under administrative detention on national security and/or public order grounds to gain a clearer picture of this group of persons. Regulations on the basis of which an undocumented TCN should be considered a danger to national security and/or public order do not exist. It is therefore useful to take into consideration the criteria used by the Hellenic Police when issuing detention orders. According to the information received from the Headquarters of the Hellenic Police for the purposes of this article,10 undocumented TCNs are deemed a danger to public order, and placed under administrative detention on this ground, when they present systematic delinquent behaviour and have already served a term of imprisonment for violations of the Penal Code for offences such as theft, robbery, homicide, trafficking, smuggling, and forgery. However, the Greek Ombudsman observes that the police authorities appear to rely on the “legitimizing reason” of prior prosecution or imposition of a custodial sentence even where the executions of such sentences have been suspended by the courts. Typical examples in this category are sentences for attempting to leave the country illegally or for the use of drugs.11 It therefore appears that the Hellenic Police rely not only on the fact an undocumented TCN has served a criminal sentence, but also instances of prior prosecution without any subsequent sentence imposed by the courts or minor offences where a sentence has been suspended, to justify the use of administrative detention on grounds of “undesirability”. 2.1. Legal framework regarding the detention of TCNs Undocumented TCNs may be subject to administrative detention in view of return (Law 3907/2011)12 or administrative expulsion (Law 3386/2005).13 In both cases, 9 10 11 12 13 Committee of Ministers of the Council of Europe in the context of implementing European Court of Human Rights (ECtHR) Judgement, M.S.S. v. Greece and Belgium: DH-DD (2013) 1225F, 13 novembre 2013, 1186 réunion (3-5 décembre 2013), (DH) - Communication de la Grèce relative a l’affaire M.S.S. contre Belgique et Grèce (Requ^ete n 30696/09) - Informations mises a disposition en vertu de la Règle 8.2. a des Règles du Comité des Ministres pour la surveillance de l’exécution des arr^ets et des termes des règlements amiables), Doc. DH-DD(2013)1225, 13 Nov. 2013, available at: https://wcd.coe.int/ViewDoc.jsp?Ref¼DHDD(2013)1225&Language¼lanFrench&Site¼C (last visited 3 Dec. 2016). Mostly related to the lack of cooperation between Greek authorities and the relevant diplomatic representations regarding the issuing of travel documents, as well as the non-cooperation of the TCNs in the identification of their personal details, or their refusal to return to their countries. See European Migration Network, Good Practices in the Return and Reintegration of Irregular Migrants: Member States’ Entry Bans Policy & Use of Readmission Agreements between Member States and Third Countries (Greece), EMN Focussed Study, 2014, available at: http://ec.europa.eu/dgs/home-affairs/what-we-do/networks/european_migration_network/reports/ docs/emn-studies/12a_greece_emn_national_report_return_reintegration_en.pdf (last visited 3 Dec. 2016). E-mail correspondence in Jan. 2016 held on file by author. Greek Ombudsman, Doc. 175063/49247/2013, 19 Nov. 2013. Art. 30(1) of Law 3907/2011 on the establishment of an Asylum Service and a First Reception Service, transposition into Greek legislation of the provisions of the EU Return Directive (Directive 2008/115/ EC on common standards and procedures in Member States for returning illegally staying third-country nationals [2008] OJ L 348/98) and other provisions Art. 76(3) of the Law 3386/2005 on the entry, residence and social integration of third-country nationals on Greek territory. Downloaded from https://academic.oup.com/rsq/article-abstract/36/1/85/2888417 by Lancaster University user on 19 December 2017