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

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.