Greece - The Council of State, 4 July 2012, 2450/2012

The Court held that the refusal to perform military service does not necessarily constitute a reason to qualify for refugee status as defined by the Geneva Convention. It is, nevertheless, possible to consider that this refusal justifies granting refugee status because it is punished by punishments which are disproportionate to those prescribed for refusal to perform military service on other grounds, or if the performance of military service would include participating in crimes against humanity or in acts which are contrary to the aims and principles of the United Nations. The Court held that in this case the advisory Committee formed pursuant to Article 3 paragraph 5 of Presidential Decree 61/1999 had given a majority decision in favour of recognising the applicant as a refugee on the grounds that, if he were to return to his country, “The punishment which would be imposed on him for the action for which he is being prosecuted (desertion) would be disproportionately severe in relation to his actions.” In his ruling 9135/37247 of 20-09-2005, the Minister of Public Order dismissed the appeal by the applicant on the grounds that merely being opposed to the regime in his country is not sufficient basis for his application; that there was no evidence to show that he had suffered or was at risk of suffering individual persecution by the Authorities in his country for reasons of race, religion, nationality, social group or political opinion; and that it was clear that he had left his country for economic reasons and that he was using the asylum application to make it easier to remain in Greece in order to find employment and to improve his standard of living. In conclusion, the Court held that - because of its content - the reasoning of the contested Ministerial decision is not legitimate and sufficient and, consequently, that it should be annulled as these grounds were justifiably relied on. The Court justified its decision by pointing out that the Minister of Public Order had dismissed the appeal mainly by simply repeating the reasoning in the decision by the General Secretary of the Ministry of Public Order without specifically justifying –  as required by the general principle of law, as defined by Article 20 paragraph 2 of the Administrative Procedure Code – his deviation from the plain opinion of the Committee formed pursuant to Article 3 paragraph 5 of Presidential Decree 61/1999, nor citing the ambiguity or other legal defect thereof. He could, however, refer the case back to the said Committee for reassessment, should he deem it necessary.