Greece - Council of State, 2 March 2011, B. Z. v. Minister for Public Order, Application No. 652/2011

Country of Decision:
Country of Applicant:
Date of Decision:
02-03-2011
Citation:
Application No. 652/2011
Court Name:
Council of State, Chamber D
National / Other Legislative Provisions:
Greece - Άρθρα 25 παρ. 1 του ν. 1975/1991 (Art 25(1) of Act 1975/1991)
Greece - Act 1975/1991 - Article 25(4)
Greece - Άρθρα 2 του νόμου 2452/1996 (Art 2 of Act 2452/1996)
Greece - Άρθρο 24 παρ. 1 του ν. 1975/1991 όπως αντικαταστάθηκε με το άρθρο 1 του Ν. 2452/1996 (Art 24(1) of Act 1971/1991 as amended by Art 1 of Act 2452/1996)
Greece - Άρθρο 72 περ. α’ του ν. 2910/2001 (Art 72(a) of Act 2910/2001)
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 - Presidential Decree No. 61/1999
Greece - Κώδικα Διοικητικής Διαδικασίας (νόμος 2690/ 1999) (Administrative Procedure Code)
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Headnote: 

Plea for an ab initio re-examination of an application for asylum. The Special Committee formed under Article 3(5) of Presidential Decree 61/1999 gave a positive opinion because the Applicant had been involved in political activities in his country, as a Kurd, against the ruling regime; and that activity had increased during his stay in Greece. The application for asylum was rejected by the Minister for Public Order without any specific justification for deviating from the Special Committee's clear opinion. When assessing whether there is evidence that a person seeking recognition as a refugee has a well-founded fear of persecution, the Administration may take account of information regarding the activities of the interested party's close relatives.

Facts: 

The Applicant, a Turkish national, illegally entered Greece on 10.10.1995 and submitted an application for asylum on the same day. The application was rejected by decision 9135/26107/18.6.1996 by the General Secretary (G.S.) of the Ministry of Public Order (M.P.O.) on the grounds that the Applicant had not demonstrated that he was persecuted by the Turkish authorities for any of the reasons mention in the 1951 Convention and that he was using his asylum application so that he could stay in Greece in order to improve his standard of living. On 8.6.2001 the Applicant submitted a request to have his application re-examined ab initio, invoking new information which had not referred to in his initial application. Specifically, along with the request for a re-examination he submitted, inter alia, documentation from a Turkish judicial authority which showed details of one of his brothers being prosecuted for offences linked to political activities, as well as documents regarding another brother having been recognised as a refugee in Denmark. The G.S. of the M.P.O. proceeded to re-examine the party's application for recognition as a refugee, and rejected that application with decision 9135/26107/29.8.2002. The G.S.'s negative decision was served to the Applicant, and the latter filed an appeal against it, within the prescribed period, which was considered by the statutory Special Committee. At its meeting the Special Committee held an oral hearing of the Applicant. During that oral examination, the Applicant stated inter alia that his brother, A. M. B., had become deeply involved in political activities as a member of the Kurdish HADEP party and had been proposed as a mayoral candidate in his home region, and that another brother had already been recognised as a refugee in Denmark as “because of his brothers' activities he was being harassed by the security authorities, and was arrested and detained for two or three days.” On the basis of this oral examination of the application and other information in the file, the said Special Committee gave a majority verdict in favour of upholding the appeal and recognising the Applicant as a refugee on the grounds that the Applicant “had been involved in political activities in his country, as a Kurd, against the ruling regime; and that activity had increased during his stay here.” This was followed by the M.P.O.'s contested decision which rejected the party's application for recognition as a refugee, on the grounds that: “There is no evidence to show that he was subjected to, or risked being subjected to, individual persecution by the Authorities in his country because of his race, religion, nationality, social group or political opinion. The Applicant has given no convincing reasons regarding why he did not surrender his Turkish passport, as he was obliged to do, when he submitted his application for asylum in 1995; nor has he explained the circumstances under which he renewed his passport at the Turkish Consulate in Athens in 1996 and 1998; nor how he acquired a fake visa from the Greek Consulate in Istanbul in 1996. It appears that he got involved in political activities in this country in order to stay so that he could complete his studies, and the asylum application is considered to be a pretence since it was submitted when he failed to obtain a residence permit by any other means.” That Ministerial decision did, however, allow him to remain in Greece temporarily on humanitarian grounds. The Applicant sought annulment of the Minister for Public Order's decision 9135/26107/9.6.2005.

Decision & Reasoning: 

The Council of State (C.o.S.) held that the contested Ministerial decision, insofar as it rejected the application for the Applicant to be recognised as a refugee, gave insufficient justification, as the Applicant justly claimed. This was because: a) The contested Ministerial decision stated, in a totally general manner, that the conditions for recognising him as a refugee had not been met because there was no evidence that the Applicant had been subject to individual persecution for racial, political or other reasons; but it did not specifically justify – as required by general principles of administrative law, and as stipulated by Article 20(2) of the Administrative Procedure Code – why he deviated from the clear verdict of the Committee formed under Article 3(5) of Presidential Decree 61/1999 which, as already set out, held that the Applicant should be recognised as a refugee and be given the protected status of the 1951 Convention because he “had been involved in political activities in his country, as a Kurd, against the ruling regime; and that activity had increased during his stay here.” b) Although the Applicant presented the Administration with documents from judicial authorities in Turkey which showed evidence of one brother being prosecuted for offences linked to his political activities, and others concerning another brother having been recognised as a refugee in Denmark, the contested Ministerial decision contained no assessment of that documentation, despite the fact that, when deciding if there is evidence that the person applying for recognition as a refugee has a well-founded fear of persecution, the Administration may take account of information regarding the activities of the interested party's close relatives. In view of the above, the C.o.S. concluded that the contested Ministerial decision must, insofar as it rejected the application for the Applicant's recognition as a refugee, be annulled; and that the case should be referred back to the Administration for a new, lawful examination of the said application which must specifically assess the documentation referred to above. When deliberating the case, moreover, the Administration may, possibly, also consider – on condition that there is sufficient evidence in the file – the circumstances surrounding the Applicant renewing his passport and acquiring a visa from the Greek Consulate in Istanbul, as referred to in the contested Ministerial decision.

Outcome: 

The C.o.S. accepted the application; annulled the Minister for Public Order's decision insofar as it rejected the Applicant's application for recognition as a refugee, as set out in the grounds; and required the State to pay the Applicant's court costs and ordered the fee to be returned.

Observations/Comments: 

Court composed of: A. Tsampasi, Vice-president, presiding in place of the President of the Chamber who was indisposed; E. Nika, D. Gratsias, Councillors; O. Zygoura, Chr. Bolofi, Associate Councillors; The Clerk was D. Mouzaki, Clerk of Chamber D.

See also: http://www.dsanet.gr/1024x768Auth.htm

Case Law Cited: 

Greece - Council of State, Application No. 3381/1997

Greece - Council of State, Application No. 824/2006

Greece - Council of State, Application No. 3075/2007

Greece - Council of State, Application No. 3340/2005

Greece - Council of State, Application No. 2635/2006

Greece - Council of State, Application No. 3063/2007

Greece - Council of State, Application No. 3077/2007

Greece - Council of State, 957/2003