Greece - Council of State, Decision no. 2347/2017, 22 September 2017

Country of Decision:
Country of Applicant:
Date of Decision:
22-09-2017
Citation:
M.D. v the Ministers of Home Affairs and Administration for Reconstruction and Migration Policy, Finance, and Justice and Transparency and Human Rights, Council of State, 2347/2017, 22 September 2017
Court Name:
Council of State
Relevant Legislative Provisions:
European Union Law > EN - Charter of Fundamental Rights of the European Union > Article 4
European Union Law > EN - Charter of Fundamental Rights of the European Union > Article 18
European Union Law > EN - Charter of Fundamental Rights of the European Union > Article 19
European Union Law > EN - Charter of Fundamental Rights of the European Union > Article 46
European Union Law > EN - Charter of Fundamental Rights of the European Union > Article 47
European Union Law > EN - Charter of Fundamental Rights of the European Union > Article 52
European Union Law > EN - Charter of Fundamental Rights of the European Union > Article 53
European Union Law > EN - Recast Qualification Directive, Directive 2011/95/EU of 13 December 2011 > Article 4
European Union Law > EN - Recast Qualification Directive, Directive 2011/95/EU of 13 December 2011 > Article 6
European Union Law > EN - Recast Qualification Directive, Directive 2011/95/EU of 13 December 2011 > Article 7
European Union Law > EN - Recast Asylum Procedures Directive 2013/32/EU of the European Parliament and of the Council > Article 14
European Union Law > EN - Recast Asylum Procedures Directive 2013/32/EU of the European Parliament and of the Council > Article 15
European Union Law > EN - Recast Asylum Procedures Directive 2013/32/EU of the European Parliament and of the Council > Article 17
European Union Law > EN - Recast Qualification Directive, Directive 2011/95/EU of 13 December 2011 > Article 15
European Union Law > EN - Recast Qualification Directive, Directive 2011/95/EU of 13 December 2011 > Article 21
European Union Law > EN - Recast Asylum Procedures Directive 2013/32/EU of the European Parliament and of the Council > Article 33
European Union Law > EN - Recast Asylum Procedures Directive 2013/32/EU of the European Parliament and of the Council > Article 35
European Union Law > EN - Recast Asylum Procedures Directive 2013/32/EU of the European Parliament and of the Council > Article 38
National / Other Legislative Provisions:
(Presidential decree) π.δ. 141/2013 article 15
Article 14(2)(a) π.δ. 18/1989 (Government Gazette A’ 8)
Article 15(3)(a) Law 3068/2002 (Government Gazette A’ 274) as amended by article 49 Law 3900/2010 (Government Gazette A’ 213)
Article 34(1) 1968/1991 (Government Gazette A’ 150)
Law 3671/2008
Α’ 129
Article 1
24 law 3907/2011 (Α’ 7)
Law 4399/2016
Articles 13(6)
15 Greek code of Administrative Procedure ν. 2717/1999
Article 15(1) law 4332/2015
(Government Gazette A’76)
Article 76(2)
78Α Law 3386/2005
(Government Gazette A’ 212)
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Facts: 

The appellant left his country of origin, Syria, on 09/06/2016, claiming that there was a real threat to his life because of the political situation there and ISIS.  He managed to enter Turkey after three unsuccessful attempts, in which he was treated inhumanely and put in detention. He stayed in Turkey for 1,5 month without making an application for international protection before the local authorities and without integrating into the community there, as he argued that = he had been attacked twice by the “Mafia”, life there was insecure, there was discrimination against Syrians and he could have a better future in Greece. Subsequently, he tried to enter Greece 10 times, among them once he was arrested by the Turkish police, but for a short period of time.

On 04/08/2016, on the Greek island of Lesvos, he filed an asylum application. According to the EU-Turkey statement of March 2016, all new irregular migrants arriving in the Greek islands via Turkey from 20 March 2016 onwards will be returned to Turkey, in line with EU and international law, and the principle of non-refoulement. Officials from EU agencies and other countries, including the UNHCR, will be present to ensure the above measures are implemented and to evaluate the reception conditions in Turkey. Following a personal interview with an expert from the European Asylum Support Office (EASO), and after having taken into consideration the abovementioned statements and the opinion of EASO, the Asylum Office concluded that Turkey would be a safe third country for the applicant. The Court of first instance rejected the application and the applicant requested the reexamination of his application and at the same time he made a request for a personal hearing from the Appeals Committee. Both requests were rejected by the 3rd Independent Appeals Committee.

On 14/09/2016, the applicant filed an appeal before the Council of Sate against the aforementioned decisions, alleging errors and omissions in the administrative procedure as well as failure to consider any damage or risk that the applicant would be exposed to in the event of his return to Syria.

Decision & Reasoning: 

The Council of state found that the examination was lawfully limited to the admissibility question of his return to Turkey, as a first asylum country or a safe third country in accordance with art. 52 (1) of  Law 4375/2016 and art. 34 (1) of the Directive 2013/32/EU. Furthermore, regarding the appellant’s claim on the right to a personal hearing according to the letter of the law (art. 2,14, 46 Directive 2013/32/EU, and 46, 47 of the Charter of Fundamental Rights of the EU) and the findings of the Court of Justice of the EU in C-682/13 (para. 44), the competent authority has the right to decide on the appeal against the decision rejecting the asylum application without a previous hearing of the applicant when the facts leave no doubt about the validity of the impugned judgement, under the condition that in the first instance the applicant had the opportunity of a personal hearing. Therefore, the 3rd Appeals Committee had lawfully reached their decision without the previous hearing of the applicant.  

Regarding the issue of safe third country, Turkey was correctly identified as a safe third country according to art. 56 law 4375/2016 and art. 38 Directive 2013/32/EU, given that there was no risk of serious harm to the individual. According to the Court, the argument of the appellant, that he would be exposed to a real risk of serious harm upon return to Turkey, was fairly rejected as the incidents he had experienced were only isolated cases and did not specifically target the individual. Moreover, he did not face any problems with the local authorities during his entire stay in Turkey. Lastly, it was not demonstrated that Syrians are subjected, as a group, to inhuman or degrading treatment by the Turkish authorities.

The appellant’s return to Turkey is in line with the Agreement between EU and Turkey of 18th of March 2016, according to which those migrants whose asylum application is rejected will be returned in Turkey and will receive temporary protection there. The letter of the Turkish Ambassador to the Permanent Representation as well as the letter of the UN High Commissioner for Refugees, that evaluated the situation of migrants in Turkey, were also taken into consideration before the decision. The fact that their content was not disclosed to the applicant did not affect the outcome of the proceedings and did not infringe any of his rights.

Outcome: 

Appeal denied.

Observations/Comments: 

This summary was completed by Danai Spentzou, Human Rights LLM student at Queen Mary University of London.

Other sources cited: 

The Council of State referred to several of its own cases, including 445/2017, 1661/2012, 3816/2013, 886/2011, 1241/2007, 189/2007, 825/1998, 3503/2009, 5203/1987, 1730/198, 299/2017, 2933/2012, 3920/2006, as well as the Supreme Court case 371/2013 (Areios Pagos).