Greece - Council of State, 5 May 2009, Application No. 1524/2009

Country of Decision:
Country of Applicant:
Date of Decision:
05-05-2009
Citation:
Application No. 1524/2009
Court Name:
Council of State, Chamber D
National / Other Legislative Provisions:
Greece - Presidential Decree No. 61/1999
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: 

The petition for an ab initio examination of the asylum application was rejected by the General Secretary of the Ministry of Public Order (decision being appealed in this case) because the evidence submitted was not deemed to be new and crucial. That ruling in the contested decision was flawed because the General Secretary did not have the authority to decide whether the Applicant had refugee status deeming the evidence submitted (a medical report which linked clinical findings to torture) to not be crucial for granting asylum. Instead, he should have ordered an ab initio examination of the asylum application, making the Administration comply with the relevant procedure. If, during that procedure, it was found that there was a legitimate case, then the Administration should have recognised the Applicant as a refugee.

Facts: 

After the rejection of the application he had submitted to obtain recognition of his refugee status within the meaning of the 1951 Convention, the Applicant responded with his petition of 24.6.2003 for an ab initio examination of his application for asylum. In support of that petition to have his case reviewed, the Applicant adduced and produced – as new and (to him) crucial evidence – a report by the Medical Director of the Medical Rehabilitation Centre for Torture Victims (M.R.C.T.V.) which confirmed that the Applicant had been “subjected to systematic beatings with clubs and batons, particularly to the back of his head where there is a 1 cm scar. He was kept blindfolded in isolation for a period which cannot be determined. He was also sprayed with icy water.” The conclusion of the doctor who wrote the said report was that the clinical findings were consistent with what she had observed in similar cases of examining victims of torture and that, based on her experience and knowledge of examining victims of torture, the subject “was a victim of torture and he continues to suffer the physical and psychological consequences of it.” However, the said petition for an ab initio examination of the application for asylum was rejected by the contested decision by the General Secretary of the Ministry of Public Order, which followed the Departmental recommendation of 5.9.2003 that the said petition should not be accepted because the evidence submitted was not considered to be new and crucial within the meaning of Article 5 of Presidential Decree 61/1999. Specifically, the recommendation (which also constituted the justification in the contested decision) stated the following: “1. The Applicant's claim about being ideologically opposed to his country's regime was taken into account during the initial examination of his application for asylum. 2. The submitted report from the M.R.C.T.V., which was adduced after the rejection of his application, cannot be regarded as a reliable criterion for recognition of refugee status since the few findings it refers to (a 1 cm scar on the back of his head) quite possibly have various causes other than torture, especially given that they were inflicted, as he himself stated, around 14 years ago. 3. The application for asylum was submitted in order to facilitate his establishment in our country in his search for a better life.”

Decision & Reasoning: 

The Council of State (CoS), having cited the relevant domestic and international law, held that the content of the reasoning of the contested act rendered the act defective. That was because, at that stage, the General Secretary did not have the authority to decide whether the Applicant had refugee status deeming the evidence submitted (which linked clinical findings to torture) to not be crucial for granting asylum. The CoS pointed out that the General Secretary should instead have – based on the said evidence – ordered an ab initio examination of the asylum application, making the Administration comply with the relevant procedure established by Articles 2 and 3 of Presidential Decree 61/1999. If, during that procedure, it was found that there was a legitimate case, then the Administration should have recognised the Applicant as a refugee. Therefore, the CoS held that this appeal should be accepted, as the Applicant had correctly claimed, and that the General Secretary of the Ministry of Public Order's act of 17.9.2003 should be annulled. It held that it was unnecessary and irrelevant to consider the other grounds for annulment.

Outcome: 

The CoS accepted the appeal, annulled the General Secretary of the Ministry of Public Order's act of 17.09.2003 as set out in the reasoning, ordered the State to pay the Applicant's legal expenses and ordered that the fee be returned.

Observations/Comments: 

Court composed of: P. Pikrammenos, Vice-President of the Council of State, presiding in place of the President of the Division and the Deputy President who were both unavailable; Aik. Christoforidou, D. Gratsias, Councillors; Chr. Bolofi, I. Michalakopoulos, Associate Councillors. Registrar: Aik. Ripi.

Case Law Cited: 

Greece - Council of State, Application No. 3376/2001

Greece - Council of State, Application No. 2656/2001