Greece: Council of State on Turkey as a safe third country and aspects of the Greek asylum procedure

On 22 September 2017, the Greek Council of State reached its decision in cases 2348/2017 and 2348/2017 regarding, inter alia, the presumption of Turkey as a safe third country and the legality of key elements of the Greek asylum system (role of EASO, accelerated border procedure, etc.).

First, the Council of State upheld the legality of the fast-track border procedures, as set out in the relevant national legislation and allowed by the recast Asylum Procedures Directive (APD). The exemption of vulnerable groups and cases falling within the Dublin family unity provisions is not arbitrary and is justified by their specific circumstances.

Secondly, the Council of State did not find the possibility of EASO to conduct interviews to contravene the Greek Constitution. It rejected the complaints that EASO’s “concluding observations” following an interview are drafted in English and not Greek: first, because this is justified by the conferral of responsibilities to EASO staff and, second, because it was not demonstrated that the rejection of the application stemmed from language-related mistakes.

Thirdly, it found that the authorities had not failed by not exempting the applicant from the border procedure since the applicant had the burden of proof to establish the applicability of the exemption for reasons of family reunification or vulnerability, which he failed to do so.

Fourthly, with regard to the lack of interviews at the appeal stage, the Greek Council of State found that Article 46 of the recast APD allows an appeal against an inadmissibility decision to be rejected without hearing the appellant, as long as the facts leave no doubt as to the just nature of the decision and the applicant had the opportunity of a personal interview at first instance. This is also not contrary to Article 20(2) of the Greek Constitution.

Finally, the Council of State considered unfounded the arguments contesting the legality and sufficiency of the reasoning of the Independent Appeals Committee in the case in question, based on allegations of detention of Syrian returnees in Turkey and reports of refoulement. First, it found that there is no threat to the applicant’s life or freedom for reasons related to his Syrian origin in Turkey and that there has been no change in the protection offered in that country following the attempted coup in July 2016. Secondly, it rejected that Turkey does not respect the principle of non-refoulement in practice, in view of the large number of Syrian refugees in Turkey and the diplomatic assurances provided by the Turkish authorities. Thirdly, the Council of State found that the concept of “protection in accordance with the Geneva Convention” (as established in the definition of a “safe third country” under Article 38(1) of the recast APD) does not require a third country to have ratified the Geneva Convention or to have adopted it without geographical limitations. It is sufficient, in the opinion of the Council of State, to provide protection of certain fundamental rights of refugees such as the right to health care and employment. Fourthly, it found that the possibility for Turkey to cease the status of temporary protection by means of a Council of Ministers Decision, without prior verification of the cessation provisions of the Geneva Convention in every individual case, does not negate that protection is granted “in accordance with the Geneva Convention”.

The Council of State, by a majority of 13 votes to 12, decided not to submit a preliminary reference to the CJEU with regard to the interpretation of the “safe third country” concept.

You can find a comprehensive summary of this decision in English at ECRE/AIDA here.

Based on an unofficial translation by the ELENA Weekly Legal Update. We would like to thank Minos Mouzourakis, Senior AIDA Coordinator at ECRE, for his assistance with translating and summarising this decision.

This item was reproduced with the permission of ECRE from the weekly ELENA legal update supported by the Fundamental Rights and Citizenship Funding Programme and distributed by email. The purpose of these updates is to inform asylum lawyers and legal organizations supporting asylum seekers and refugees of recent developments in the field of asylum law. Please note that the information provided is taken from publicly available information on the internet. Every reasonable effort is made to make the content accurate and up to date at the time each item is published but no responsibility for its accuracy and correctness, or for any consequences of relying on it, is assumed by ECRE, the IRC or its partners.