Greece - Patras Court for Misdemeanors, Decision of 13 October 2017
Keywords:
| Keywords |
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Inhuman or degrading treatment or punishment
Description
A form of serious harm for the purposes of the granting of subsidiary protection. The Trial Chamber of the International Criminal Tribunal for the Former Yugoslavia in Celibici defined cruel or inhuman treatment as ‘an intentional act or omission, that is an act which, judged objectively, is deliberate and not accidental, that causes serious mental or physical suffering or injury or constitutes a serious attack on human dignity.’ “Ill-treatment means all forms of cruel, inhuman or degrading treatment or punishment, including corporal punishment, which deprives the individual of its physical and mental integrity." |
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Persecution Grounds/Reasons
Description
Per Article 1A ofthe1951 Refugee Convention, one element of the refugee definition is that the persecution feared is “for reasons of race, religion, nationality, membership of a particular social group or political opinion“. Member States must take a number of elements into account when assessing the reasons for persecution as per Article 10 of the Qualification Directive. |
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Relevant Documentation
Description
“All documentation at the applicants disposal regarding the applicant's age, background, including that of relevant relatives, identity, nationality(ies), country(ies) and place(s) of previous residence, previous asylum applications, travel routes, identity and travel documents and the reasons for applying for international protection.” |
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Residence document
Description
“any authorisation issued by the authorities of a Member State authorising a third-country national to stay in its territory, including the documents substantiating the authorisation to remain in the territory under temporary protection arrangements or until the circumstances preventing a removal order from being carried out no longer apply, with the exception of visas and residence authorisations issued during the period required to determine the responsible Member State as established in this Regulation or during examination of an application for asylum or an application for a residence permit” |
Headnote:
The use of forged documents by asylum seekers, when attempting to flee from one country and seek protection under international law in another country, is not criminally liable, when it is the result of a well-founded fear for inhuman or degrading treatment.
Facts:
When they were arrested in Greece, they were accused of illegally leaving the country and of possessing and using forged passports.
Decision & reasoning:
In the majority's opinion, the defendants’ asylum claim is well-founded, as they are foreigners in Greece, and have a well-founded fear of being persecuted by the Turkish authorities due to their political beliefs and Kurdish origin.
Regarding the charges of the crimes related to the illegal exit from the country and the possession and use of forged documents, the court held that the defendants did commit these crimes but due to the emergency of their situation they could not be held criminally liable.
The court specifically ruled that there was a danger to the applicants’ life and physical integrity. These legitimate values outweigh Greece’s public order prerogative, as well as the need to ensure that legal instruments are not tampered with. Therefore, the defendants are dismissed because of the element of a situation of emergency. In addition, the conditions of Article 31 (1) of the 1951 Geneva Convention are met, as a reason for exemption from the scope of application of the above crimes.
Outcome:
Defendants were cleared of all charges.
Observations/comments:
The summary was completed by Danai Spentzou, LLM Student at Queen Mary University of London.
Relevant International and European Legislation:
Cited National Legislation:
| Cited National Legislation |
| 51 |
| 12 |
| 16 |
| 17 |
| 32 |
| 27 |
| 25 |
| 14 |
| 57 |
| 79 |
| 53 |
| Article 28(1) (a) Greek Constitution |
| Articles 2(1) |
| 83(1) (a) Law 3386/2005 |
| Article 2(1) |
| 29(7) law 4251/2014 |
| Articles 1 |
| 18 (b) |
| 26 (1) (a) |
| 80 |
| 94 Greek Criminal Code |
Other sources:
The Court further referred to domestic jurisprudence, including case 470/2011 of the Greek Civil and Criminal Supreme Court (Areios Pagos), 47/2006 Aegean Appeals Court and 2012/2004 Three Member Criminal Court of Corfu.