Greece - Council of State, 11 October 2005, 3337/2005

Country of Decision:
Country of Applicant:
Date of Decision:
11-10-2005
Citation:
Council of State 3337/2005
Court Name:
The Council of State, Chamber D
Relevant Legislative Provisions:
International Law > 1951 Refugee Convention > Art 1A
International Law
International Law > 1951 Refugee Convention
National / Other Legislative Provisions:
Greece - Προεδρικό Διάταγμα 61/1999 (Presidential Decree) Art 3
Greece - Άρθρα 24 του ν. 1975/1991 (Art 24 of Act 1975/1991)
Greece - Άρθρα 25 παρ. 1 του ν. 1975/1991 (Art 25(1) of Act 1975/1991)
Greece - Άρθρα 1 του νόμου 2452/1996 (Art 1 of Act 2452/1996)
Greece - Άρθρα 2 του νόμου 2452/1996 (Art 2 of Act 2452/1996)
Greece - Άρθρο 72 περ. α’ του ν. 2910/2001 (Art 72(a) of Act 2910/2001)
Greece - Κώδικας Διοικητικής Διαδικασίας (ν. 2690/2004) (Administrative Procedure Code (Act 2690/2004))
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Headnote: 

Application for annulment of a decision by the Minister of Public Order 

The lack of personal persecution of an alien applicant does not preclude the recognition of refugee status if it is shown that there is an objective and well-founded fear of individual persecution in the applicant's country.

The case also addressed the deficient reasoning for the deviation in the Minister for Public Order's decision from the opinion issued by the competent Committee.  

Facts: 

The applicant, a citizen of Afghanistan, entered Greece and submitted an application for asylum on 21.12.2000. This was rejected by the General Secretary of the Ministry of Public Order.  The applicant appealed against that decision before the competent Committee, which issued a majority ruling in favour of recognizing him as a refugee given that “he left his country when he was 15 years old because of the persecution being suffered by his tribe, the Khazars, at the hands of the Taliban; and since then he has lost all trace of his parents and the other members of his family”.  The Minister for Public Order, however, rejected the said asylum application on the following grounds:  “There is no evidence to show that [the applicant] was subjected to individual persecution by the Authorities in his country because of his race, religion, nationality, social class or political opinion.  It is clear that he left his country for economic reasons and that he is using his asylum application to facilitate his stay here with the intention of finding employment and improving his standard of living”.

Decision & Reasoning: 

The Court held that the contested decision by the Minister was defectively reasoned for the following reasons:  Firstly, the contested decision was based on the assumption that recognition of an alien as a refugee requires there to be outright individual persecution, whereas, according to the Court, it is sufficient to show that there is a well-founded fear of persecution.  Secondly, the  Minister for Public Order – despite the fact that he did not follow the competent Committee's favourable decision –  failed to specifically justify his deviation from their ruling, in contravention of the provisions of Article 20(2) of the Administrative Procedure Code. 

Outcome: 

The application was granted. The decision of the Minister of Public Order was annulled,ordering the repayment of the fee. The State shall bear the applicant's Court Costs. The case was referred back to the Administration (Minister for Public Order)

Subsequent Proceedings : 
Observations/Comments: 

The Council of State, Chamber D

A. Tampasi, Vice-president of Chamber D, Presiding in place of the President.

P. Kotsonis, E. Nika, Councillors

I. Tsakopoulos, V. Kintziou, Associate Councillors.

The decision makes no reference to the specific need for protection and guarantees of due process for the applicant as an unaccompanied minor, in accordance with the Convention on the Rights of the Child, even though they were raised in the application for annulment. However, these are taken into consideration in the Court's later decisions (see Council of State decision 4055/2008) 

Case Law Cited: 

Greece - Council of State, 957/2003

Greece - Council of State, 2266/2005

Greece - Council of State, 2659/2004