Greek case

AEAJ conference on 12 – 13 November 2009 in Palermo

Access to administrative justice in order to seek fundamental rights

Greek case : Petition for annulment of a deportation decision of alien

1.Facts

The applicant, Albanian citizen , who was living in Greece, was arrested in 8th of September 2003, in Patras, for violation of articles 50 par. 1 and 54 par.7 of national law no 2910/2001 (attempt of leaving the country illegally by way of using spurious travel documents). The Chief of Police of Achaia’s Prefecture issued an act ordering the deportation of the applicant. The applicant filed a petition for annulment before the Administrative Court of First Instance of Patras, seeking the annulment of the deportation decision as illegal, on the grounds that the fact that he was a parent of a native minor has not been considered. On the other hand the administration argued that the act above is legal because the applicant has violated the referred law.

2.Legal framework

Ι.IC Law : European Convention – Human Rights

Art. 8 of the European Convention for the protection of the human rights and fundamental freedoms signed on 4th November 1950 and ratified by Greek law no 53/1974.
Article 8 – Right to respect for private and family life
«1. Everyone has the right to respect for his private and family life, his home and his correspondence.»
«2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.».

ΙΙ. Greek Constitution
Art. 9 and art. 22 par.1 that protect personal and family life and childhood.
Article 9
“1. Every person’s home is a sanctuary. The private and family life of the individual is inviolable. No home search shall be made, except when and as specified by law and always in the presence of representatives of the judicial power.”.
Article 22
“1. Work constitutes a right and shall enjoy the protection of the State, which shall seek to create conditions of employment for all citizens and shall pursue the moral and material advancement of the rural and urban working population.
All workers, irrespective of sex or other distinctions, shall be entitled to equal pay for work of equal value.”
III.National Law
No 2910/2001 entitled “Entry and stay of aliens in Greek territory, acquisition of Greek citizenship by naturalisation and other provisions”
art. 44 par.1 : “ The administrative deportation of an alien is allowed : a…b.if anyone has violated the provisions of this law”
Art. 46 : “ Is forbidden the deportation in case the alien : a. is minor and its parents are residents of the country and they have a residence permit. b. is parent of a native minor which exercises parental care or he is obligated to maintenance it…”, par.2 : “ The deportation is allowed in cases above, when the foreigner is dangerous for the public security , public order or public health”

Greek case solution

The Administrative Court of First Instance of Patras having considered the provisions of article 46 of the abovementioned law, according to which the deportation of an alien (/ foreigner) is forbidden, if the latter is a parent of a native child, who exercises parental care, which are interpreted in accordance with articles 9 par.1 and 22 par.1 of the Greek Constitution, that protect personal and family life and childhood, as well as in the light of the provisions of article 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms of Rome, has held that the Administration may not deport a foreigner, parent of a greek minor, of which he exercises parental care as well as the right of communication, unless specific and imperative reasons of public interest occur, (such as public security), and for this reason held that the decision is illegal and, therefore, annulled it.

Maria Vlachou
Judge of Administrative Court of first instance
Greece