Greece - Council of State, 31 December 2008, 4055/2008

Country of Decision:
Country of Applicant:
Date of Decision:
31-12-2008
Citation:
Council of State 4055/2008
Court Name:
The Council of State, Chamber D
National / Other Legislative Provisions:
UNCRC - Art 3
UNCRC - Art 22
Greece - Άρθρα 25 παρ. 1 του ν. 1975/1991 (Art 25(1) of Act 1975/1991)
Greece - Προεδρικό Διάταγμα 61/1999 (Presidential Decree) Art 2
Greece - Προεδρικό Διάταγμα 61/1999 (Presidential Decree) Art 1
Greece - Προεδρικό Διάταγμα 61/1999 (Presidential Decree) Art 8
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 παρ. α’ του ν. 2019/2001 (Art 72(a) of Act 2019/2001)
Greece - Άρθρο 1 του ν. 2101/1992 (Art 1 of Act 2101/1992)
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Headnote: 

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

The case addressed the absence of procedural guarantees in the context of appointing a Commissioner and assessing the applicant’s level of maturity with regard to the need for special treatment of an unaccompanied minor.

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 Court found that the decision of the Minister for Public Order was improperly reasoned in that itfailed to comply with the Administration's obligations to take into account the particular circumstances of the case, to consider the merits of the applicant's claims based on objective evidence, to conform with procedural guarantees when assessing applications by unaccompanied minors, and to interpret the applicant's claims within the true intended meaning of the words used. It found that the Administration had failed to investigate the applicant's risk of persecution on the grounds of his racial origins and membership of (participation in) a particular social group (young male Hazara) in view of the prevailing conditions in his country.  The contested decision was also defective because of a failure to examine the existence of conditions for protection on humanitarian grounds.  

Facts: 

The applicant, a citizen of Afghanistan, entered Greece on 24.10.2001. He was arrested by Mytilini Coast Guards for entering the country illegally, in accordance with Article 50 of Act 2910/2001, and he was referred to the Public Prosecutor of Mytilini who refrained from bringing criminal charges against him so that he could be expelled by administrative acts. 

On 1.11.2001, at Mytilini Police Department, the applicant submitted an application to be recognized as a refugee, citing a fear of persecution on the grounds of his racial origin. In particular, the applicant – who at the time of requesting asylum was 16 years old – stated to the competent administrative bodies that he left Afghanistan with his family at the age of 1.5 years and went to Iran. He claimed that his life is in danger in his own country because of the civil war since he belongs to the Hazara tribe which is being exterminated by the Pashtun "Taliban" who run the country.  The applicant's application was rejected by decision of the General Secretary of the Ministry of Public Order, and the applicant lodged an administrative appeal against that decision.

The applicant repeated, before the competent Committee, that he left his country with his family at the age of 1.5 years and went to Iran, where living conditions were not good; he stated that he was living in the Juvenile Asylum Seekers' Hostel run by the National Youth Institute in Anogeia, Crete, where he was taking certain lessons; and he asked to be granted asylum in Greece, or otherwise to be given temporary leave to stay in the country on humanitarian grounds. 

The Committee, after giving a majority ruling that the conditions for recognition of refugee status under the 28.7.1951 Convention had not been met in the case of the applicant, expressed a wish that he be allowed to remain in the country temporarily on humanitarian grounds.  Next, in his contested decision, the Minister for Public Order rejected the applicant's appeal and gave him a three-month deadline in which to leave the country voluntarily. 

On 8.6.2004 the applicant submitted an application for relief to the Minister for Public Order, seeking a review of his case.  Pursuant to that application, the Immigration Department of the Security and Order Branch of the Ministry of Public Order issued an Order which, regarding the applicant's request to be allowed to remain in the country temporarily on humanitarian grounds, referred specifically to the previous rejection of the application by the Minister for Public Order's contested decision.  The applicant submitted a further application to the General Secretary for Public Order requesting a review of his application to be placed under the special humanitarian status of Presidential Decree 61/1999. A similar Order was issued against this application, according to which the applicant's renewed application was an abuse of procedures and did not require any response.

Decision & Reasoning: 

The Court recognized that this category of asylum applicants – unaccompanied minors, in other words – is a special category for which special procedural guarantees have been established regarding the examination of their claims. The Court referred to the need for special treatment of asylum applications submitted by unaccompanied minors, as set out within the framework of EU refugee law, even though the latter was not applicable law at the time the decision was issued. As explanatory sources on the status of refugees the Court also relied on various international instruments which, although non-binding in nature, set out best practice and recommend compliance. These instruments do not lay down laws which must be observed – establishing enforceable rights or recognizing a legitimate interest therein – but they constitute “soft law” i.e. they urge voluntary compliance with them. One such instrument is the UNHCR Handbook on Procedures and Criteria for Determining Refugee Status, which is referenced in Article 2(6) of Presidential Decree 61/1999. The Court clarified that this special treatment consists not only of ensuring that minors have the proper representation and guidance through the asylum procedure, but also of compliance with certain guiding principles when examining the merits of the case. The Court held that, when examining asylum applications submitted by unaccompanied minors, one must consider the applicants' maturity and level of mental development; take into account the fact that they may have a limited knowledge of the prevailing situation in their country; and also bear in mind that their ways of expressing their fears may differ from those of adults.  The Court also held that, in view of the difficulties minors may face in describing their own personal circumstances, it is necessary to give greater emphasis to the existence if objective factors on which to base the assessment of the existence of a well-founded fear of persecution in their country of origin. 

Finally, the Court annulled the contested decision for being defectively reasoned, on the following grounds:

- the applicant was an unaccompanied minor aged 15;

- the Administration did not ensure that special temporary representation of the applicant was appointed;

- no attempt was made by the body which carried out the examination to assess the applicant's mental maturity; 

- the applicant cited his racial origin (Hazara) and the prevailing situation in his country in order to establish the existence of a fear of individual persecution should he return to Afghanistan;

- he had made an additional request to be permitted to stay in the country temporarily on humanitarian grounds;

- before the Administration he cited objective factors which, given what was common knowledge about the prevailing situation in Afghanistan at the time the contested decision was issued, were in themselves sufficient to establish grounds for the application for asylum;

- in any case, recognition of an alien as having refugee status does not require evidence that he has been subjected to individual persecution: it is sufficient to establish an objective and well-founded fear of persecution (see Council of State 3337/2005, 2666/2006);

- the fact that the applicant stated that he left Afghanistan when he was 1.5 years old is of no significance, given that the conditions which justify giving a person the protection of refugee status may have developed while that person was beyond the borders of their country of origin; 

- the applicant's claims also fall within the conditions for recognition of humanitarian grounds;

- although the above claims – as they were expressed – were indeed vague, given the special circumstances of the case the Administration ought to have examined whether the applicant was justified in citing the existence of the said objective factors; and it is not sufficient to state “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”, especially given the failure to comply, in this case, with the aforementioned special procedural guarantees enshrined in Presidential Decree 61/1999 regarding the examination of asylum applications submitted by unaccompanied minors;

- interpreting the true sense of the applicant's claims, the Administration ought to have specifically investigated whether the applicant would be at risk of persecution should he return to Afghanistan, given the prevailing conditions in that country, because of his racial origin and also, maybe, for belonging to a specific social group (young male HAZARA), in order to judge if there was a prima facie case for recognizing the applicant's refugee status or, otherwise, if it was possible to grant him a temporary residence permit on humanitarian grounds. 

Outcome: 

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

Subsequent Proceedings : 

In subsequent proceedings refugee status was recognised by the Committee formed pursuant to Presidential Decree 114/2010, taking into account the invocation of an additional reason i.e. that the applicant's claim was supported by particularly traumatic persecution due to which he was not expected to be repatriated in the future.

Observations/Comments: 

The Council of State, Chamber D

M. Vrontakis, Vice-president, President of Chamber D,

D. Petroulias, P. Kotsonis, Councillors,

I Mazos, O. Nikolarakou, Associate Councillors

The decision deals fully, and in line with the claims raised, with the shortcomings of the Administration at all stages of the procedure, the said shortcomings resulting in an inadequate and poorly reasoned decision which is, therefore, invalid. It is interesting that the decision makes reference to the binding nature of the legislation (Directives) which was under development when the contested decision was issued, as well as to various international instruments of a non-binding nature which are “soft law” with encouragement to comply with them voluntarily. Also significant are the rulings concerning the reversal of the burden of proof and concerning the need to examine whether the applicant is a member of a particular social group.

Case Law Cited: 

Greece - Council of State, 2666/2006