Decision 805/2018

CoS Judgements 805/2018 and 806/2018

[…]  the Court was called to rule on two applications for annulment against the Decision ( οικ./10464/31.5.17 - OJ Β΄1977) of the Director of the Asylum Service by which a restriction of freedom of movement (geographical limitation) was imposed to all applicants who have entered to the islands of Chios, Rhodes, Lesvos, Kos, Leros and Samos after the 20.3.2016. Applications for annulment were submitted by a.) The Bar Associations of 5 islands (Chios, Rhodes, Lesvos, Kos-also representing lawyers of Leros- and Samos) and b.) The Greek Council for Refugees. 

The Court issued two judgements on the 17 April 2018 on the above applications for annulment but only one of the judgments (805/2018) rules on the issue, as the second (806/2018) rules that there is no need to adjudicate ("καταργεί τη δίκη"). More specifically:

CoS Judgement 805/2018 (application for annulment by the Greek Council for Refugees). The Court accepted that the provision of art. 41 par. 1 (d) (cc) of L. 4375/2016 which constituted the legal basis for the Decision of the Director of the Asylum Service on the restriction of movement, is in accordance with the Constitution. Furthermore, the Court ruled that above provision should be interpreted under a.) the light of art. 31 par. 2 of the Geneva Convention which imposes to States to apply the necessary restrictions on the movements of refugees until their status is regularized, b) the provisions of art. 6,18 and 52(1) of the EU Charter of Fundamental Rights which impose that any restrictions to freedom should only be imposed when necessary and according to public interest and c.) of art. 7 par. 1 of Directive 2013/33/EU which allows for the imposition of restrictions (not deprivation) of the freedom of movement of asylum seekers. For the provision of art. 41 par. 1 (d) (cc) of L. 4375/2016 to be in accordance with the Constitution it is not required that specific criteria to be fulfilled are mentioned in the law, under the condition that the provision serves a purpose of public interest, in full respect of the principle of proportionality.  

The Court also accepts that the provision of art. 41 par. 1 (d) (cc) of L. 4375/2016 provides for the issuance of a regulatory act and not for the issuance of individual administrative acts (rejecting the opposite claim posed by the GCR and the Bar Associations). In this sense the act of the administration to be issued needs not to contain full reasoning, but needs to contain the elements that are necessary for the control of the justification for its issuance, by the Courts. Since the reasons for which the decision was issued, which dictate the imposition of the restriction of movement, are not evident from the text of the decision of the Director (e.g. the public interest served by the issuance of the decision: the application of the EU Turkey Statement, the management and allocation of the refugee population in Greece etc.) the Court annulled the Decision of the Director of the Asylum Service on the restriction of the freedom of movement.

Furthermore, the Court, taking under consideration a.) the reason for which the decision is annulled b.) the large number of applicants for international protection on the islands and c.) the difficulties which the Administration would face in case the decision was annulled retrospectively, rules that the decision should have effect from the previous day of its publication [the decision was published on the 17.4.2018, so this means  that it is effective from the 16.4.2018]

CoS Judgement 806/2018 (application for annulment by the Bar Associations). The Court ruled that there is no need to adjudicate ("καταργεί τη δίκη") as the challenged act (the Decision by the Director of the AS on the geographical restriction) was already annulled by decision 805/2018 (both decisions were published on the same day, 17.4.2018). Nevertheless, the Court acknowledged that the applicants (the Bar Associations) would not possibly be in the position to know of that fact at the time of the hearing (which was on the 27 of February) so it does not impose legal costs to them. These costs are imposed to the Administration.

It has to be noted that the Bar Association of Rhodes was not finally represented during the hearing. As a result the application for annulment, in what concerned the Bar Association of Rhodes, was rejected as inadmissible (costs were imposed).