Greece - Special Appeal Committee, 26 June 2011, Application No. 95/126761

Country of Decision:
Country of Applicant:
Date of Decision:
26-06-2011
Citation:
Application No. 95/126761
Court Name:
2nd Special Appeal Committee
National / Other Legislative Provisions:
UNCRC - Art 3
UNCRC - Art 22
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 - Προεδρικό Διάταγμα 69/2008 (Presidential Decree 69/2008)
Greece - Presidential Decree No. 114/2010 entitled 'Refugee status: single procedure for foreigners and stateless persons'
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Headnote: 

This was an appeal against the rejection of an application for asylum before the Appeal Committees formed pursuant to Articles 26 and 32 of Presidential Decree 114/2010; and against the Minister for Citizen Protection's decisions 5401/3-498356 dated 11.2.2011 and 4000/1/67-f dated 18.5.2011. The rejection of the application (and the legal consequences arising from the rejection) was an excusable error, due to the body issuing the decision having adopted misguided practices. The fear of persecution was based on  membership of a particular social group. The domestic violence endured by the Applicant in the form of psychological stress and physical violence at the hands of her husband, in conjunction with the absence of State protection, constitutes a type of gender based persecution because those actions are detrimental to human dignity and physical integrity. Similarly, her non-conformist behaviour meant that she was exposed to the State's strict laws and practices which imposed disproportionately harsh punishment on women accused of having sexual relations outside marriage.

It was held that the implementation of laws (which may be derived from traditional or cultural norms and practices such as Sharia) which conflict with international human rights standards, and also the disproportionately harsh punishment imposed for non-compliance with a policy or for violation of a law (punishment, indeed, which shows gender based discrimination) could constitute persecution.

The imposition of corporal punishment by judicial and administrative authorities is contrary to the prohibition of torture and other cruel, inhuman or degrading treatment or punishment. The Applicant's disproportionately harsh punishment by whipping or even stoning is considered to be torture and constitutes a serious form of persecution since the right to not be subjected to torture or inhuman or degrading treatment is a protected right which is not subject to any exceptions. The prohibition of torture (Article 3 of the ECHR and Article 3 of the Convention against Torture) is absolute, and a grave violation of absolute rights is, undeniably, persecution.

The importance of preserving family unity is emphasised, taking into consideration the Final Act of the Conference which adopted the 1951 Convention relating to the Status of Refugees and the Preamble to Directive 2004/83/EC.

Facts: 

The Applicant, who stated that she was Iranian, entered Greece via the island of Lesvos on 15.3.2008 without legal documentation, accompanied by her minor child (the second Applicant). On 18.04.2008 she submitted an application for political asylum at the Political Asylum Department of the Attica Aliens Directorate, and when that application was examined she claimed that she was in fear for her life when she left her country of origin. More specifically, she claimed that her husband was a member of the “Sepah-e Pasdaran-e Enghelab-e Eslami” [Islamic Revolutionary Guard Corps], that he also had other wives, and that he was systematically violent towards her. During her husband's long-term absence the Applicant managed to get a divorce because he had deserted the marital home. Upon his return, the husband would not recognise the divorce and he forced her to go through with a new, temporary, informal marriage. The violence against her intensified during that period. While her husband was on a two-year mission overseas, she fled the marital home and had, according to her husband, an affair with another man. When the husband managed to locate her again, he forced her to return to his house and kept her confined there while he arranged to have her stoned. The Applicant and her minor child managed to abscond and flee the country which, in the absence of the child's father's consent, constituted abduction according to Iranian national law. The Applicant also submitted an application for asylum on behalf of her minor child (the second Applicant).

Pursuant to the Attica Aliens Directorate's recommendation to reject the application, dated 13.5.2008, the General Secretary for Public Order of the Ministry of the Interior issued the decision of 14.5.2008 by which “the application to be given international protection and for recognition of refugee status was rejected on the grounds that neither the subjective nor the objective elements of a well-founded fear of persecution, which is required in order to give such recognition under Article 1A of the 1951 Convention, had been satisfied.” In particular, the contested decision held that the alleged grounds were unfounded because there was no evidence to show they were true, and there was no evidence to show that she was, or would be, subjected to individual persecution by the authorities in her country because of her race, religion, nationality, social class or political opinion. Furthermore, according to the contested decision, it was clear that she left her country in order to seek employment and improve her standard of living. Finally, she had not shown
and submitted a national passport or other travel documentation with which to prove her identity.

The above decision was served on 24.5.2008 and the Applicants filed an appeal against it, out of time, on 22.1.2009. The appeal, which was dealt with on 23.1.2009, sought re-examination of their application to be granted political asylum and recognition of their refugee status, because they had a well-foundfear or persecution in their country of origin, citing the above-mentioned claims.

Decision & Reasoning: 

The Committee unanimously upheld the appeal because it decided that the out-of-time submission was not the fault of the Applicant or her child. Specifically, following the initial proceedings the Applicant was summoned by the Asylum Department of the Attica Aliens Department to collect a renewed asylum-applicant card (which bore the issue date 18.4.2008 and expiry date 18.10.2008). Because this happened on the same day that she was served with the 14.5.2008 negative decision, she mistakenly believed that she did not need to take any further action because she knew that the administration's standard practice in the case of a negative decision was simultaneously to withdraw the foreigner's special permit. When discussing the admissibility of the appeal, the Committee also took into consideration the Applicant's claims of force majeure, which justified her exceeding the legal time limit for filing an appeal against the negative decision.

The Committee also concluded unanimously that there was a well-founded fear of persecution.

Specifically, it held that – given the events which had taken place and had been accepted as true – it had been shown that there was a well-founded fear of persecution.

Concerning the justification for the fear, the Committee held that the domestic violence endured by the Applicant in the form of psychological stress and physical violence at the hands of her husband, in conjunction with the absence of State protection, constituted a type of gender-based persecution because those actions are detrimental to human dignity and physical integrity.

Regarding what Iranian law deemed to be the abduction of a minor, the Committee held that, should she return to her country of origin, the Applicant would run a real and foreseeable risk of being arrested following her husband's accusation and, subsequently, to be given disproportionately harsh punishment (life imprisonment or even the death penalty) in accordance with traditional Sharia law, which was reasonably likely to be applied in this case. It was noted that the implementation of laws (which may be derived from traditional or cultural norms and practices such as Sharia) which conflict with international human rights standards, and also the disproportionately harsh punishment imposed for non-compliance with a policy or for violation of a law (punishment, indeed, which shows gender-based discrimination) could constitute persecution.

Furthermore, the Committee held that, should she return to her country, it was reasonably likely that the Applicant would be accused of adultery and that she would be at serious risk, especially given the previous persecution by her husband in the form of domestic violence. In that case there would be a reasonable and serious risk that she would be subjected to flogging or stoning, which are the penalties for the offence of adultery during marriage. The imposition of corporal punishment by judicial and administrative authorities is contrary to the prohibition of torture and other cruel, inhuman or degrading treatment or punishment. The Applicant's disproportionately harsh punishment by whipping or even stoning is considered to be torture and constitutes a serious form of persecution since the right to not be subjected to torture or inhuman or degrading treatment is a protected right which is not subject to any exceptions. The prohibition of torture (Article 3 of the ECHR and Article 3 of the Convention against Torture) is absolute, and a grave violation of absolute rights is, undeniably, persecution.

According to the Committee, the Applicant was being persecuted as a member of a social group with inherent and unalterable attributes (a woman) since her “inappropriate” behaviour violated the law which was based on the traditional or cultural conventions and practices of Islam, and that situation is one which cannot be changed because of its long history. Specifically, her non-conformist behaviour meant that she was exposed to the State's strict laws and practices which imposed disproportionately harsh punishment on women accused of having sexual relations outside marriage.

The Committee discussed the possibility of internal relocation and held that this was not possible given that the agent of persecution was the State.

Finally, it held that both the Applicant and her minor child met the conditions for the recognition of refugee status, taking into consideration the importance of preserving family unity.

Outcome: 

The Committee unanimously upheld the appeal.

It ruled that the Applicant and her minor child fulfilled the requirements for recognition of refugee status in accordance with Article 1A(2) of the United Nations Convention on Refugees of 28 July 1951, and it recognised their refugee status.

Observations/Comments: 

Committee composed of: Penelope Chantzara, representative of the Ministry of the Interior; Roumana Erasmia, representative of the UN High Commissioner for Refugees; and Aikaterini Apostolia, a lawyer selected from the relevant list compiled by the National Commission for Human Rights.

Other sources cited: 

UNHCR. Guidelines on International Protection No. 4: “Internal Flight or Relocation Alternative” Within the Context of Article 1A(2) of the 1951 Convention and/or 1967 Protocol Relating to the Status of Refugees. HCR GIP 03 04. 23 July 2003.

UN High Commissioner for Refugees. Guidelines on International Protection No. 2: “Membership of a Particular Social Group" Within the Context of Article 1A(2) of the 1951 Convention and or its 1967 Protocol Relating to the Status of Refugees. 7 May 2002.

UN Human Rights Council, Interim report of the Secretary-General on the situation of human rights in Iran, 14 March 2011.

Guidelines for the protection of women and girls during their initial reception in Greece and the Asylum Process. June 2011.

Gender-Related Persecution Within the Context of Article 1A(2) of the 1951 Convention and/or its 1967 Protocol Relating to the Status of Refugees. May 2002.

International Federation for Human Rights. Iran: Political opponents face execution. 12 January 2010.

Immigration and Refugee Board of Canada, Iran: Legal opportunity for a divorced man to complain of adultery by his ex- wife for acts alleged to have occurred during the marriage, reports of adulteries being prosecuted under these circumstances (1999-2002)13 May 2002.

United Kingdom Home Office. Country of Origin Information Report - Iran. 28 June 2011.

Danish Immigration Service. Human Rights Situation for Minorities. Women and Converts and Entry and Exit Procedures. IDCards. Summons and Reporting etc., 30 April 2009.

Immigration and Refugee Board of Canada, Iran: Information on whether a member of a komiteh could force his ex-wife to remarry him on the custody of male children following a divorce, and on any remedies available to the woman,1 April 1997.

Asylum Aid: Refugee Women and Domestic Violence Country Studies, 2001. Immigration and Refugee Board of Canada, Iran: Spousal abuse. 18 March 2003.

Freedom House report Women s Rights In the Middle Fast and North Africa 2010 Iran. 3 March 2010.

UN Special Rapporteur on violence against women, 27 January 2006.

United States Department of State. 2010 Country Reports on Human Rights Practices - Iran, 8 April 2011.

Norwegian Country of Origin Information Centre (landinfo). 22 May 2009.