Greece - Council of State, 25 October 2011, Application No. 3328/2011

Country of Decision:
Country of Applicant:
Date of Decision:
25-10-2011
Citation:
Application No. 3328/2011
Court Name:
Council of State, Chamber D
National / Other Legislative Provisions:
Greece - Law No. 3900/2010
Greece - Αναγκαστικός Νόμος 389/1968 (Φύλλο Εφημερίδας Κυβερνήσεως 125 Τεύχος Α) (Emergency Act)
Greece - Law No. 1968/1991
Greece - Σύμβαση της Γενεύης 1951 Νομοθετικό Διάταγμα 3989/1959 (Geneva Convention 1951 Legislative Decree)
Greece - Act 1975/1991 - Article 25
Greece - Άρθρα 2 του νόμου 2452/1996 (Art 2 of Act 2452/1996)
Greece - Presidential Decree No. 61/1999
Greece - Legislative Decree 53/74
Greece - Law 1782/1988
Greece - Code of Criminal Procedure - Article 564
Greece - Code of Criminal Procedure - Article 565
Greece - Presidential Decree No. 258/1986
Greece - Κώδικα Διοικητικής Διαδικασίας (νόμος 2690/ 1999) (Administrative Procedure Code)
Greece - Constitution - Art. 20
Greece - Presidential Decree No. 114/2010 entitled 'Refugee status: single procedure for foreigners and stateless persons'
Greece - Προεδρικό Διάταγμα 96/2008 (Presidential Decree)
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Headnote: 

The General Secretary of the Ministry of Public Order, having had an application for asylum referred back to it, considered whether the submitted evidence was “new and crucial”. If so, an ab initio examination of the application would be ordered. Failure to give notification of an act does not affect its validity, but only the start of the deadline for submitting an application for its annulment. The copy of the Turkish Government Gazette which promulgated the decision regarding withdrawal of the Applicant's nationality, was new and crucial evidence. There was no justification for refusing the request for an ab initio examination of the Applicant's circumstances, nor for rejecting his application to remain in the country on humanitarian grounds.

Facts: 

The Applicant, a Turkish national, entered Greece illegally and submitted an application for asylum, citing a risk of persecution in his homeland because of his activities for dissident organisations. Despite the Police Authority's recommendation to accept it, the application was rejected by the General Secretary of the Ministry of Public Order's decision 9135/5469/8.7.1983, giving the specific justification as being:  “a) There is no indication of a well-founded fear of him [the Applicant] being persecuted for reasons of politics, race, religion etc.; b) He [the Applicant] is charged with committing a serious offence under Common Law (murder) whilst outside the country of admission”. Following this, however, the Applicant was granted permits to remain in the country until 30.5.1990. On 30.10.1990 and 16.11.1990 the Applicant submitted requests to have his application for asylum re-examined, but they were not considered because they were out of time. He was arrested on 23.1.1991 for drug offences and was eventually sentenced by the Five-Member Appeal Court of Athens to life imprisonment and a fine of 20,000,000 drachma for his part in multiple counts of importing, possessing, distributing and selling quantities of heroin. The same decision also ordered life-long deportation from the country. Subsequently, by decree of Heraklion Magistrates' Court, his release from prison was ordered (subject to revocation); however, he was to remain in a special immigrant detention centre at the Alikarnassos Closed Prison until such time as the above judicial order of deportation was carried out. On 22.2.2007, the Applicant submitted a request for an ab initio examination of his application for recognition of refugee status and an ancillary application to be granted leave to remain on humanitarian grounds. A document from the Immigration Department of the Greek Police Headquarters informed the Applicant that the above applications had been rejected. Then, under Heraklion Magistrates' Court's decree number 328/20.9.2007, it was ruled that deporting the Applicant was not possible since his Turkish citizenship had been withdrawn in 1987 and he had not acquired other citizenship since that time. In view of this, the previous decree (regarding his conditional release from prison) was executed and he was freed on 21.9.2007 on condition that he remained at his declared address and reported to the Police Station until the end of his probation or until the obstacle to his deportation had been resolved. Subsequently, the Three-Member Misdemeanors Court of Heraklion, in decision 1431/6.6.2011, dismissed as irrelevant the Applicant's objections under Articles 364 and 365 of the Criminal Procedure Codeagainst the deportation measure which had been imposed by decision 1080/1997 by the Five-Member Appeal Court of Athens.

Decision & Reasoning: 

The Council of State (CoS), having cited the relevant legislation, held that it was admissible to challenge the General Secretary of the Ministry of Public Order's act of 24.5.2007, which represented his official agreement with the relevant recommendations of the departmental officials. The CoS stated that, according to the available evidence, along with the request for an ab initio examination of the application for asylum, the Applicant had submitted an official translation of a copy of the Turkish Government Gazette (TGG) as proof of his claim that he had lost his Turkish citizenship. The CoS added that the Applicant had also presented the Court with a copy of another TGG which was believed to have promulgated the Ministerial Council's decision regarding withdrawal of his citizenship. However, it was not evident that this document had been submitted to the Authorities along with the request for an ab initio examination of the asylum application. It was also taken into consideration that the Departmental recommendation held that the Applicant did not correspond to the notion of a refugee because, based on the submitted documentation, there was no indication of his loss of citizenship. The CoS stated that the Applicant's initial asylum application was rejected on the ground that there was no evidence of a “well-founded” fear that he would, should he return to his homeland, suffer persecution for any of the stipulated reasons. The CoS stressed that the above copy of the TGG was new and crucial evidence within the meaning of Article 5 of Presidential Decree 61/1999 because, firstly, it was evidence which was subsequent to the decision which had rejected the initial application for the Applicant to be recognised as a refugee. Secondly, because, although the asylum application had been rejected on the grounds there was no indication of the Applicant having a “well-founded fear” of persecution for one of the reasons covered by the 1951 Convention, the Applicant – who was deemed to be implicated in activities contrary to national security – was summoned, according to the above document, to report to the Turkish administrative or judicial authorities, on pain of being deprived of his citizenship. The CoS stressed that deprivation of citizenship, if it is linked to one of the reasons set out in the 1951 Convention, could constitute persecution within the meaning of the said Convention. The CoS added that there was no indication of the reason why, as the Administration claimed, it was not possible to verify the content of the above foreign public document. Consequently, the CoS held that, in this case, the rejection of the application for an ab initio examination of the Applicant's circumstances was not lawfully justified. Finally, it held that the contested act was also not lawfully justified insofar as it rejected the ancillary request to give the Applicant protection on humanitarian grounds(because it was submitted after the final rejection of the application for asylum), since such a request can be made separately even after the Authorities have rejected the application for asylum. 

Outcome: 

The CoS accepted the application in question; it annulled, as set out in the reasoning, the 24.5.2007 decision by the General Secretary of the Ministry of Public Order which was an official formulation of the relevant recommendation by departmental services regarding the rejection of the request for an ab initio examination of the asylum application and the ancillary request for leave to remain on humanitarian grounds; it referred the case back to the Administration; it ordered the State to pay the Applicant's legal expenses; and it ordered the fee to be returned.

Observations/Comments: 

This decision by the CoS is particularly interesting because the Court held that the Turkish State's withdrawal of the Applicant's citizenship during his absence from the country rendered him stateless and, therefore, because of fears for his life should he return to Turkey and because of the inability to deport him, the case should be referred back to the Administration for an ab initio examination of his application. The CoS went even further, stating that the Administration should – having first considered the Applicant's application for asylum in view of the offences committed by the Applicant – examine the possibility of granting him a residence permit on humanitarian grounds. This CoS decision is made even more interesting by the fact that, in support of its reasoning, it contains references to corresponding decisions by foreign courts (see relevant section) which had determined that exile/the withdrawal of a person's citizenship can constitute persecution within the meaning of the 1951 Convention.

Court composed of: Ath. Rantos, Vice-president, presiding in place of the President of the Chamber who was indisposed; E. Sarp, Ir. Tsakopoulos, Councillors; Il. Mazos, V. Kintziou, Associate Councillors. Registrar: Aik. Ripi).

Other sources cited: 

US Federal Courts of Appeal, decisions of 20.5.2011, 09-4312, Stserba v. Holder [6th Cir. 2011]

US Federal Courts of Appeal, 6.1.2010, Haile v. Holder, 591 F.3d 572 [7th Cir. 2010]

Case Law Cited: 

Greece - Council of State, Application No. 1482/2011

Greece - Council of State, Application No. 1149/2009

Greece - Council of State, Application No. 1467/2011

Greece - Council of State, Application No. 867/2010

UK - EB (Ethiopia) v Secretary of State for the Home Department [2007] EWCA Civ 809