Greece - Council of State, 5 July 2007, 1628/2007

Country of Decision:
Country of Applicant:
Date of Decision:
05-07-2007
Citation:
Council of State 1628/2007
Additional Citation:
http://www.unhcr.gr/prostasia/nomiki-prostasia/o-nomos-stin-ellada.html
Court Name:
The Council of State, Chamber D
National / Other Legislative Provisions:
TFEU - Art 67
Greece - Προεδρικό Διάταγμα 61/1999 (Presidential Decree) Art 2
Greece - Προεδρικό Διάταγμα 61/1999 (Presidential Decree) Art 1(5)
Greece - Προεδρικό Διάταγμα 61/1999 (Presidential Decree) Art 3(3)
Greece - Προεδρικό Διάταγμα 61/1999 (Presidential Decree) Art 3(1)
Greece - Προεδρικό Διάταγμα 61/1999 (Presidential Decree) Art 3(5)
Greece - Προεδρικό Διάταγμα 61/1999 (Presidential Decree) Art 3(6)
Greece - Προεδρικό Διάταγμα 61/1999 (Presidential Decree) Art 3(7)
Greece - Άρθρα 25 παρ. 1 του ν. 1975/1991 (Art 25(1) of Act 1975/1991)
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 - Άρθρο 24 παρ. 1 του ν. 1975/1991 όπως αντικαταστάθηκε με το άρθρο 1 του Ν. 2452/1996 (Art 24(1) of Act 1971/1991 as amended by Art 1 of Act 2452/1996)
Greece - Άρθρα 1 του νόμου 2452/1996 (Art 1 of Act 2452/1996)
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Headnote: 

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

 

This case concerned the interpretation of Presidential Decree 61/1999 in light of Directive 2004/83/EC andexamined the reasoning of the Administration's decision in an application for recognition as a refugee, in an appeal for annulment. The minutes of the Advisory Committee should cite not only the interested party's claims but also the content of the questions put by members of the Committee and the alien's responses, as well as a detailed assessment of the claims and of any documentation or other evidence which may have been submitted. There is an obligation on the members of the Committee to deliver a reasoned judgment on the credibility of the asylum seeker. 

Facts: 

The applicant, who lacked travel documents, entered Greece illegally and submitted an application to be granted asylum on 22.1.2001. He stated that he arrived in the country on 8.10.2000 and claimed that he feared persecution by the Ethiopian authorities because of his and his family's activities in support of the Oromo tribe to which he belongs. During his oral hearing he cited specific cases of persecution against his family, his own arrest and torture, and his brother's murder. The claim, however, was rejected by decision 93/38785/22.5.2002 by the General Secretary of the Ministry of Public Order on the grounds that merely being opposed to the regime in one's county of origin does not establish a basis for an asylum application, and that there was no evidence that the applicant was at risk of persecution for any of the reasons referred to in the 1951 Convention. He appealed against that decision on 30.7.2002, citing a “well-founded” fear of persecution. Before the Committee formed pursuant to Presidential Decree 61/1999, according to the relevant minutes of 7.5.2003, the applicant reported that he belongs to the Oromo tribe which is discriminated against in his country; that his father was killed for being a member of an Oromo organization; that the fate of his mother and sister is unknown; and that he had been arrested and detained. The Committee, however, unanimously decided in favour of dismissing the appeal, ruling that the allegations of a risk of the applicant being persecuted were unsubstantiated and that, based on what was generally accepted, the applicant had clearly left his country for economic reasons and was using the asylum application to facilitate his stay in Greece with the intention of finding employment and improving his standard of living. The Committee's reasoning was adopted by the Minister in the contested decision 9135/38785/9.5.2005. 

Decision & Reasoning: 

The Council of State began by citing the relevant domestic, European and international legislation. It then noted that an alien seeking protected status under the Convention must show the Administration, with basic clarity, that there are specific facts which cause him to have a well-founded fear of persecution for one of the reasons referred to in the Convention. The Council of State added that although Presidential Decree 61/1999 (which establishes the procedures for recognising an alien as a refugee) stipulates in Article 1(5) that an alien who submits such an application is not obliged to provide formal evidence of his claims, this provision does not relieve the applicant from the need to cite certain particular facts or events which are sufficient to establish that the conditions for being given the aforementioned status have been met.

 

The Council of State also held that due to the nature and significance of what would be at risk if the asylum seeker were to return to his country (fundamental rights) it was necessary, under the terms of Article 4(3) of Directive 2004/83/EC, to assess his application for protection on an individual basis; to examine thoroughly all claims which have a bearing on the case; and to give specific and full reasoning for any decision to reject an application.

 

The Council of State noted that it was true that the applicant had not presented the Administration with any evidence of his claims, but that he had submitted a publication by an NGO to the Court which related to human rights violations which had been observed in his country. The Council of State held, however, that the lack of evidence does not, on its own, constitute a reason to reject an application for asylum. It was noted that since the applicant had made objective claims regarding a risk of persecution should he return to his country, citing specific facts which were, in principle, grounds for being subject to the 1951 Convention, the Committee should have given specific consideration to those claims, checking their consistency and plausibility and assessed the applicant's credibility. The minutes, however, record that only one member of the Committee questioned the applicant about the circumstance surrounding his departure from his country, the risks he ran or could run, and any persecution he suffered in his country; however, there is no indication of what details formed the basis for rejecting his claims as being unsubstantiated. The Council of State also noted that the minutes do not record the questions which were put to the applicant or his replies, from which – taking into account, inter alia, any material contradictions, the prevailing conditions in his country of origin, his general credibility, and also the lack of evidence – the reasoning of the Committee's decision could have established that the claims of a risk of persecution were unfounded. Therefore, the contested ministerial decision, based on defective advice, is itself defectively reasoned, as was rightly alleged, and for that reason the Council of State held that it should be annulled and that the case should be sent back to the Administration for a new and lawful judgment on the application to grant the applicant asylum.

 

Outcome: 

The Council of State accepted the appeal, annulled the Minister for Public Order's decision 9135/38785/9.5.2005, and referred the case back to the Administration for a new, lawful hearing in accordance with what was specifically mentioned in the reasoning.
The Council ordered the court fees to be returned and ordered the Greek State to pay the applicant's legal costs. 

Subsequent Proceedings : 

The case was referred back to the Administration for a new lawful hearing. 

Observations/Comments: 

The Council of State, Chamber D

(Composed of: M. Vrontakis, Vice-president, President of Chamber D; Ch. Rammos, P. Kotsonis, Councillors; I. Mazos, M. Sotiropoulou, Associate Councillors. Court Registrar: A. Triadi, Chamber D Registrar)

Case Law Cited: 

Greece - Council of State, 1647/2003

Greece - Council of State, 1814/2006

Greece - Council of State, 3885/2002