Greece - Special Appeal Committee, 22 June 2012, A.G. v. the General Secretary of the former Ministry of Public Order, Application No. 95/56266

Country of Decision:
Country of Applicant:
Date of Decision:
22-06-2012
Citation:
Application No. 95/56266
Court Name:
3rd Special Appeal Committee, Ministry for Citizen Protection
National / Other Legislative Provisions:
ICCPR - Art 17
ICCPR - Art 26
Greece - Σύμβαση της Γενεύης 1951 Νομοθετικό Διάταγμα 3989/1959 (Geneva Convention 1951 Legislative Decree)
Greece - Προεδρικό Διάταγμα 96/2008 (Presidential Decree)
Greece - Presidential Decree No. 114/2010 entitled 'Refugee status: single procedure for foreigners and stateless persons'
Greece - Κώδικα Διοικητικής Διαδικασίας (νόμος 2690/ 1999) (Administrative Procedure Code)
Greece - Minister for Citizen Protection No. 5401/3-505553
Greece - Minister for Citizen Protection No. 4000/1/70-a (Gov. 1725/2.8.2011 B)
Greece - Αναγκαστικός Νόμος 389/1968 (Φύλλο Εφημερίδας Κυβερνήσεως 125 Τεύχος Α) (Emergency Act)
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Headnote: 

The Applicant was a homosexual male from Iran who had renounced Islam and was studying the catechism of the Roman Catholic doctrine. It was held that the Applicant had no well-founded (objective) fear of persecution on the grounds of changing his religious beliefs.

Regarding the risks associated with his sexual orientation, the fear that the Applicant expressed was deemed to be well-founded, and it was held that not externalising his sexual orientation to avoid danger would, in and of itself, constitute serious harm to his right to respect for his private life and his right to not be discriminated against. Therefore, his refugee status was recognised and he was granted the international protection in the form of refugee status.

Facts: 

The Applicant was an Iranian citizen. He was a homosexual who, in his country, used to frequent a park in Tehran where other homosexuals used to go and he had sometimes been harassed by the police force.  He did not reveal his sexual orientation within family circles or his social environment because of the adverse social consequences faced by homosexuals in Iran. In June 2006, he was arrested in the said park by the police and they beat him, resulting in deafness in his left ear and a scar and he continued to suffer from post-traumatic stress to the present day. Three days after his arrest, he escaped, with assistance, from the court where he had been taken and immediately afterwards he left the country in fear for his life. He entered Greece in 2006, and was in a relationship with a Greek citizen. He was learning the catechism of the Roman Catholic faith, but he was not sure if he would get baptised as a Christian. On 25.9.2006, he applied for asylum in Greece. The Applicant's application, which was examined in the normal manner, was rejected by the General Secretary of the former Ministry of Public Order's decision no. 95/56266 on 3.11.2006. The Applicant submitted an appeal against that decision on 5.4.2007. That appeal was examined on 3.9.2012 by the 3rd Special Appeal Committee and the decision now under discussion was issued, accepting the merits of the appeal and unanimously recognising the Applicant's refugee status.

Decision & Reasoning: 

In Iran, erotic and sexual contact between individuals of the same gender is illegal, and the punishment for intercourse between two men is death. The Iranian Guardian Council had approved the final text of a revised Penal Code which had not yet been transposed into law. Under both the old and the new Codes, in contravention of international law, individuals found guilty and sentenced for “crimes against God” cannot be pardoned or have their sentence (which includes the death penalty) reduced.

With regard to carrying out the death penalty in cases of homosexuality, the Committee found that it was extremely difficult to gather information about cases of the death penalty connected to homosexuals. However, according to many sources, even in 2011 those who were accused in Iran of homosexual acts continued to face harassment and persecution. Regardless of whether or not the death penalty was carried out for the crime of sodomy, the exceptionally disproportionate nature of the relevant provisions of the Iranian penal code unquestionably constituted a real threat and was sufficient evidence to establish that carrying out the death penalty in Iran for the crime of sodomy is above the threshold of a mere possibility.

Furthermore, non-externalisation of the Applicant's sexual orientation in order to avoid the above would, in and of itself, constitute serious harm to his right to respect for his private life and his right to not be discriminated against.

The Committee held that the Applicant had no well-founded fear of persecution because of changing his religious beliefs because his links to Christianity were extremely tenuous and also becausethere was no evidence which showed an innate psychological embrace (animus) of Christianity which would put him at risk from the authorities should he return to his country.

Outcome: 

The decision accepted the merits of the appeal and unanimously recognised the Applicant's refugee status.

Observations/Comments: 

1)       It was held that the proven post-traumatic stress could explain insignificant inconsistencies in the Applicant's pleadings.

2)       The Committee held that – even though some points of one part of the Applicant's story seemed implausible – since his narrative was very detailed and the story was generally consistent, the Applicant should be given the “benefit of doubt”.

3)       It held that regardless of whether or not the death penalty would actually be carried out, the exceptionally disproportionate nature of the relevant provisions of the Iranian penal code unquestionably constituted a real threat and was sufficient evidence to establish that carrying out the death penalty in Iran for the crime of sodomy is above the threshold of a mere possibility.

4)       It held that the non-externalisation of the Applicant's sexual orientation in order to avoid persecution would, in and of itself, constitute serious harm.

5)       It is worth emphasising that the Applicant, at the time of being examined, was in the process of being indoctrinated into another faith.

 

Committee composed of:

A.P., Ministry for the Interior official, vice-President;

S.P., UNHCR representative;

A.M.P., a lawyer selected from the relevant list compiled by the National Commission for Human Rights