Greece - Council of State, 29 August 2011, Application No. 2512/2011

Country of Decision:
Country of Applicant:
Date of Decision:
29-08-2011
Citation:
Application No. 2512/2011
Court Name:
Council of State, Chamber D
National / Other Legislative Provisions:
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 - 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
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Headnote: 

The case concerned the interested party's obligation to cite specific facts which can provide evidence that the conditions for falling within the scope of the 1951 Convention had been satisfied. There must be a thorough examination of the main claims and a full justification of any negative decision in the case. If the Minister for Public Order adopts the Committee's negative judgment, then the relevant document must cite not only the interested party's claims but also the questions which were put to the foreigner and the responses he gave. The contested order – based on a defective opinion – referred in general terms to the Applicant not having shown a risk of persecution on racial, political or other grounds, and is deficiently reasoned. The application for annulment was granted.

Facts: 

The First Applicant, a Turkish citizen of Kurdish origin, entered Greece illegally and submitted an application for asylum. On examination by the Police Authorities he stated that he was a member of the [...] Party and that, because of spreading propaganda against the Turkish authorities, he was detained for 8 days in Izmir prison where he was subjected to torture. Finally, he claimed that he would be arrested and imprisoned if he returned to Turkey, because he had not completed his military service. That application was rejected by decision 4/108923/25.6.2002 of the General Secretary (G.S.) of the Ministry for Public Order (M.P.O.) because, inter alia, “in this case the subjective and objective elements of a well-founded fear of persecution, necessary for recognition of his refugee status, have not been satisfied” since “mere opposition to his country's regime cannot, alone, be grounds for an application for asylum. There is no evidence to show that he faces individual persecution in his country because of his race, religion, nationality, social group or political opinion.” The Applicant brought quasi-judicial proceedings against that decision. The second Applicant, wife of the first, also a Turkish citizen of Kurdish origin, illegally entered Greece with her 3 minor children and submitted an application for asylum, citing a fear of persecution because of her ethnic background. On examination she reported to have been persecuted by the Turkish authorities because of her Kurdish origin and because she was a member of the PKK. Her application was rejected by decision 4/261226/7.10.2003 by the G.S. of the M.P.O. giving the same justification as above. She brought quasi-judicial proceedings against that decision. The relevant Committee gave its verdict on the Applicants' appeals. Before the Committee, the first Appellant stated that he was a member of the [...] Party, a human rights organisation and a solidarity movement in support of prisoners' rights. In 1996 he was detained for 19 days by the Counter-terrorism Squad in Izmir, was tortured, and was sent for trial accused of abetting an illegal organisation and, according to information from his lawyer, he was sentenced to 4 months in prison. The Applicant submitted documentary evidence as proof of his claims. The second Applicant stated that she fled her country because of the problems her husband had with the Turkish authorities and because of harassment by the security forces in her country, and that she and her husband both participated in [...] Party activities and in the aforementioned human rights organisation in Turkey. In its report of 13.6.2005, the Asylum Advisory Committee gave a unanimous verdict in favour of rejecting the Applicants' appeals, holding that their claims of persecution were unsubstantiated. It believed that they had fled their country for economic reasons and were using their application for asylum to facilitate their stay in Greece in order to find work and improve their standard of living. The reasoning in that report was adopted by the Minister for Public Order in his contested decision which was a final rejection of the Applicants' application to be granted asylum, and they were given a deadline of 30 days to go voluntarily to a country of their choice.

Decision & Reasoning: 

The Council of State held that the contested decision was, because of its content, defectively reasoned. This was because the aforementioned applications for recognition of their refugee status did not invoke mere opposition to their country's regime, but rather cited – in a sufficiently specific manner – facts which were, in principle, capable of substantiating a risk of persecution in their country because of their Kurdish origins and, thus, that they were subject to the 1951 Convention; and the first of them even submitted relevant evidence. The Council of State emphasised that the said Committee should have examined the claims, checked their consistency and plausibility, and made an assessment regarding the Applicants' credibility, but the relevant report only states that each member of the Committee asked the Applicants questions about the circumstances under which they left their country, the risks they faced or may have faced in the future, and about any persecution they may have suffered in their country, without making clear which facts the Committee used as the basis for their decision in favour of rejecting the Applicants' cases. Thus, the Council of State concluded that the contested Ministerial decision – supported by defective justifications, and referring in totally general terms to the lack of any evidence of a risk of the Applicants being persecuted for racial, political or other reasons – was deficiently reasoned and, therefore, as justly claimed, that it should be annulled and that the case should be referred back to the Administration for a new, legally justified ruling on the Applicants' applications to be recognised as refugees, considering the facts cited by the first Applicant to be justifiable, particularly his possible involvement in the [...] Party. The Council of State also stated that the Administration could, ex officio, assess whether or not the organisations to which the Applicants claimed to belong were of a terrorist nature.

Outcome: 

The Council of State upheld the application, annulled decision 4/108923/26.8.2005 by the Minister for Public Order, and referred the case back to the Administration to be reconsidered legally, in accordance with what was set out in the reasoning. It also ordered the State to pay the Applicants' court costs and ordered the return of the fee.

Observations/Comments: 

This decision is of particular importance because this Court has interpreted provisions 2 and 3 of Decree 61/1999 in the light of Articles 4 and 9 of Council Directive 2004/83/EC. The Court emphasised that the combination of these provisions made it clear that, in view of the nature and importance of what was at stake should an asylum applicant be returned to his country, it was vital that the assessment of the application, on an individual basis, includes a thorough examination of the substantive claims which are made, and also a specific and full justification of any act which rejects the application.

Court composed of: S. Rizos, Vice-President, President of Chamber D;

G. Papageorgiou, D. Kyrillopoulos, Councillors;

I. Michalakopoulos, Ur. Nikolarakou-Mavromichail, Associate Councillors.

Clerk: Aik. Ripi Triadi.

Case Law Cited: 

Greece - Council of State, Application No. 2534/2009

Greece - Council of State, 1647/2003

Greece - Council of State, 1814/2006