ECtHR – B.A.C. v. Greece, Application no. 11981/15, 13 October 2016
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Country of Applicant:
Turkey
Date of Decision:
13-10-2016
Citation:
European Court of Human Rights, B.A.C. v. Greece, Application no. 11981/15, 13 October 2016
Court Name:
European Court of Human Rights (First section)
Keywords:
Relevant Legislative Provisions:
Council of Europe Instruments > EN - Convention for the Protection of Human Rights and Fundamental Freedoms > Article 3
Council of Europe Instruments > EN - Convention for the Protection of Human Rights and Fundamental Freedoms > Article 8
Council of Europe Instruments > EN - Convention for the Protection of Human Rights and Fundamental Freedoms > Article 13
Council of Europe Instruments > EN - Convention for the Protection of Human Rights and Fundamental Freedoms > Article 14
Headnote:
The ECtHR ruled that the Greek authorities had failed in their positive obligation under Article 8 ECHR to guarantee that the applicant’s asylum request is examined within a reasonable time in order to ensure that his situation of insecurity, which impinges upon several elements of his private life, is as short-lived as possible.
Facts:
The applicant is a Turkish national who fled Turkey after being persecuted, tortured and arrested due to his political opinion. In 2002, he reached Greece and his asylum application was rejected at first instance. He appealed against this decision and presented a number of documents to the Greek Advisory Board on Asylum showing that he had suffered torture in Turkey on account of his political opinions. On the same day, the Advisory Board on Asylum issued a favourable opinion in respect of the applicant. Under the Greek Presidential Decree No. 61/1991, which established the procedure for the examination of asylum applications at that time, the Minister for Public Order should have taken a decision within 24h on whether or not to grant the applicant international protection. However, no decision was reached and/or communicated to the applicant since then.
From 2003 to 2015, the applicant lived in Athens and attended the police station every six months in order to renew his asylum-seeker’s card, which does not equal a residence permit under Greek law. That status did not allow for him to, inter alia, engage in an occupation, undertake vocational training, marry, obtain a driving licence, hold a bank account or apply for family reunion.
In March 2013, the applicant was arrested based on an extradition request issued by Turkey. The Patras Court of Appeal examined the extradition request and unanimously decided to reject it based on the risk run by the applicant of suffering ill-treatment on account of his political opinions, should he be extradited.
In 2015, the applicant complained before the ECtHR of an infringement of his private life on the grounds that he had lived in Greece for twelve years in a situation of uncertainty as regards his status, despite the favourable opinion issued by the Advisory Board on Asylum. According to him, this insecurity had a substantial impact on his working and family life throughout that period. He also alleged that he had no effective remedy in order to complain of this situation. Finally, he complained under Article 8 ECHR read in conjunction with Article 14 ECHR that he had suffered discrimination on grounds of his nationality.
Decision & Reasoning:
First, the ECtHR rejected the Greek government’s opinion that the applicant’s asylum request had been “implicitly rejected” and that the applicant had not appealed against this rejection before the Council of State, thus failing to exhaust domestic remedies. The ECtHR observed that different national authorities, including the police, have considered the asylum application to be pending, and that it would be unreasonable to think that the applicant’s appeal had been “implicitly rejected” within the time-limit prescribed by law. Therefore, the Court rejected the government’s argument that the applicant had not exhausted domestic remedies.
Secondly, the Court recalled its jurisprudence on Article 8 ECHR, particularly with regard to the positive obligations of Contracting States to examine a person’s asylum request promptly in order to ensure that his or her situation of insecurity and uncertainty is as short-lived as possible (e.g. M.S.S. v. Belgium and Greece [GC], para. 262). In the case in question, the ECtHR advanced, the issue at stake was the failure of the Minister for Public Order, for twelve years, to decide on the applicant’s request for asylum, even though the Advisory Board on Asylum had issued a favourable opinion and the Greek judicial authorities had rejected a request for extradition from the Turkish authorities.
The ECtHR went on to observe the different occasions on which the uncertainty of the applicant’s status negatively affected his private life (attempts to obtain a work permit, apply to university, open a bank account, etc). In the light of these considerations, the ECtHR found that the competent authorities had failed in their legal obligations under Article 8 ECHR to establish an effective and accessible procedure to protect the right to private life by means of appropriate regulations to guarantee that the applicant’s asylum request is examined within a reasonable time. The same conclusions allowed the Court to find a violation of Article 13 ECHR read in conjunction with Article 8 ECHR.
Thirdly, the ECtHR concurred with the applicant and found that, in view of the applicant’s account and the documentation he provided, his return to Turkey without an ex nunc examination of his personal circumstances would lead to a violation of Article 3 ECHR read in conjunction with Article 13 ECHR.
In view of its conclusion with regard to Article 8 ECHR, the ECtHR found it unnecessary to rule on the alleged violation of Article 14 ECHR.
Outcome:
The ECtHR found a violation of Article 8 ECHR, and Article 13 ECHR read in conjunction with Article 8 ECHR. It also found that the applicant’s removal to Turkey without an ex nunc assessment of his personal circumstances would lead to a violation of Article 3 ECHR read in conjunction with Article 13 ECHR.
The applicant was awarded 4,000 euros in respect of non-pecuniary damage.
Attachment(s):
Authentic Language:
French
State Party:
Greece
National / Other Legislative Provisions:
Greece - Presidential Decree No. 61/1999
Greece - Presidential Decree No. 189/1998
Greece - Circular no. 19000/442 of 19 October 2012
