18 results in the unlawful detention of vulnerable carefully examined.41 The CJEU also migrants. understands the Return Directive to directly While the police are responsible to individually oblige Member States to “raise of its own assess the need for detention in each case, RIS also has a responsibility to ensure that either the police or individual applicants have access to vulnerability papers. The unity of administration and the mutual attribution of the conduct of various state motion, on the basis of the material in the file brought to its attention, as supplemented or clarified during the adversarial proceedings before it, any failure to comply with a condition governing lawfulness which has not been invoked by the person concerned.”42 agencies is not only a fundamental principle of Given these considerations EU law requires the the democratic constitutional state, but rather Greek authorities to assess the individual case also an enforceable right, which, at the carefully and fairly on their own motion and no European level, comes in part from Art. 41 matter whether it was raised by the person CFR.36 Member States are not directly bound concerned or not – to assess, whether there are by the provision,37 however, it is common sense38 that Art.41 “reflects a general principle of Union law” and applies precisely to vulnerabilities. Of course, this also concerns to check, whether an assessment has been conducted already. proceedings before national authorities, ii. Unaccompanied minors insofar as Union law is implemented. Under Greek, EU, and international law, Therefore, even if Art. 41 does not apply children can only be detained in very limited directly, its factual content must also be circumstances and as a matter of absolute last observed in proceedings before Member States resort.43 Accordingly, the Greek authorities on as a general principle of Union law when Kos do not detain recognized unaccompanied implementing EU law , so that Greek minors or families with minor children.44 authorities are directly bound by it when However, the age assessment procedure in assessing the legality of detention.40 Further, Greece is notoriously flawed, resulting in many the CJEU also requires Member States to unaccompanied children being registered as maintain a “sound administration” according adults.45 Consequently, children wrongly 39 to which all relevant circumstances must be General Court of the EU, decision of 16/12/2015 – T-138/14 – Chart, para 113. 37 Cf. the wording of Art. 41 referring to “the institutions, bodies, offices and agencies of the Union” and CJEU, judgement of 17/12/2015 – C419/14 – WebMindLicenses, para. 83. 38 CJEU, judgement of 17/12/2015 – C-419/14 – WebMindLicenses, para. 83; judgement of 8 May 2014 – C-604/12 – H.N., para 49 et seq. 39 Cf. Art. 51(1) CFR40 As shown, the provisions derive from the Return and the Reception Conditions Directives, which are EU secondary law. 41 CJEU, judgement of 22/11/2017 – C-691/15 – Bilbaína de Alquitranes, para.35. 36 42 CJEU, decision of 08/11/2022 – C-704/20; C39/21 – X. 43 Art. 11 (2) Directive 2013/33/EU; Art. 17 (1) Directive 2008/115/EC; Art. 50(2) L. 4939/2022; Art. 32(1) L. 3907/2011. 44 Detained and Forgotten, supra note 3, at 20. 45 HIAS, Communication in accordance with Rule 9.2 of the Rules of the Committee of Ministers regarding the supervision of the execution of judgments and of terms of friendly settlements by HIAS GREECE in the M.S.S. and Rahimi Groups v. Greece (August 2020), 20, available at: https://bit.ly/3v9tNuw; Human Rights Watch, Greece: Lone Migrant Children Left Unprotected (19 July 2017), available at: https://bit.ly/2YTEFRc; European Committee of ‘Still detained and forgotten’ – Update on Detention Policies, Practices, and Conditions on Kos 2022/23