Greece - Α 190/2018, 27 March 2018

Country of Decision:
Country of Applicant:
Date of Decision:
13-04-2018
Citation:
A 190/2018
Court Name:
Administrative Court of Appeal, Administrative Court of Appeal of Piraeus – Section A2 Annulments
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Headnote: 

The case concerns an application for the annulment of the decision of the Appeals Committee which rejected the applicant’s previous application to overturn the decision of the Regional Asylum Office of Samos whereby he was denied international protection. The Court determined that the case was inadmissible, accepted the relevant justifications given by the Appeals Committee and rejected the application. 

Facts: 

The applicant, national of Syria, entered Greece through Turkey and submitted an application for international protection.

The applicant accepted (in a written and signed manner) and agreed with the content of his application form and was informed about his obligations and rights regarding the remainder of the process.  His application was assessed under the accelerated procedure. The applicant was informed that the interview is part of the examination of the admissibility of his case. He was asked if he had any questions related to the procedure and he confirmed that he understood.

During the personal interview, amongst other things, the applicant said that his brother lives in Germany. He stated that he is not dependant in any way to him. He stated that his final destination was not Turkey and that he always intended to reach Germany. Following the interview, his application was rejected as inadmissible based on the justification that Turkey can be characterized as the ‘first country of asylum’ or a ‘safe-third country’ for the particular applicant. The applicant appealed that decision and is now contesting the outcome of his appeal. 

Decision & Reasoning: 

The Court affirmed the decision of the 3rd Independent Appeals Committee that Turkey is a safe third country for the particular applicant. It rejected all arguments to the contrary along with those against the suitability of the procedure. As a result, the Court held that Committee was right to reject the appellant’s application for international protection as inadmissible since Turkey was to be considered as the first country of asylum.

According to the Council of State judgement no 2348/2017, the application of the expedited process does not require a prior decision by the Council of the European Union which confirms the mass influx of displaced third-country nationals to the MS territory. Therefore, the Administrative Court of Appeal (the Court) rejected the argument that the use of the expedited process was unjustified and unsuitable for the individual circumstances as unfounded. Moreover, the applicant’s argument that the use of the expedited process constituted , in the light of the individual’s circumstances, discriminatory treatment against him was also considered unfounded, since all procedural guarantees during the examination of the admissibility of his case were upheld. In addition, the Court rejected the claim that the procedure was incomplete at first instance. Subsequently, the court also rejected the claim that there was a violation of European Union and national law regarding the right to a hearing since it is left to the discretion of the Appeals Committee to determine whether there are sufficient grounds to warrant a hearing. On the facts of the case, the committee was right to decide that there was no reason for a further hearing. 

The appellant initially applied for family reunification with his brother, who was lawfully residing in Germany, for humanitarian reasons. Referencing Articles 16 and 17 of the Regulation, the Court stated that the appellant, even though he had expressed his will, had failed to prove during the initial interview that he was dependent to his brother. Mindful of the fact that the Committee had refused the appellant the characterization as a vulnerable person, the Court held that the committee was able to, and rightly did, silently dismiss the appellant’s request for family reunification. As a result, the claim for annulment based on the committee’s failure to examine the request was also dismissed since it was up to the discretion of the committee to either submit or not submit a request for reunification with the German authorities and that the burden of proof fell on the appellant. Given that the appellant had failed to prove his dependency, there were no circumstances which would justify the use of this discretionary power of the committee.

In accordance with Article 54 of Law 4375/2016, the Court stated that the Appeals Committee was correct to declare the application inadmissible after deciding that Turkey is a safe third country for the applicant. The appellant claimed that the decision of the Committee should be annulled because the determination of Turkey as a safe third-country was conducted under the light of the EU – Turkey Joint Statement which was lacking a binding legal basis. The Court highlighted that the Committee erred indeed in accepting said statement as legally binding; however, this was immaterial since the determination of Turkey as a safe third-country was reached under the operation of Articles 54 and 56 of the 4375/2016 Act. The presumption that the safety of the third country was assessed on the basis of the Joint Statement was false. Neither Directive 2013/32/EU nor Law 4375/2016 prohibit the consideration of diplomatic assurances and letters when determining the safety of a third country for the particular circumstances of the individual. Accordingly, the Court found no ground for annulment.

Lastly, the Committee had also rejected the claim that the applicant’s life and freedom would be in jeopardy in case he were returned to Turkey due to the prevalent circumstances after the failed coup attempt on the 15th of July 2016. The Court stated that, given the individual circumstances of the appellant, the current situation did not affect the legitimacy of the decision of inadmissibility since there were no indications that he would be a person of ‘particular interest’ to the Turkish authorities. The Court also dismissed the appellant’s contention that the Committee’s decision on the matter was ill-justified insofar as it purported that the guarantees in Turkey were equivalent to those provided by the Geneva Convention. The Court emphasized that (a) the temporary character of the status  which does not necessarily result to the involuntary return of the individual to his home country, and (b) the provision of safeguards in the Geneva Convention (as guaranteed by EU and national law) does not preclude the imposition of limitations to the protections.

Outcome: 

Application denied 

Case Law Cited: 

Council of State 2348/2017

Council of State 197/2016