Greece - Council of State, 4 October 2011, Application No. 3023/2011

Country of Decision:
Country of Applicant:
Date of Decision:
04-10-2011
Citation:
Application No. 3023/2011
Court Name:
Council of State, Chamber D
Relevant Legislative Provisions:
National / Other Legislative Provisions:
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 - Άρθρα 25 παρ. 1 του ν. 1975/1991 (Art 25(1) of Act 1975/1991)
Greece - Άρθρο 72 περ. α’ του ν. 2910/2001 (Art 72(a) of Act 2910/2001)
Greece - Άρθρα 1 του νόμου 2452/1996 (Art 1 of Act 2452/1996)
Greece - Presidential Decree No. 61/1999
Greece - Κώδικα Διοικητικής Διαδικασίας (νόμος 2690/ 1999) (Administrative Procedure Code)
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Headnote: 

The case involved the rejection of an asylum application by an Iranian citizen of Kurdish origins who cited a fear of persecution because of his religious opinions and, specifically, having become a Christian. In support of his claims he submitted his baptism certificate and invoked the punishment stipulated by the legal system in his country of origin for changing his religion. The Minister for Public Order's decision on the party's application was annulled for being insufficiently reasoned.

Facts: 

The Applicant, an Iranian of Kurdish descent, entered Greece illegally. On 25.10.2001, he submitted an application for recognition of his refugee status at the Athens Immigration Department. During his verbal interview, the Applicant stated that he was from a Sunni Muslim family of Kurdish origins; that his mother, until marrying his father, had been a Protestant Christian; that he himself had been actively involved in Christianity, obtaining Christian books; that he had been imprisoned for 3 and a half months because of his Christian opinions; and, finally, that having been released after the intervention and personal guarantee of a relative, he left his country because he would have faced persecution from the harsh, theocratic Iranian regime if he defended his religious beliefs. Furthermore, he claimed that upon return he would be at risk of being put to death by stoning, which is the punishment imposed on Muslims who change faith. Along with the above application the Applicant submitted a certificate from the “Apostolic Church of Christ” regarding his baptism. The above application was rejected by decision 95/41423/17.9.2002 of the General Secretary of the Ministry of Public Order, giving the following justification: “There is no evidence to show that he was subjected to individual persecution by the Authorities in his country because of his race, religion, nationality, social group or political opinion. It is clear that he left his country to seek employment and to improve his standard of living.” The Applicant appealed against that decision before the Minister for Public Order. He then appeared before the Special Advisory Committee on 4.9.2003, he replied to the questions posed by each Committee member, repeated his claims as referred to above, and he invoked the baptism certificate which he had already submitted. The said Committee, based on the existing evidence, gave a majority opinion in favour of accepting the appeal because the Applicant met the 1951 Convention's conditions for recognition of refugee status since “coming from a Muslim family, he converted to Christianity which may expose him to persecution in his own country." However, the Minister for Public Order's contested decision 9135/41423/5.3.2004 rejected the appeal and the application to be granted asylum, giving the same basic justification that was given in the General Secretary's decision 95/41423/17.9.2002, as above, and he gave the Applicant a 3-month deadline to go voluntarily to a country of his own choice.

Decision & Reasoning: 

The Council of State (CoS) began by referring to the relevant international and domestic legislation, especially Article 20 of the Administrative Procedure Code which states that “1. Where the law provides for a prior opinion (normal or binding) before issuing an administrative act, that opinion shall be given pursuant to a request from the deciding authority. The opinion...shall be in writing, justified, and its contents shall be up to date. 2. The body which has the deciding power may not issue an act with content which is not in accord with the content of the binding opinion. Non-acceptance of a positive binding opinion or recommendation, or deviating from a non-binding opinion, must be specifically justified.” Based on the above, the CoS held that the contested ministerial decision was deficiently justified, as the Applicant had justly alleged. The CoS held that the Minister for Public Order had rejected the Applicant's appeal, merely repeating, in essence, the justification given in the General Secretary's decision 95/41423/17.9.2002 (which the appeal was contesting) without specifically justifying, as required by Article 20(2) of the Administrative Procedure Code, his deviation from the opinion (which was, in principle, justified in view of the specific claims which had been made during the general administrative procedure and the evidence which had been presented (the baptism certificate)) which had been given by the Special Committee set up under Article 3(5) of Presidential Decree 61/1999. 

Outcome: 

The CoS accepted the application, annulled the Minister for Public Order's decision 9135/41423/5.3.2004, ordered the State to pay the Applicant's legal expenses and ordered the return of the fee.

Observations/Comments: 

Court composed of: Ath. Rantos, Vice-president, presiding in place of the President of the Chamber who was indisposed; G. Papageorgiou, K. Kousoulis, Councillors; Il. Mazos, V. Kintziou, Associate Councillors. The Clerk was Nik. Athanasiou.

Case Law Cited: 

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

Greece - Council of State, 2266/2005