On 20 March 2014, Legal Opinion 44/2014 of the State Legal Council of 11 February 2014 was published, which concerns persons who are already in detention on the basis of a return order, and whose removal cannot be carried out because of their lack of cooperation. The Legal Opinion allows for those persons to be asked, shortly before the expiry of the maximum period of 18 months of detention, to depart voluntarily to the country of return. If the person fails to cooperate and there is a risk of absconding, the authorities can issue a new detention order without a specified time limit. Thus, the person will be required to stay in the detention centre until the moment he or she cooperates with his or her return.1 Although not public, a Ministerial Decision of 28 February 2014 seems to endorse the Legal Opinion as it is explicitly referred to in the first individual decisions applying such continued detention beyond 18 months (…)
Such practice, as well as the Ministerial decision, as far as it endorses the Legal Opinion is in clear violation of Article 15(6) of the EU Returns Directive as interpreted by the Court of Justice of the European Union (CJEU – C-357/09, PPU Said Shamilovich Kadzoev (Huchbarov)).
The Court’s ruling is clear and allows no exceptions to the maximum duration of detention for the purpose of removal under any circumstances. Any contrary interpretation, opinion or ministerial decision is a direct infringement of EU law and the national law transposing it. (…)
ECRE, GCR and Aitima strongly urge the Commission to raise these concerns with Greece; to call for the immediate withdrawal of the Ministerial Decision insofar as it endorses the illegal practice of detention beyond the maximum period of 18 months as well as any individual decisions taken in violation of the EU Return Directive; and launch an infringement procedure should no immediate action be taken by Greece to stop such breaches of EU law.
Read the whole letter to Cecilia Malmström here (in English)