provision of national law includes a non-exhaustive list of objective criteria which may be used as a basis for determining the existence of such a risk, namely where a person: 1209 ❖ Does not comply with an obligation of voluntary departure; ❖ Has explicitly declared that they will not comply with the return decision; ❖ Is in possession of forged documents; ❖ Has provided false information to the authorities; ❖ Has been convicted of a criminal offence or is undergoing prosecution, or there are serious indications that they have or will commit a criminal offence; ❖ Does not possess travel documents or other identity documents; ❖ Has previously absconded; and ❖ Does not comply with an entry ban. The fact that national legislation includes a non-exhaustive and indicative list of such criteria and thus other criteria not explicitly defined by law can also be used for determining the existence of the “risk of absconding”, is not in line with the relevant provision of the EU law, according to which said objective criteria ‘must be defined by law’.1210 Article 50(2)(3) Asylum Code also provided that such a detention measure should be applied exceptionally, after an individual assessment and only as a measure of last resort where no alternative measures can be applied. As noted above, a detention order under the Asylum Code is issued following prior notification by the Head of the Asylum Service. However, the final decision on the detention lies with the Police. The number of information notes to this end made by the Asylum Service in 2024 is not available. 1.2. Detention of asylum applicants applying at liberty In addition, the Asylum Code provides for the possibility of detaining asylum applicants even when they apply for international protection while not detained, on the basis of any of the grounds provided by Article 8 of the Directive 2013/33/EU. 1.3. The interpretation of the legal grounds for detention in practice There is a lack of a comprehensive individualised procedure for each detention case, despite the relevant legal obligation to do so. This is of particular concern with regard to the proper application of the lawful detention grounds provided by national legislation, as the particular circumstances of each case are not duly taken into consideration. Furthermore, the conditions and the legal grounds for the lawful imposition of a detention measure seem to be misinterpreted in some cases. These cases include the following: Detention on public order or national security grounds As repeatedly reported in previous years, public order grounds are used in an excessive and unjustified manner, both in the framework of pre-removal detention and detention of asylum applicants. 1211 This continued to be the case in 2024. The Return Directive does not foresee detention on public order grounds,1212 and thus the relevant Greek provision on pre-removal detention – Article 30(1)(c) L 3907/2011 – is an incorrect transposition of EU law. For both detainees subject to removal and asylum applicants, detention on public order grounds is usually not properly justified. The Authorities issue detention orders without prior examination of whether the ‘applicant’s individual conduct represents a genuine, present and sufficiently serious threat’, in line with the jurisprudence of the Council of State and the CJEU.1213 This is particularly the case where these grounds are based solely on a prior prosecution for a minor offence, even if no conviction has ensued, or in cases where the person has been released by the competent Criminal Court after the suspension of custodial sentences. 1214 For 1209 1210 1211 1212 1213 1214 Article 18(g)(a)-(h) L 3907/2011. Article 3(7) Directive 2008/115/EC; see CJEU, C 241/21, 6 October 2022, para. 50 and mutandis mutandis CJEU, C-528/15, Al Chodor, 15 March 2017, para. 47. Ombudsperson, Return of third-country nationals, Special Report 2018, p. 17, available at: https://tinyurl.com/4k73tnnh. European Commission, revised Return Handbook, 27 September 2017, no longer available online, pp. 78-79. CJEU, Case C-601/15 PPU J.N., 15 February 2016, available at: https://bit.ly/3BXp7vY, paras 65-67. See e.g., Greek Council of State, Decisions 427/2009, 1127/2009 and 2414/2008, which highlight that a mere reference to a criminal conviction does not suffice for the determination of a threat to national security or public order. Administrative Court of Trikala, Decision 5/2024, Administrative Court of Livadia, Decision 8/2024 220