Greece – Council of State, 31 December 2008, 4056/2008

Country of Decision:
Country of Applicant:
Date of Decision:
31-12-2008
Citation:
Council of State 4056/2008
Additional Citation:
http://www.unhcr.gr/prostasia/nomiki-prostasia/o-nomos-stin-ellada.html
Court Name:
The Council of State, Chamber D
National / Other Legislative Provisions:
UNCRC - Art 3(1)
UNCRC - Art 22
Greece - Προεδρικό Διάταγμα 61/1999 (Presidential Decree) Art 1(4)
Greece - Προεδρικό Διάταγμα 61/1999 (Presidential Decree) Art 8
Greece - Προεδρικό Διάταγμα 61/1999 (Presidential Decree) Art 3(5)
Greece - Προεδρικό Διάταγμα 61/1999 (Presidential Decree) Art 2(6)
Greece - Άρθρο 1 του ν. 2101/1992 (Art 1 of Act 2101/1992)
Greece - Άρθρα 24 του ν. 1975/1991 (Art 24 of Act 1975/1991)
Greece - Σύμβαση της Γενεύης 1951 Νομοθετικό Διάταγμα 3989/1959 (Geneva Convention 1951 Legislative Decree)
Greece - Αναγκαστικός Νόμος 389/1968 (Φύλλο Εφημερίδας Κυβερνήσεως 125 Τεύχος Α) (Emergency Act)
Greece - Άρθρο 72 περ. α’ του ν. 2910/2001 (Art 72(a) of Act 2910/2001)
Greece - Άρθρα 2 του νόμου 2452/1996 (Art 2 of Act 2452/1996)
Greece - Άρθρα 25 παρ. 1 του ν. 1975/1991 (Art 25(1) of Act 1975/1991)
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Headnote: 

This case concerned fear of persecution for reasons of race and membership of a particular social group. The provisions of Article 1(4) of Presidential Decree 61/1999, which should be interpreted with reference to Articles 3 and 22 of the Convention on the Rights of the Child, recognize the special circumstances of asylum applications submitted by unaccompanied minors, for whom special procedural guarantees have been established.  When examining asylum applications submitted by unaccompanied minors one must consider the Applicants' maturity and level of mental development; take into account the fact that they may have a limited knowledge of the prevailing situation in their country; and also bear in mind that their ways of expressing their fears may differ from those of adults. Particular emphasis is given to the existence of objective factors, based on which one can assess the existence of a well-founded fear that unaccompanied minors may be persecuted in their own country. The contested decision is annulled for insufficient reasoning because there is no evidence in the file that the Administration took care to ensure that a special temporary representative was appointed for the unaccompanied minor, and there is no reference in the report to there having been an oral assessment to determine the level of his mental maturity. 

Facts: 

Application by K. R. for annulment of a decision by the Minister of Public Order

 

The Applicant, a citizen of Afghanistan, illegally entered the country in November 2001, via the island of Kos, arriving from Turkey. He was arrested by Kos Coast Guards and was transferred to the Aliens Department in Thessaloniki where, on 3.12.2001, he submitted an application for recognition of refugee status, citing a fear of persecution because of his race and his religion. More specifically, the Applicant – who was 15 at the time of submitting his application for asylum – told the competent Administrative bodies that he belongs to the Hazara tribe and that he is a Shiite Muslim. Furthermore, he claimed that he was forced to leave Afghanistan when he was 13 years old because of the civil war, given his race and the religious and political problems which prevailed in the country and which made it difficult to find employment. The asylum application was rejected by decision number 95/41971/9.8.2002 of the General Secretary of the Ministry of Public Order, and the Applicant appealed against this on 17.9.2002. Before the Advisory Committee formed pursuant to Article 3(5) of Presidential Decree 61/1999 the Applicant repeated his claims about his race; he stated that he was living in the Juvenile Asylum Seekers' Hostel run by the National Youth Institute in Anogeia, Crete, where he was taking certain lessons; and he asked, additionally, to be given temporary leave to stay in the country on humanitarian grounds. The Committee, after giving a majority ruling that the conditions for recognition of refugee status and granting asylum under the 28.7.1951 Convention had not been met in the case of the Applicant, expressed a wish that he be allowed to remain in the country temporarily on humanitarian grounds. Next, in his contested decision 9135/41971/5.3.2004 which has already been appealed against, the Minister for Public Order rejected the Applicant's appeal and gave him a three-month deadline in which to leave the country voluntarily. On 8.6.2004 the Applicant submitted an application for relief to the Minister for Public Order, seeking a review of his case. Pursuant to that application, the Immigration Department of the Security and Order Branch of the Ministry of Public Order issued Order no. 95/41971-352893/9.7.2004 which, regarding the Applicant's request to be allowed to remain in the country temporarily on humanitarian grounds, referred specifically to the previous rejection of the application by the Minister for Public Order's above-mentioned decision.  The Applicant submitted a further application to the General Secretary for Public Order requesting a review of his application to be placed under the special humanitarian status of Article 8 of Presidential Decree 61/1999, pursuant to which a similar Order (95/41971-514723/24.9.2004) was issued, according to which the Applicant's renewed application was an abuse of procedures and did not require any response. 

Decision & Reasoning: 

The Council of State cited the relevant Articles of international, European and domestic legislation which relate to asylum applications by unaccompanied minors, both mandatory provisions and ones of a non-binding nature which, nevertheless, recognize that this particular category of asylum seekers is special and that special procedural guarantees have been established for them. The Council of State pointed out that this special treatment consists not only of ensuring that minors have the proper representation and guidance through the asylum procedure, but also of compliance with certain guiding principles when examining the merits of the case. In particular, when examining asylum applications submitted by unaccompanied minors, one must consider the Applicants' maturity and level of mental development; take into account the fact that they may have a limited knowledge of the prevailing situation in their country; and also bear in mind that their ways of expressing their fears may differ from those of adults. The Council of State took into consideration the fact that, when he submitted his initial application for recognition as a refugee, the Applicant was 15 years old and was not accompanied by his parents or any other guardian. The Council of State held that, based on the evidence in the file, the Administration did not take care to ensure that a special temporary representative was appointed for the Applicant; and that there is no reference in the 4.12.2001 report on the oral examination to there having been an assessment by the body to determine the level of his mental maturity. Furthermore, during the administrative examination procedure the Applicant cited his race (Hazara), his religion (Shiite Muslim) and the prevailing situation in his country, in order to establish that there was a fear of persecution should he return to Afghanistan; and he made a subsidiary request to be given temporary leave to stay in the country on humanitarian grounds.

The Council of State accepted that the Applicant, before the Administration, had cited the existence of objective factors which, considering what was common knowledge about the prevailing situation in Afghanistan at the time the contested decision was issued, were in themselves sufficient to establish grounds for the application for asylum; and given that, in any case, recognition of a foreigner as having refugee status does not require evidence that he has been subjected to individual persecution, it is sufficient to establish an objective and well-founded fear of persecution. Regarding the Applicant's pleas for protection on humanitarian grounds, even though the Council of State recognized that they were vague, it held that the Administration ought, taking into consideration the special circumstances of the case, to have examined whether the Applicant was justified in citing the existence of the said objective factors. Furthermore, the Council of State held that the Administration's reasoning for the rejection was insufficient and that it did not comply, in this case, with the required special procedural guarantees. On the contrary, the Administration should have interpretedthe true sense of the Applicant's claims, and specifically investigated whether the latter would be at risk of persecution should he return to Afghanistan, given the prevailing conditions in that country, because of his race origin, his religion, and also, maybe, membership of a particular social group (young male Hazara), in order to judge if there was a prima facie case for recognizing the Applicant's refugee status or, otherwise, if it was possible to grant him a temporary residence permit on humanitarian grounds. Because of the insufficient reasoning, which had justifiably been challenged, the Council of State accepted the application, annulled the contested decision, and referred the case back to the Administration for a new hearing. 

Outcome: 

The Council of State upheld the application.

 

It annulled decision no. 9135/41971/5.3.2004 by the Minister for Public Order and referred the case back to the Administration for a new hearing.

 

It ordered the court fees to be returned.

 

It ordered the State to pay the Applicant's legal costs. 

Subsequent Proceedings : 

The case was referred back to the Administration (Minister for Public Order)

Case Law Cited: 

Greece - Council of State, 2666/2006