Greece - Appeals Committee, 23 September 2015, 10738

Country of Decision:
Country of Applicant:
Date of Decision:
23-09-2015
Citation:
10th Appeal Committee’s decision (Doc. Ref: 10738/2015)
Court Name:
Appeals Committee
National / Other Legislative Provisions:
Greece - Presidential Decree 141/2013 - Art 2
Greece - Presidential Decree 141/2013 - Art 4
Greece - Presidential Decree 141/2013 - Art 9
Greece - Presidential Decree 141/2013 - Art 10
Greece - Presidential Decree 141/2013 - Art 15
Greece - Presidential Decree 141/2013 - Art 17
Greece - Law 4251/2014 - Art 139
Greece - Refugee Law 114/2010 - Art 28
Greece - Law 1782/1988
Greece - Law 3907/2011- Art 24
Greece - Presidential Decree 113/2013 - Art 17
Greece - Presidential Decree 113/2013 - Art 22
Greece - Presidential Decree 113/2013 - Art 23
Greece - Presidential Decree 113/2013 - Art 25
Greece - Presidential Decree 113/2013 - Art 26
Greece - Presidential Decree 113/2013 - Art 33
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Headnote: 

Whilst the Appeals Committee believes that the applicant was ‘wronged’ during the administrative procedures in the First and Second Degree (pursuant to Decree 113/2013), the Committee is unable to request a new personal interview, because no such provision exists within the national legislation (Regulation Service of Authority and Appeal 339/2013 opinion of the Legal Council).

Facts: 

The applicant was of Muslim faith, a citizen of Burkina Faso and had been detained in N. Greece before he applied for international protection. During the examination of his application in the First Degree (ar.17, paragraph. 1 PD 113/2013), the asylum seeker claimed that he mainly speaks the dialect Bisha and can understand French poorly. The personal interview was then conducted in French, with the assistance of an interpreter, where it was instantly evident that the applicant could not adequately comprehend the questions. The interpreter informed the interviewer, but she disregarded this fact, which resulted in significant information deficiencies regarding the applicant’s claim that she did not later clarify. Consequently, the interviewer found the applicant’s answers to be “vague, undefined, and unclear”. The applicant appealed this decision.

During the examination of the claim in the Second Degree (the appeal), the rapporteur disregarded the applicant’s inability to adequately understand French, and submitted a written proposal before the Committee, claiming that the elements of the appeal were “unclear, vague and contradictory”. He added that the appellant had not introduced any new information, apart from the traumatic experience suffered in the detention centre in N. Greece, which he found to be arbitrary information. The Committee examined the appeal in absentia (according to first subparagraph, paragraph. 4 Ar. 26 PD 113/2013), since the applicant did not attend. 

Decision & Reasoning: 

The Committee held that the applicant satisfied the subjective element of the well-founded fear (Article 1A (2) of the Geneva Convention 1951), by being unwilling to return to Burkina Faso and by filing for asylum in Greece. Furthermore, the Committee accepted the applicant’s religion, nationality and race as credible information. The Committee also accepted the «broken state of mental and spiritual health of the applicant», which deteriorated on account of his detention. His impaired mental health was fully evidenced by the abundance of medical records that the applicant produced.

The Committee held that the applicant did not satisfy the objective element of the well-founded fear, because he had not claimed any discrimination or threat  as is requested by the interpretation of the term ‘persecution’ in Art. 33 of the Geneva Convention of 1951 and UNHCR Manual, par. 51. By not satisfying the required conditions set in the Geneva Convention 1951, the Committee could not confer refugee status on the asylum seeker. Nonetheless, «given the serious doubts arising out of the seemingly improper procedural administration during the First and Second Degree (relating to the rapporteur’s proposal)», the Committee believes that it «deprives the applicant of his right to an effective remedy» (as determined in ECHR -European Court, MSS v Belgium and Greece, appeal Nos. 30696/09). Additionally, the Committee believes that they are deprived of their opportunity to determine the actual merits of the applicant’s claim as enshrined in Article 1A (2) of the Geneva Convention for international protection, and the specific national provisions of Article 33 in PD 113/2013. The Committee also stated that while they wish to invite the applicant to a new hearing before them, this is not possible because «Appeal Committees may invite an applicant to an oral hearing only if the rapporteur has submitted a complete proposal», and not merely a written one (Article 26, para. 4 in PD 113/2013).

The Committee then examined international sources regarding the current situation in Burkina Faso, to determine the possibility of granting subsidiary protection. The Committee held that the applicant did not meet the prerequisites of Art. 2, 15 PD 141/2013, as the applicant would not be in danger of suffering serious harm if returned as a civilian to Burkina Faso, because there did not exist an "international or internal conflict" nor was there a known situation of "generalized violence".

The Committee then examined the possibility of granting temporary admission on humanitarian grounds (pursuant to art. 33 of PD 113/2013), on the basis of the principle of non-refoulement and for the protection of the applicant’s human rights. The Committee recognized that the applicant does not pose a threat to the national or public security in Greece, that he suffers from serious health issues, that he receives proper pharmaceutical treatment in Greece and that he would likely face financial hardship if returned to Burkina Faso, which could hinder an effective access to medical services. For these reasons, the Committee held that "if the present decision becomes final (Article 2 par. E in PD 113/2013), it is probable (Article 33, PD 113/2013) that the case will be referred to the competent authorities to examine the temporary admission on humanitarian grounds pursuant to Article 1, KYA 30651/2014 (FEK B 1453 / 05.06.2014)."

Outcome: 

Appeal unsuccessful. Application for recognition of refugee status rejected. Eligibility for subsidiary protection not recognized. 

Subsequent Proceedings : 

Possible future referral to the competent authorities to determine temporary stay on humanitarian grounds.

Observations/Comments: 

Observations by Spyros Koulocheris (Attorney at Law Office Greek Council for Refugees / The views expressed do not necessarily represent the views of the Greek Council for Refugees)

Mr. Koulocheris believes that the case should be reviewed. Specifically, he claims that if something is not explicitly provided for in the Law, this does not mean, a contrario, that it is excluded or banned. If that were the case, there would often arise perfunctory issues against proper administration and that would lead to unfair and disproportionate effects for the applicant.

This case summary was written by Nafsika Vasileiadou, a LLM student at Queen Mary's University, London. 

Other sources cited: 

UNHCR, Interviewing applicants for refugee status 1995

“UNHCR, Procedural Standards for Refugee Status Determination Under UNHCR’s Mandate, 2013”

UNHCR Note on burden and standard of proof in refugee claims 

"Doctors Without Borders, invisible pain: Repeated and systematic detention of migrants and asylum seekers in inadequate conditions in Greece, 18.02.2015"

339/2013 of the State Legal Council

The Bertelsmann Stiftung's Transformation Index - BTI, 2014 Burkina Faso Country Report

Freedom House, Freedom in the World 2015 - Burkina Faso

United States Department of State, 2014 Country Reports on Human Rights Practices - Burkina Faso

Amnesty International, The State of the World’s Human Rights 2014/2015: Burkina Faso