Greece - Special Appeal Committee, 23 July 2012, D.C. v. the Chief of Security and Order of the (former) Ministry of Public Order, Application No. 95/127059

Country of Decision:
Country of Applicant:
Date of Decision:
23-07-2012
Citation:
Application No. 95/127059
Court Name:
3rd Special Appeal Committee, Ministry for Citizen Protection
Relevant Legislative Provisions:
National / Other Legislative Provisions:
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. 5401/3-359096 (Gov. 285/13.6.2012 vol. YODD)
Greece - Minister for Citizen Protection No. 4000/1/70-a (Gov. 1725/2.8.2011 B)
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Headnote: 

This case concerned a real well-founded fear of persecution (re-enslavement of the Applicant), failure to recognise the Applicant's refugee status as a member “of a particular social group” and a finding that his fear was not due to the grounds for persecution as defined by Article 1A of the Convention.

It was held that, should he return to his country, there was a risk that the Applicant would suffer serious harm (inhuman and degrading treatment because of potential re-enslavement) which justified granting him subsidiary protection under Article 15(2)(b) of the Directive.

Furthermore, and irrespective of the above, the Committee felt that it would amount to inhuman and degrading treatment under the said Article if the Applicant (who was suffering from chronic renal failure and hypertension) were deprived of the appropriate medical care and treatment for his condition, believing that should he return he would possibly not have access to the health care system (which was, in any case, deemed ineffective) in his country of origin, and this would be tantamount to a breach of Article 3 of the ECHR.

Facts: 

The Applicant was a Muslim and a citizen of Mauritania. Between the ages of seven and about fifteen he was incarcerated in a Muslim school where he was abused and forced into begging by the religious leader/teacher. He was sold and spent seven years as a “slave” in degrading conditions. He escaped. His initial application was rejected by the Chief of Security and Order. The case was referred to the Committee on appeal. While in Greece he was diagnosed with Stage 3 renal failure which may require a kidney transplant and systematic, permanent monitoring by doctors. He claimed that there was a well-founded fear of persecution as a victim of slavery, and an immediate risk of irreparable harm and deterioration of his health should he be returned.

Decision & Reasoning: 

According to information and sources about the country of origin, slavery and human trafficking is a major issue to this day, particularly for indigenous African populations, in the form of “forced provision of services or labour in exchange for clothes, food and/or accommodation, features which are particular to the concept of slavery and/or servitude”. Despite explicit prohibition of slavery in his country of origin, State organisations have been unable to deal with the problem and the exploitation of slaves. Similarly, the courts appear reluctant to deal with criminal proceedings and the victims themselves rarely approach the authorities because of the fear of public outrage in response to the “lack of respect for deep-rooted customs”. An increase has been seen in the number of child slaves being forced by their guardian/religious leader to beg and/or to work as servants. The Committee accepted that the Applicant had a well-founded fear of persecution because there was a reasonable likelihood that he would return to the same or a similar situation of persecution.

None of the grounds as defined by the Convention (Article 1A of the 1951 Convention) – i.e. race, religion, nationality, political opinion or membership of a particular social group – applied in order to recognise refugee status.

There was a risk that he would suffer serious harm, as described by Article 15(2)b of Directive 2004/83/EC, since there was a reasonable chance that he would suffer persecution and, more specifically, that there was a serious risk that he would be re-enslaved, especially because of the lack of other means of making a living, the lack of a support network, and his serious health problems – violations of fundamental rights, inhuman and degrading treatment under the said Article.

Additional reasons why the Applicant risked suffering the said harm as per Article 15(2)(b were that the medical and healthcare system in the country of origin is significantly inadequate and ineffective with serious deficiencies in facilities, staff, and medicines; and with extremely limited nursing units and exceptional difficulty accessing treatment. According to the WHO, it is one of the lowest-ranking places regarding the healthcare system, has a life-expectancy of 58 years, high infant mortality, and increased death rates from hypertension and kidney disease. It would be extremely difficult, if not impossible, for the Applicant to gain access to medical treatment for his conditions. The general state of poverty and unemployment, the poor economic situation and lack of family support networks are factors aggravating the difficulty of access to employment, insurance and healthcare. His removal would put him in inhuman conditions and expose him to degrading treatment, in violation of Article 3 of the ECHR. His life would be threatened. On this matter, reference was made to the fact that – according to the ECtHR decision in Pretty v. UK – treatment is degrading when it humiliates an individual without respect and diminishes his human dignity, or arouses feelings of fear, anguish or inferiority capable of breaking an individual's moral and physical resistance. 

Outcome: 

Application for recognition of refugee status rejected. Recognised subsidiary protection status for two (2) years.

Subsequent Proceedings : 

Application for Annulment before the Administrative Court of First Instance of Athens – to overturn the decision with regard to its reasoning concerning recognition of refugee status – pending.

Observations/Comments: 

It was extremely unfortunate that he was not seen as belonging to a “particular social group” given that he was a victim of “slavery” in the past, especially since it was accepted that he had a well-founded fear of persecution of that nature (re-enslavement of an actual kind). Thus, the part of the decision's reasoning which rejected recognition of the Applicant's refugee status is pending annulment.

It is significant that the Appliant's lack of access to medical care, and the inefficiency thereof, were – given his illnesses – deemed to be “degrading treatment” under Article 15(b) of the Directive. It is also significant that the general economic situation in his country of origin was taken into account as an aggravating factor which further excluded the Applicant from the health and insurance system.

It is particularly significant that the Committee, following the ECtHR reasoning in the Pretty case which concerned a seropositive patient in the final stages of illness, gave greater breadth to the said decision's reasoning and deemed that the concept of degrading treatment in Article 3 of the ECHR could include exposing an individual to a situation where he would be deprived of medical treatment which might lead to his health being compromised and/or the possibility of death at some future time (and not to an immediate and present danger to life as in the Pretty decision). 

Committee composed of: A.P., representative of the Ministry of the Interior, President; E.R., representative of the UN High Commissioner for Refugees, regular member; G.A., a lawyer selected from the relevant list compiled by the National Commission for Human Rights, regular member.

Other sources cited: 

European Commission of Human Rights (appeal number 7906/77)