Last Updated on April 25, 2019 by LawEuro
Law 4375 (Country: Greece)
On the organization and operation of the Asylum Service, the Appeals Authority, the Reception and Identification Service, the establishment of the General Secretariat for Reception, the transposition into Greek legislation of the provisions of Directive 2013/32/EC “on common procedures for granting and withdrawing the status of international protection (recast(” (L 180/29.6.2013), provisions on the employment of beneficiaries of international protection and other provisions
Content of the law – 1 2 3 4 5 6 7 8 9 10 11 12
CHAPTER Β
GENERAL PRINCIPLES AND GUARANTEES APPLICABLE THROUGHOUT THE DURATION OF THE PROCEDURE
Article 36
(Articles 6 and 7 of the Directive)
Access to the procedure
a. Any alien or stateless person has the right to apply for international protection. The application is submitted before the competent receiving authorities, which shall immediately proceed to register it fully. Full registration shall include at least the applicant’s identity, his/her country of origin, the names of his/her father, mother, spouse and children, as well as biometric identification data and a brief reference to the reasons for which the applicant requests international protection.
b. When, for any reason, it is not possible to proceed to the full registration as per point (a) above, the receiving authorities may, following a decision by the Director of the Asylum Service, proceed, no later than three (3) working days after the application is made, to a simple registration of the minimum necessary elements and proceed to the full registration, as per point (a) above, as soon as this is rendered possible and by priority.
c. The application for international protection is deemed to have been lodged as of the date of the full registration as per point (a) above and from that date shall count the relevant time limits for its examination as per article 51 below. In case the alien or stateless person who has lodged an application for international protection does not appear for registration, although duly invited for according to the provisions of the present part, the case shall be filed by decision of the Head of the competent Regional Asylum Office.
2. The competent receiving authorities shall ensure the exercise of the right to lodge an application for international protection on condition that the applicant appears in person before them, without prejudice to article 42 paragraph 1 case (a) below.
3. If an alien or stateless person is subject to detention or is in a Reception and Identification procedure according to the legislation in force and declares his intention to submit an application for international protection, the competent authorities shall ensure the immediate recording and submission of a relevant written statement. Following this, the application for international protection shall be registered by the detention authority or by the Reception and Identification Service according to the provisions of paragraph 1 (b) of this article (simple registration) through an electronic network connected with the Receiving Authority no later than six (6) working days afterwards. The detention authorities or the Regional Reception and Identification Services shall ensure, in cooperation with the Receiving Authority, the transfer of the detainee before the Receiving Authority so as to complete the full registration of the application for international protection as per paragraph 1 point (a) above. In case the applicant is released before the completion of the full registration, he/she must appear within 10 days before the competent Receiving Authority in order to schedule the full registration of the application for international protection. In case the applicant does not appear for registration, the case shall be archived by decision of the Head of the competent Regional Asylum Office. The person who expresses his/her intention to submit an application for international protection is an asylum applicant, in accordance with the provisions of Article 34 point (d) of the present law.
4. If the application for international protection is submitted before a non- competent authority, that authority is obliged to notify promptly the competent Receiving Authority using the most appropriate way and to refer the applicant to it. The Central Asylum Service shall ensure that the authorities which are likely to be approached by any person who wishes to apply for international protection (especially the Hellenic Police, the Coast Guard and the Reception and Identification Service), are informed and trained about the competent services and the procedure for submitting an application, according to the provisions of paragraph 1 of this article, in a way that persons interested be informed of the place and means for submitting an application for international protection.
5. Where simultaneous applications for international protection by a large number of third country nationals or stateless persons make the registration, as provided in paragraph 1 or in paragraph 3, very difficult, the registration of an application may take place within 10 working days.
6. The applicant may submit an application on behalf of his/her family members. In such cases, the adult members having legal capacity must consent in writing to the lodging of the application on their behalf, or otherwise have the opportunity to submit an application on their own. Before consent is requested, dependent adult members shall be informed in private of the relevant procedural consequences of lodging an application on their own and on their right to lodge an individual application for international protection. The consent shall be requested at the time the application is lodged or, at the latest, during the personal interview with the said member.
7. An applicant, who bears a child after his/her entry in the country, may submit an application on behalf of the child; the application must be accompanied by the child’s birth certificate. This application is consolidated with the application of the parent applicant at any stage and instance of the procedure this may be.
8. A minor above 15 years of age, can lodge an application, independently and in person. In case he/she is unaccompanied, the provisions of Article 45 of the present law shall apply.
9. An unaccompanied minor, under 15 years of age, lodges an application through a representative, as defined in Article 45 of the present law.
10. The representative of the minor, as well as the representative of the accommodation centre that hosts the minor, in accordance with Article 19 of the Presidential Decree 220/2007, may submit an application for international protection on the minor’s behalf, as long as, on the basis of a individual assessment of the personal circumstances, they consider that the minor might have the need of international protection. The minor must be present during the lodging of the application, unless this is not possible due to force majeure.
Article 37
(Article 9 of the Directive)
Right of the applicants to remain – Exceptions
1. Applicants shall be allowed to remain in the country until the conclusion of the administrative procedure for the examination of their application and they shall not be removed in any way.
2. The previous paragraph shall not apply in cases where the authorities either surrender the applicant to another EU Member State, in application of a European Arrest Warrant according to the provisions of Law 3251/2004 (O.G. Α 127), or extradite the applicant to a third country, with the exception of the applicant’s country of origin, or to international criminal courts, in accordance with the country’s international obligations. This surrender or extradition must not lead to the direct or indirect refoulement of the applicant in breach of Article 33 par. 1 of the Geneva Convention, or to risk of persecution or serious harm in accordance with the relevant provisions of P.D. 141/2013, article 7 of the International Covenant on Civil and Political Rights, article 3 of the New York international convention against torture, article 3 of the European Convention on Human Rights, articles 4 and 19 of the Charter of Fundamental Rights of the European Union, as well as article 5 of the Constitution. No applicant shall be extradited before a final decision on his/her application is issued, as long as the applicant claims fear of persecution in the requesting State.
3. The right of the applicant to remain in the country, according to par. 1, shall not constitute an entitlement to be issued a residence permit.
Article 38
(article 8 of the Directive)
Information and counselling in detention facilities and at Greek border entry points
Aliens or stateless persons held in detention facilities or present at border crossing points, including transit zones, at external borders, shall receive information on the possibility to submit an application for international protection. The Asylum Service, in cooperation with the authorities operating in these places, and/or civil society organisations shall ensure the provision of information on the possibility to submit an application for international protection. In those detention facilities and crossing points, interpretation services shall be provided to the extent that this is necessary for the facilitation of access to the asylum procedure.
2. Organisations and persons providing advice and counselling to aliens or stateless persons, as per paragraph 1 above, shall have effective access to border crossing points, including transit zones, at external borders, unless there are reasons related to national security, or public order or reasons that are determined by the administrative management of the crossing point concerned and impose the limitation of such access. Such limitations must not result in access being rendered impossible to these points for the above-mentioned organisations or persons.
Article 39
(Article 10 of the Directive)
Requirements for the examination of the application
1. Applications shall not be rejected on the sole ground that they were not submitted as soon as possible.
2. All applications for international protection are initially examined regarding the recognition of refugee status, and in case these are not fulfilled, they are examined for the recognition of subsidiary protection status.
3. Decisions on applications shall be taken on an individual basis, following a comprehensive, objective and impartial examination. To that end the Central Asylum Service:
a. Shall search, collect, assess and maintain precise and accurate information on the political, social, economic and general situation which prevails in the applicants’ countries of provenance (countries of origin, countries of previous habitual residence, countries of transit, etc.) in collaboration with other competent authorities or respective authorities of EU Member States in the context of relevant agreements or through reliable sources, such as the European Asylum Support Office and the United Nations High Commissioner for Refugees. This information shall be communicated to the competent Decision Authorities.
b. Shall ensure that the personnel, which examines the applications and decides upon them or makes recommendations for decisions, has knowledge of the national and international legislation and case law on international protection. To this end, it shall organize training and provide for the on-going in-service training of the personnel. It shall also ensure that the personnel have the possibility to seek advice, whenever necessary, from experts on particular issues, such as medical, cultural, religious, linguistic, child-related or gender issues. Furthermore, the Asylum Service shall organize training seminars independently, as well as in cooperation with the United Nations High Commissioner for Refugees and the European Asylum Support Office (EASO). It may also organize training seminars in cooperation with civil society organizations. It shall communicate to the competent Decision Authorities the guidelines and information sheets on international protection issues made available by the United Nations High Commissioner for Refugees.
Article 40
(Article 11 of the Directive)
Reasoning and notification of decisions and other procedural documents
1. The decisions on the application for international protection, including decisions to transfer a person in accordance with Regulation (EU) 604/2013, shall be notified to the applicant in due diligence of the competent Receiving Authority.
2. A notification shall be performed as soon as possible after the issuance of the decision and after notice to the applicant to appear for receiving the decision at a specific date.
3. A notification shall be performed on the basis of the most recent contact data as declared responsibly by the applicant, via mail, telefax, electronic mail or phone call. Reference of this action shall be made by the competent officer to the applicant’s file or to a special ledger, which should bear the date and time the action took place, the name and signature of the officer who made the notice, and the type of means used. Any invitation or communication must be made to the most recent place of residence that the applicant for international protection has declared.
4. If the applicant is detained or remains in a Regional Reception and Identification Service, and if the transfer of the applicant to the Receiving Authorities in order to be notified is impossible on objective grounds, explained in writing to the competent Receiving Authorities, the decision is delivered to the Head of the relevant establishment or facility, who ensures the prompt notification of the decision to the detainee according to the provisions in force, with the assistance of an interpreter in a language understood by the detainee; reference to this is made on the notification report. Following this, the Head of the relevant establishment, detention centre or Regional Reception and Identification Service shall inform accordingly the competent Receiving Authorities to which s/he shall send the notification report.
5. If the applicant fails to comply or s/he is not to be found through the means referred to in paragraph 3, the notification shall be made, at the latest, the next time the applicant appears before the competent authorities for renewing his/her Card.
6. When the notification is made, the applicant is informed by an interpreter in a language he/she understands, and reference is made in the relevant notification report. In cases falling under paragraph 4, a document in a language that the applicant understands is also attached; it explains the content of the notification document, its effects on him/her and the actions he/she may undertake.
7. The decision rejecting the application for international protection shall state the reasons in fact and in law for rejection. The negative decision shall mention the time limit for lodging an appeal, the body before which such appeal may be lodged, the consequences of letting this time limit expire without taking action as well as the possibility and conditions for receiving free legal aid in the procedures before the Appeals’ Authority under the provisions set in the Ministerial decision referred to in Article 7 paragraph 8 above.
8. The invitations by the competent Receiving Authority to the applicant to the interview under Article 52 and by the Appeals’ Authority to the hearing under Article 62, shall be made through any appropriate means, from among those stated in paragraph 3, which ensures that the applicant is aware of the invitation. No invitation is required if the date for a specific interview or oral hearing has been set for the applicant at an earlier stage of the procedure and the meaning and scope of such procedures have been explained to him/her. Any other invitation or summons of the applicant must be made with the means referred to in para. 3.
9. The decisions on applications for international protection, decisions to interrupt the examination of an application and decisions to withdraw an international protection status are communicated to the Aliens’ and Borders’ Protection Branch of the Aliens’ Directorate of the Hellenic Police. The decisions of the Appeals’ Committees are communicated to the Minister of Interior and Administrative Restructuring.
10. If the application is lodged on behalf of the family members of the applicant, who claim the same grounds, the competent decision authority may issue one single decision concerning all family members, unless to do so would lead to the disclosure of particular circumstances of an applicant which could jeopardise his or her interests, in particular in cases involving gender, sexual orientation, gender identity and/or age-based persecution. In such cases, a separate decision shall be issued for the person concerned.
Article 41
(Article 12 of the Directive)
Guarantees for applicants
1. Applicants, when the provisions of chapters C and D below apply, have the following rights:
a. They shall be informed, in a language which they understand, on the procedure to be followed, their rights and obligations, the authorities’ obligation to confidentiality and the fact that the information they provide to the authorities during the examination of their application shall not be revealed to the alleged actors of persecution or of serious harm, the consequences of not complying with their obligations and not cooperating with the authorities, as well as the consequences of the explicit or implicit withdrawal of their application. They shall also be informed of the time limits as well as the means at their disposal for fulfilling the obligation to submit the necessary data for substantiating their claims. The information shall be given in time to enable them to exercise the rights and to comply with the obligations as described in Article 42. This information may be provided by telephone or in an automated manner.
b. They shall be provided the services of an interpreter in order to submit their application and present their case to the competent Receiving Authorities, for the conduct of the interview or oral hearing at all stages of the procedure, at first and second instance, if the necessary communication cannot be ensured without such services. The interpretation costs are borne by the State. Interpretation services, where required during the international protection procedure, may be also provided remotely with the use of appropriate technical means of communication, in cases where the physical presence of an interpreter is not feasible. The competent Decision Authorities shall make sure that they are aware of the content of documents in other languages submitted to them, even if not in official translation.
c. They may communicate with the United Nations High Commissioner for Refugees or any other organization providing legal, medical and psychological assistance.
d. i) immediately after the completion of the registration procedures as per article 36 paragraph 1 above, they shall be provided, free of charge, by the competent Receiving Authority, with the International Protection Applicant’s Card, which shall bear their photograph.
ii) The International Protection Applicant’s Card forms a temporary title, it does not constitute an entitlement to issue a residence permit, it ensures the enjoyment of the applicants’ rights, where these are foreseen by applicable provisions, it assures the necessary transactions during its validity period and allows them the residence in the Greek territory.
iii) The Card may restrict the applicant’s movement to a part of the Greek territory after a decision by the Director of the Asylum Service.
iv) The Card shall be valid for up to one year and shall be renewed until the conclusion of the administrative procedure of the examination of the application for international protection. In case a Card is issued following a simple registration as per article 36 paragraph 1 (b), the Card shall be valid until the date set for the full registration according to paragraph 1 (a) of the same article.
v) The Director of the Asylum Service may, by a decision, set a different duration of the Card’s validity for applicants from a particular country of origin, taking into consideration the expected time lapse for issuing the decision at first instance and if the official EU statistics demonstrate that the percentage for granting international protection to applicants of this particular country during the past two trimesters, is lower than twenty-five per cent (25%).
vi) The Head of the competent Receiving Authority may, with a decision, restrict the validity period of the Card of a particular applicant, especially in case the scheduled personal interview is postponed, the Card is lost, when the decision is to be issued soon, or when a transfer within the scope of Regulation (EU) No. 604/2013 is pending.
vii) The applicant for international protection must obligatorily hand the Card to the competent Receiving Authority when he/she is notified the negative decision on his application, whereby the Card shall cease to be valid. Where the applicant is detained or remains in a Reception and Identification Centre or if the application for international protection is submitted according to the provisions of Article 60, the aforementioned Card is provided following the applicant’s release from detention or after the termination of his/her stay in the Reception and Identification Centre, or after an authorization to enter to the country in accordance with Article 60 point (2). If, having been released from detention, the applicant is not provided with this Card, he/she shall be referred, in writing, to the competent Receiving Authority before which he/she must appear within ten (10) days to declare his/her contact details and be handed the Card. The referral document shall include the applicant’s data and photograph. The authorities competent for the detention of the applicant or the competent Reception and Identification Service authorities shall provide the applicant with the relevant document referring him/her to the competent Receiving Authority. This notification shall take place by an interpreter, in a language the applicant understands, and reference of this fact shall be made in the relevant notification report.
e. They shall be informed of the result of the decision on their application for international protection in a language, which they understand, as well as on the possibility to challenge the negative decision and the relevant time limits. The decision on the application for international protection is issued and notified to the applicant, as promptly as possible, in accordance with the provisions of Article 40 above. In case the applicant is recognized as a refugee, data from the administrative record shall be communicated and copies shall be issued, only on the condition that the applicant demonstrates special lawful interest to that end.
f. They shall have access, either directly or through their advisers, to the information provided from experts on particular issues, such as medical, cultural, religious, linguistic, child-related or their own gender issues.
2. Throughout the examination of an application for international protection, the competent, pursuant to the law, authorities shall recognize and validate the authenticity of applicants’ signature upon demonstration of the Card. In cases of detention or residence in Regional Reception and Identification Services or during the procedure of Article 60, the competent, pursuant to the law, authorities shall recognize and validate the signature of applicants based on the data they have declared.
Article 42
(Article 13 of the Directive)
Obligations of the applicants
1. Applicants are obliged to cooperate with the competent authorities to the extent that this is necessary in order to process their application, including the ascertainment of their identity data. In particular and in all cases applicants shall:
a. appear before the Receiving Authorities in person, without delay, to submit their request for international protection as well as whenever they are summoned, according to the provisions of the present part, before the competent authorities. An application for international protection, a withdrawal of such application, an appeal against a negative decision, a subsequent application and an application to renew the international protection applicant’s Card are submitted in person, unless in cases of force majeure, such as serious illness or serious physical disability which must be proven by a relevant certificate or statement by a public authority. In the cases of force majeure aforementioned, the application shall contain a declaration by the applicant or his/her guardian, legal representative or person entrusted with the applicant’s judicial support that he/she is aware of the conditions set in this paragraph. In any case, the continuation of the examination procedure for an application of international protection is subject to the condition of ascertainment of the existence of the above grounds, as well as the personal appearance of the applicant before the competent receiving authority, in case it is concluded that the above force majeure grounds are of a temporary nature.
b. hand over their travel document and any other document in their possession related to the examination of the application and to data that certify theirs and their family members’ identity, their country of provenance and place of origin, as well as their family status. In cases such documents are delivered- a delivery and receipt note is drafted and a copy thereof is given to the applicant. The submission and the examination of an application for international protection as well as granting international protection status shall not necessarily require the submission of documentary evidence.
c. Promptly inform the competent Receiving Authorities of their address or residence and other contact details, as well as of any changes thereof.
d. Cooperate with the competent authorities in view of every legal research in relation to their application.
e. Accept body search and search of the objects in their possession, and shall be photographed and fingerprinted if they are above the age of 14, according to the provisions in force. A body search of the applicant’s person shall be carried out by a person of the same sex in full respect of the principles of human dignity and physical and psychological integrity.
2. For these obligations and rights provided, according to Article 41, applicants shall be specifically informed in a language they understand; to this end a relevant document shall be drawn thereupon, indicating the language of communication.
Article 43
Applicants’ identity data
1. The applicants’ identity data shall be established by means of their passport, their identity card or birth certificate if they are born in Greece. Other documents may also be accepted, following a relevant decision by the Director of the Asylum Service.
2. In the absence of such documents, the applicants’ data are registered on the basis of their own declaration during the registration of the application for international protection.
3. Identity data may be modified by a decision of the Head of the competent Receiving Authority following a relevant request of the applicant for international protection. The request must be accompanied by the original documents stated in paragraph 1, unless the modification refers to blatant clerical errors or errors in the transliteration from other scriptures into the Latin alphabet, in which case a mere request by the interested person suffices.
4. Exceptionally, data relating to the nationality and place of birth of the applicant can be modified by decision of the Head of the Receiving Authority, following a recommendation by the case-handler, if, during the interview under Article 52, the applicant makes a relevant declaration and it is ascertained that these data have been registered erroneously. Exceptionally, also, identity data can be modified if the applicant, during the interview, provides serious and well-founded reasons as to why s/he initially failed to declare his/her genuine identity. The date of birth can be modified after the age determination procedure under Article 45, unless during the interview it appears that the applicant who is registered as an adult is manifestly a minor; in such cases, a decision of the Head of the competent Receiving Authority, following a recommendation by the case-handler, shall suffice.
5. Whenever the need to modify the data, pursuant to paragraph 4 arises during the examination of an appeal, under Articles 61 and 62 below, the modification shall be made care of the Head of the Coordination Department of the Asylum Service, following a decision of the Appeals’ Committee before which the appeal is pending.
Article 44
(Articles 19 and 23 of the Directive)
Provision of information – Legal representation and assistance
1. Applicants have the right to consult, at their own expenses, a lawyer or other counsellor on matters relating to their applications. Unless otherwise specifically provided for, for specific actions, the applicant’s authorization to a lawyer to represent him/her before the authorities in this part may be given by a simple private document, without the requirement of confirmation of the authenticity of the signature. Authorization by the applicant to other persons requires the confirmation of the signature authenticity.
2. Applicants, following a relevant request, and in the context of the procedures in Chapter C, shall be provided with legal and procedural information free of charge on the procedure concerning their case. Besides the provision of information set in the previous sentence, in the event of a negative decision on an application at first instance, applicants, following a relevant request, shall be provided with a specific updating on the reasons for such decision and the possibility to appeal against it. The information and updating of the previous sentences may be provided by organisations of the civil society.
3. In procedures before the Appeals’ Authority, applicants shall be provided with free legal assistance under the terms and conditions set in the ministerial decision provided for in article 7, paragraph 8 above. In the cases of an application before a court, applicants may receive free legal assistance under the terms and conditions set in law 3226/2004 (OG’ A’ 24), which shall apply accordingly.
4. Lawyers who represent applicants shall have access to the information of their file, on the basis of which the decision is being taken or will be taken, without prejudice to Article 41 par. (1) case (e), third sentence of the present part. Other counsellors, who provide assistance to applicants, shall have access to their files’ data, if these are relevant to the assistance provided. The Head of the competent Receiving Authority may, with a reasoned decision, prohibit the disclosure of information or its sources, if he/she considers that their disclosure may compromise national security, the safety of organizations who provide this information, or the safety of the persons whom this information concern or the country’s international relations. The aforementioned prohibition must not disproportionately restrict the right of the applicant to representation, legal support and defence. Access to this confidential information or sources is, in any case, permitted to the Appeals’ Authority, in the context of the examination of an appeal, and to Courts of law competent for the examination of applications for annulment, as provided in Article 64.
5. Lawyers who represent and counsellors who assist applicants shall have access to the Regional Reception and Identification services under the special conditions of the General Operation Regulation of the Reception and Identification Service. Furthermore, they shall have access to detention facilities and transit zones, in order to communicate with the applicants in a specially arranged area. The access of the aforementioned persons in these areas shall be limited, when this is deemed objectively necessary by the competent authorities for the security, public order or administrative management of the area or the safety of the applicants, provided that the applicant’s right to representation and legal assistance is not restricted or impeded, in particular when lawyers’ and counsellors’ access is excessively restricted or rendered impossible.
6. Lawyers or other counsellors shall have the right to provide any legal assistance to the applicant at all stages of the procedure. Applicants are entitled to attend the personal interview with their lawyer who represents them or the counsellor who provides them assistance. The absence of a lawyer or other counsellor shall not prevent the conduct of the personal interview, as long as this absence is not considered an important reason to suspend.
Article 45
(Article 25 of the Directive)
Applications of unaccompanied minors
1. When an unaccompanied minor lodges an application, the competent authorities shall take action according to par. 1 of Article 19 of P.D. 220/2007 in order to appoint a guardian for the minor. The minor is immediately informed about the identity of the guardian. The guardian represents the minor, ensures that his/her rights are safeguarded during the asylum procedure and that he/she receives adequate legal assistance and representation before the competent authorities. The guardian or the person exercising a particular guardianship act shall ensure that the unaccompanied minor is duly informed in a timely and adequate manner especially of the meaning and possible consequences of the personal interview, as well as how to be prepared for it. The guardian or the person exercising a particular guardianship act is invited and may attend the minor’s interview and may submit questions or make observations to facilitate the procedure. During the personal interview, the presence of the unaccompanied minor may be considered necessary, despite the presence of the guardian or the person exercising a particular guardianship act.
2. The case-handlers who conduct interviews with unaccompanied minors and take relevant decisions shall have the necessary knowledge regarding the special needs of the minors and must conduct the interview in such a way as to make it fully understandable by the applicant, taking in particular account of his/her age.
3. If the guardian or the person exercising a particular guardianship act is a lawyer, the applicant cannot be the beneficiary of free legal assistance, pursuant to Article 44 paragraph 3, first indent.
4. The competent Receiving Authorities may, when in doubt, refer unaccompanied minors for age determination examinations according to the provisions of the Joint Ministerial Decision 1982/16.2.2016 (O.G. B’ 335). When such a referral for age determination examinations is considered necessary and throughout this procedure, attention shall be given to the respect of gender-related special characteristics and of cultural particularities. Attention shall also be given so as:
a. a guardian for the minor is appointed who shall undertake all necessary action in order to protect the rights and the best interest of the minor, throughout the age determination procedure;
b. unaccompanied minors are informed prior to the examination of their application and in a language which they understand, of the possibility and the procedures to determine their age, of the methods used therefore, the possible consequences of the results of the above mentioned age determination procedures for the examination of the application for international protection, as well as the consequences of their refusal to undergo this examination;
c. the unaccompanied minors or their guardians consent to carry out the procedure for the determination of the age of the minors concerned;
d. the decision to reject an application of an unaccompanied minor who refused to undergo this age determination procedure shall not be based solely on that refusal and
e. until the completion of the age determination procedure, the person who claims to be a minor shall be treated as such.
5. If after the age determination procedure, it does not transpire with certainty that the applicant is an adult, he/she shall be treated as a minor.
6. The fact that an unaccompanied minor has refused to undergo a medical examination shall not prevent the Decision Authorities from taking a decision on his/her application.
7. Applications for international protection of unaccompanied minors shall always be examined under the regular procedure.
8. Ensuring the child’s best interest shall be a primary obligation when implementing the provisions of this article.
Article 46
(Article 26 of Directive 2013/32 (EU) and 8-11 of Directive 2013/33 (EU)
Detention of applicants
1. An alien or stateless person who applies for international protection shall not be held in detention for the sole reason that he/she has submitted an application for international protection, and that he/she entered irregularly and/or stays in the country without a legal residence permit.
2. An alien or a stateless person who submits an application for international protection while in detention according to the relevant provisions of Laws 3386/2005 (O.G. A’ 212) and 3907/2011 (O.G. A’ 7) as in force shall remain in detention, exceptionally and if this is considered necessary after an individual assessment under the condition that no alternative measures, such as those referred to in article 22 paragraph 3 of Law 3907/2011 can be applied, for one of the following reasons:
a. in order to determine his /her identity or nationality, or
b. in order to determine those elements on which the application for international protection is based which could not be obtained otherwise, in particular when there is a risk of absconding of the applicant, as defined in article 18 point (f) of Law 3907/2011, or
c. when it is ascertained on the basis of objective criteria, including that he/she already had the opportunity to access the asylum procedure, that there are reasonable grounds to believe that the applicant is making the application for international protection merely in order to delay or frustrate the enforcement of a return decision, if it is probable that the enforcement of such a measure can be effected;
d. when he/she constitutes a danger for national security or public order, according to the reasoned judgment of the competent authority of point 3 of this Article, or
e. when there is a serious risk of absconding of the applicant, pursuant to Article 2 point (n) of Regulation (EU) No 604/2013 of the European Parliament and of the Council of 26 June 2013 according to the criteria of Article 18 point (f) of law 3907/2011 which apply respectively and in order to ensure the enforcement of a transfer decision according to the above Regulation.
3. The detention order shall be taken by the respective Police Director and, in the cases of the General Police Directorates of Attica and Thessaloniki, by the competent Police Director for Aliens matters and shall include a complete and comprehensive reasoning. In cases (a), (b) (c) and (e) of paragraph 2 of this Article the detention order is taken upon a recommendation of the Head of the competent Receiving Authority.
4. a. The detention of applicants for international protection shall be imposed for the minimum necessary period of time. Delays in administrative procedures that cannot be attributed to the applicant shall not justify a continuation of detention.
b. The detention of applicants on the grounds mentioned in points (a), (b) and (c) shall, initially, not exceed 45 days and can later be prolonged by a further 45 days, as long as the recommendation of paragraph 3 is not recalled.
c. The detention of applicants for international protection on the grounds of points (d) and (e) shall not exceed three (3) months.
d. In any case, and independently of whether the time limits for points (d) and (e) above have been completed or not, the total detention period may not exceed in any case the maximum time limits for detention, as they are foreseen in Article 30 of Law 3907/2011.
5. The initial detention order and the order for the prolongation of detention shall be transmitted to the President of the Administrative Court of First Instance, or the judge appointed by this former, who is territorially competent for the applicant’s place of detention and who decides on the legality of the detention measure and issues immediately his decision, in a brief record, a copy of which he/she immediately delivers to the competent police authority. In case this is requested, the applicant or his/her legal representative must mandatorily be heard in court by the judge. This can also be ordered, in all cases, by the judge. In this case, the provisions of paragraph 3 and subsequent paragraphs of Article 76 of Law 3386/2005 shall apply respectively. The aforementioned procedure shall not restrict the possibility of the applicant to raise objections against the detention order or the order to prolong the detention period, pursuant to the provisions of the following Article.
6. Applicants in detention, according to the above paragraphs, have the rights to appeal and submit objections as foreseen in paragraphs 3 and subsequent of Article 76 of Law 3386/2005, as in force.
7. Detainees who are applicants for international protection shall be entitled to free legal assistance and representation to challenge the detention order according to the provisions valid for third country nationals in detention, according to the provisions set in law 3226/2004 (O.G. A’ 24) which apply accordingly.
8 . The detention of an applicant constitutes a reason for the acceleration of the asylum procedure, taking into account possible shortages in adequate premises and the difficulties in ensuring decent living conditions for detainees. These difficulties, as well as the vulnerability of applicants, as per Article 14 paragraph 8 above shall be taken into account when deciding to detain or to prolong detention. When an alien or stateless person applies for international protection while in detention, the Head of the competent Receiving Authority and/or the Administrative Director of the Appeals Authority shall be immediately informed and shall ensure the prioritized examination of the application or the appeal.
9. Applicants are detained in detention areas as provided in Article 31 of Law 3907/2011.
10. In cases of detention of applicants, the competent authorities, without prejudice to the international and national legal rules on detention, shall apply the following as per case:
a. They shall ensure that women are detained in an area separately from men as well as the due respect for the privacy of families in detention.
b. They shall avoid the detention of minors. Minors who have been separated from their families and unaccompanied minors shall not be detained, as a rule. Only in very exceptional cases, unaccompanied minors who applied for international protection while in detention according to the relevant provisions of Law 3386/2005 and Law 3907/2011, may remain in detention, as a last resort solution, only to ensure that they are safely referred to appropriate accommodation facilities for minors. This detention is exclusively imposed for the necessary time for the safe referral to appropriate accommodation facilities and cannot exceed twenty-five (25) days. When, due to exceptional circumstances, such as the significant increase in arrivals of unaccompanied minors, and despite the reasonable efforts by competent authorities, it is not possible to provide for their safe referral to appropriate accommodation facilities, detention may be prolonged for a further twenty (20) days. Minors who have been separated from their families and unaccompanied minors shall be detained separately from adult detainees. When minors are detained, they shall be given the possibility to occupy themselves with activities, including games and recreational activities appropriate for their age.
c. They shall avoid detaining women during pregnancy and for three (3) months after labour.
d. They shall provide detainees with the appropriate medical care.
e. They shall ensure the right of detainees to legal representation.
f. They shall ensure that detainees are informed in a language they understand of the reasons and the duration of their detention, their right and means to challenge the detention decision and their right to free legal assistance.
11. When the reasons set out in paragraph 2 justifying detention of the applicant cease to exist, the authorities which ordered the detention, with a reasoned decision, shall release the applicant and inform without delay the Receiving Authorities or the Appeals Authority, if the application is pending before the second instance.
Article 47
(Articles 27 and 28 of the Directive)
Withdrawal of the application
1. The applicant may withdraw his/her application throughout the duration of the procedure, if he/she submits a written statement before the competent Receiving Authorities and hands over the International Protection Applicant’s Card. For the confirmation of the withdrawal, a relevant record shall be drafted in the presence of an interpreter, who shall confirm the accuracy of its content, while the applicant is informed of the consequences of the withdrawal and the fact that he/she has to leave the country if he/she is not holding a residence permit, he/she receives a copy of the withdrawal record and the case shall be filed by the competent Receiving Authority. The same procedure shall also apply when an applicant who has only had a simple registration as per article 36, paragraph 1 (b) above declares that s/he does not wish to have a full registration of his/her application for international protection.
2. When there is reasonable cause to consider that an applicant has implicitly withdrawn his/her application, the Decision Authorities shall discontinue the examination of the application with a relevant act and file the case. The abovementioned acts shall be notified to the applicant, by post to the most recent address declared by him/her. If no such address has been declared, the above decisions shall not be notified.
3. Am implicit withdrawal shall be considered to exist, when it is concluded that the applicant, without justifying that this is caused by circumstances independent of his/her will:
a. did not respond to calls for the provision of information of significant importance for his/her application as per Article 4 of P.D. 141/2013 (O.G. A’226) or
b. was not present in the personal interview or hearing before the Appeals Authority, as foreseen by Articles 52 and 62, despite the fact that s/he was lawfully summoned and without indicating plausible reasons for his/her absence or
c. Escaped from the location where s/he was detained or did not comply with the alternative measures imposed or
d. departed from the location where he/she was residing, without asking for permission or informing the competent authorities, as long as he/she has an obligation in that regard, or left the country without receiving the permission of the competent Receiving Authority or
e. did not comply with his/her obligations under Article 42 point (1) cases (b) and (c) , or any other obligation to communicate, or obligation to deliver a document that s/he evidently possesses or should have at his/her possession and can deliver or
f. did not appear to renew his/her Card, at the latest the next working day after its expiration.
4. Applicants against whom a discontinuation act or a decision to file the application has been issued following a withdrawal have the right, within 9 (nine) months from the date of the discontinuation act or submission of the withdrawal to request from the authority which took the decision, to continue the examination of his/her case. Until the final decision on the above application, the applicant shall not be deported from the country nor shall a return decision be executed. The applicant may ask only once for the continuation of the examination of his/her case.
5. An application for international protection submitted after 9 (nine) months from the date of publication of the discontinuation act or the submission of the withdrawal shall be treated in accordance with the provisions on subsequent applications referred to in Article 59.
6. In cases of transfer of applicants in the country, within the scope of Council Regulation 604/2013 of the European Parliament and of the Council, any interruption decisions issued pursuant to parαgraph 2 shall be automatically revoked and the examination procedure of the application shall continue.
Article 48
(Article 29 of the Directive)
The role of the United Nations High Commissioner for Refugees
1. The decisions taken on applications for international protection at first and second instance, as well as all decisions withdrawing or annulling the refugee or subsidiary protection beneficiary status, shall be notified to the Office of the United Nations High Commissioner for Refugees in Greece, if the applicant or beneficiary of international protection consents to this.
2. The United Nations High Commissioner for Refugees:
a. May present its views or provide supplementary information to the competent Receiving Authorities.
b. Shall have access to information on individual applications for international protection, on the progress of the procedure and the decisions taken, if the applicant consents to this.
c. Shall have access, through its representatives, to the Regional Services of the Reception and Identification Service, to detention areas and correctional institutions, and also to transit zones of airports or ports, where applicants or persons in need of international protection are detained or reside. To ensure confidentiality of the communication between the applicants and the aforementioned representatives, an appropriate area shall be made available by the competent receiving or detention authority. The aforementioned right of access shall also be provided to organisations which act, based on a specific agreement, on behalf of the Office of the United Nations High Commissioner for Refugees in Greece.
d. Shall present its views, in the exercise of its activities, under Article 35 of the Geneva Convention, before the competent authorities, regarding applications for international protection at any stage of the procedure.
3. The United Nations High Commissioner for Refugees shall be provided with statistical data that allow effective completion of its tasks, as foreseen in Article 35, paragraph 2 of the Geneva Convention.
4. In the framework of the operation of the Asylum Service, the United Nations High Commissioner for Refugees may attend the interviews of applicants for international protection, submit advisory opinions so as to assist the Asylum Service in the exercise of its competence and monitor the quality of the asylum procedure at first and second instance of administrative examination. The details of the above cooperation and assistance shall be regulated in relevant Memoranda of Cooperation concluded between the Director of the Asylum Service and the United Nations High Commissioner for Refugees.
Article 49
(Article 30 of the Directive)
Confidentiality
For the purposes of examining international protection applications, all competent authorities are required to:
a. Not disclose information regarding individual applications or the fact that an application has been submitted, to the alleged actors of persecution or of serious harm of the applicant.
b. Not to request information by the alleged actors of persecution or of serious harm of the applicant in a manner that would result in direct or indirect disclosure of the fact that the applicants has submitted a claim and would jeopardize the physical integrity of the applicant and his/her dependents or the liberty and security of his/her family members still living in the country of origin.
Article 50
(Article 24 of the Directive)
Applicants in need of special procedural guarantees
1. The Receiving Authorities shall assess within a reasonable period of time after an application for international protection is made, or at any point of the procedure the relevant need arises, whether the applicant is in need of special procedural guarantees, especially when there are indications or claims that he/she is a victim of torture, rape or other serious forms of psychological, physical or sexual violence.
2. When it is assessed that applicants have been identified as in need of special procedural guarantees, they are provided with adequate support in order to allow them to benefit from the rights and comply with the obligations of this part throughout the duration of the procedure. Applications for international protection from persons in need of special procedural guarantees shall always be examined under the regular procedure.
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