Greece - Special Appeal Committee, 19 January 2012, A.R. v Chief of Security and Order of the (former) Ministry of Public Order, Application No. 95/51447
| Country of Decision: | Greece |
| Country of applicant: | Afghanistan |
| Court name: | 2nd Special Appeal Committee, Ministry for Citizen Protection |
| Date of decision: | 19-01-2012 |
| Citation: | Application No. 95/51447 |
Keywords:
| Keywords |
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Country of origin information
Description
"Information used by the Member States authorities to analyse the socio-political situation in countries of origin of applicants for international protection (and, where necessary, in countries through which they have transited) in the assessment, carried out on an individual basis, of an application for international protection.” It includes all relevant facts as they relate to the country of origin at the time of taking a decision on the application, obtained from various sources, including the laws and regulations of the country of origin and the manner in which they are applied, regulations of the country of origin, plus general public sources, such as reports from (inter)national organisations, governmental and non-governmental organisations, media, bi-lateral contacts in countries of origin, embassy reports, etc. This information is also used inter alia for taking decisions on other migration issues, e.g. on return, as well as by researchers. One of the stated aims of the European Asylum Support Office (EASO) is to progressively bring all activities related to practical cooperation on asylum under its roof, to include the collection of Country of Origin Information and a common approach to its use. |
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Credibility assessment
Description
Assessment made in adjudicating an application for a visa, or other immigration status, in order to determine whether the information presented by the applicant is consistent and credible. |
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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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Internal protection
Description
Where in a part of the country of origin there is no well-founded fear of being persecuted or no real risk of suffering serious harm and the applicant can reasonably be expected to stay in that part of the country. |
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Persecution (acts of)
Description
"Human rights abuses or other serious harm, often, but not always, with a systematic or repetitive element. Per Article 9 of the Qualification Directive, acts of persecution for the purposes of refugee status must: (a) be acts sufficiently serious by their nature or repetition as to constitute a severe violation of basic human rights, in particular the rights from which derogation cannot be made under Article 15(2) of the ECHR; or (b) be an accumulation of various measures, including violations of human rights which is sufficiently severe as to affect an individual in a similar manner as mentioned in (a). This may, inter alia, take the form of: acts of physical or mental violence, including acts of sexual violence; legal, administrative, police and/or judicial measures which are in themselves discriminatory or which are implemented in a discriminatory manner; prosecution or punishment, which is disproportionate or discriminatory; denial of judicial redress resulting in a disproportionate or discriminatory punishment; prosecution or punishment for refusal to perform military service in a conflict, where performing military service would include crimes or acts falling under the exclusion clauses in Article 12(2). " |
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Serious harm
Description
In order to be eligible for subsidiary protection, a third country national or stateless person must demonstrate that if returned to his or her country of origin, or in the case of a stateless person, to his or her country of former habitual residence, s/he would face a real risk of serious harm as defined in QD Art. 15 and that s/he is unable, or owing to such risk, unwilling to avail her/himself of the protection of that country. Per Art.15:"(a) death penalty or execution; or (b) torture or inhuman or degrading treatment or punishment of an applicant in the country of origin; or (c) serious and individual threat to a civilian's life or person by reason of indiscriminate violence in situations of international or internal armed conflict." “Risks to which a population of a country or a section of the population is generally exposed do normally not create in themselves an individual threat which would qualify as serious harm.” |
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Standard of proof
Description
The degree or level of persuasiveness of the evidence required in a specific case. For example, in the refugee context, ‘well-founded’ is a standard of proof when assessing the fear of persecution. |
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Subsidiary Protection
Description
The protection given to a third-country national or a stateless person who does not qualify as a refugee but in respect of whom substantial grounds have been shown for believing that the person concerned, if returned to his or her country of origin, or in the case of a stateless person, to his or her country of former habitual residence, would face a real risk of suffering serious harm as defined in Article 15 of 2004/83/EC, and to whom Article 17(1) and (2) of 2004/83/EC do not apply, and is unable, or, owing to such risk, unwilling to avail himself or herself of the protection of that country.” “Note: The UK has opted into the Qualification Directive (2004/83/EC) but does not (legally) use the term Subsidiary Protection. It is believed that the inclusion of Humanitarian Protection within the UK Immigration rules fully transposes the Subsidiary Protection provisions of the Qualification Directive into UK law. |
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Protection
Description
A concept that encompasses all activities aimed at obtaining full respect for the rights of the individual in accordance with the letter and spirit of human rights, refugee and international humanitarian law. According to Article 2(a) of the Qualification Directive, international protection meansrefugee and subsidiary protection status as defined in (d) and (f). According to Recital 19 of the Qualification Directive “Protection can be provided not only by the State but also by parties or organisations, including international organisations, meeting the conditions of this Directive, which control a region or a larger area within the territory of the State”. According to Annex II of the Asylum Procedures Directive, in the context of safe countries of origin, protection may be provided against persecution or mistreatment by: “(a) the relevant laws and regulations of the country and the manner in which they are applied; (b) observance of the rights and freedoms laid down in the ECHR and/or the International Covenant for Civil and Political Rights and/or the Convention against Torture, in particular the rights from which derogation cannot be made under Article 15(2) of the said European Convention; (c) respect of the non-refoulement principle according to the Geneva Convention; (d) provision for a system of effective remedies against violations of these rights and freedoms. |
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Well-founded fear
Description
One of the central elements of the refugee definition under Article 1A ofthe1951 Refugee Convention is a “well-founded fear of persecution”: "Since fear is subjective, the definition involves a subjective element in the person applying for recognition as a refugee. Determination of refugee status will therefore primarily require an evaluation of the applicant's statements rather than a judgement on the situation prevailing in his country of origin. To the element of fear--a state of mind and a subjective condition--is added the qualification ‘well-founded’. This implies that it is not only the frame of mind of the person concerned that determines his refugee status, but that this frame of mind must be supported by an objective situation. The term ‘well-founded fear’ therefore contains a subjective and an objective element, and in determining whether well-founded fear exists, both elements must be taken into consideration." |
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Race
Description
One of the grounds of persecution specified in the refugee definition according to Article 1A ofthe1951 Refugee Convention. According to the UNHCR: “Race, in the present connexion, has to be understood in its widest sense to include all kinds of ethnic groups that are referred to as “races” in common usage. Frequently it will also entail membership of a specific social group of common descent forming a minority within a larger population. Discrimination for reasons of race has found world-wide condemnation as one of the most striking violations of human rights. Racial discrimination, therefore, represents an important element in determining the existence of persecution.” According to the Qualification Directive the concept of race includes in particular considerations of colour, descent, or membership of a particular ethnic group. |
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Individual threat
Description
An individual threat to a civilian's life or person must be proven in order to establish the serious harm required before an applicant will be eligible for subsidiary protection status on the grounds set out in QD Art. 15(c). “Risks to which a population of a country or a section of the population is generally exposed do normally not create in themselves an individual threat which would qualify as serious harm.” |
Headnote:
The Applicant’s objective fear was not considered well-founded as persecution was not considered reasonably likely. It was held that there was a reasonable likelihood that, should he return, the Applicant would be forced to live as an internally displaced person in degrading conditions because he lacked the family network that would be required in order to reintegrate him into his homeland socially and financially. Exposure to extreme living conditions constitutes degrading treatment and deporting a person to a country where he would be subject to such conditions violates Article 3 of the ECHR. Subsidiary protection status was therefore granted.
Facts:
The Applicant was a Hazara from the town of Sheik Ali in the Parwan region of Afghanistan. He left his country with his family in 1992/3 at the age of 4 or 5. He lived in Iran for around 10 years and then came to Greece in September 2004. In Afghanistan his family had a property dispute with a neighbour named Chamza. His son was killed and Chamza accused the Applicant's family of the murder. The Applicant's father was killed and his family was threatened by Chamza's sons. The family left for Bamiyan, then Charikar (where they did not stay because of the enmity between the Tajiks and the Hazar), and finally they went to the district of Ghazni which is a mainly Hazar area, but they were not welcome there either, because they were not locals and the Kuchi objected. During the journey, the Applicant's life was in danger and his brother was injured by bullets. The Applicant's opinion was that the culprit was Chamza. The family fled to Iran. The Applicant was deported three times, but returned to Iran on each occasion. Fearing that he would be deported again, he left Iran and came to Greece. On 1.3.2005 he submitted an asylum application, which was rejected by decision 95/51447 of 8.11.2005 by the General Secretary of the Ministry of Public Order. The Applicant appealed against that decision on 7.3.2006, and the Applicant was examined verbally as part of that hearing on 17.11.2011.
Decision & reasoning:
The Committee believed that the Applicant's claims were probably true. It made extensive references to the situation of the Hazara ethnic group; it accepted that members of that group had suffered systematic discrimination which continues to the present day, that there was a long history of ethnic conflict between the Hazara and the Kuchi, and that internally displaced persons attempting to reclaim their property would be likely to face conflict over the land and its produce. However, in the Committee's opinion, in this case it was not reasonably probable that there was “objective fear” because the risk of being found and possibility of being persecuted or killed upon his return was very remote due to the passage of a long period of time and because he had totally changed, physically, as he grew from a 4/5 year old child into an adult. According to the Committee, “persecution” of the Applicant was also not reasonably likely: he was too young then to have any responsibility for his family's dispute with the other family, and the chances of him being found by his persecutor after being away from his country for more than nineteen years were remote. Therefore, the Committee decided not to proceed to examine the other conditions of Article 1A(2) of the 1951 Convention on the ground that the failure to satisfy even one element of the definition of refugee leads to recognition of that status being denied. The Committee went on to examine the conditions for granting subsidiary protection. It initially held that there was no risk of the Applicant being subject to the death penalty or execution (Article 15(a), nor a danger to his life or physical integrity due to indiscriminate violence (Article 15(c). Regarding Article 15(b) of the Directive, the Committee reported that internally displaced persons in Afghanistan are exposed to extremely difficult conditions (lack of shelter, food, and access to drinking water; insanitary conditions; inadequate medical care; lack of access to education and employment; generally insecure conditions) which, in the light of Article 2 of the ECHR and recent ECtHR case law (M.S.S. v. Belgium and Greece), falls within the definition of “degrading treatment”. Furthermore, regarding the possibility of relocation, the Committee stated that the reasonableness of this must be assessed on an individual basis, taking into account the availability of traditional support mechanisms; the availability of basic infrastructure and access to basic services; the ability of those involved to support themselves, including opportunities for a livelihood; the crime rate and degree of insecurity; and the amount of dislocation in the region to which they would be relocated. In the case of a person with no family ties who is not able to benefit from some informal social network (extended family or clan) internal relocation should not be considered a reasonable option. Thus, the Committee held that since the Applicant (an orphan without any relatives with a stable place of residence in Afghanistan) did not have the necessary family network to assist his social and economic reintegration into his homeland and that, should he return, it was reasonably likely that he would be forced to survive as an internally displaced person in extreme social conditions (degrading conditions). For that reason the Committee, holding that the deportation of a person to a country where he would be subjected to such conditions would violate Article 3 of the ECHR, ruled that the Applicant must be awarded subsidiary protection in accordance with Article 15(2)(b) and Article 18 of Presidential Decree 95/2008 which transposed the equivalent Articles 15 and 18 of Council Directive 2004/83/EC of 26 April 2004 into Greek law.
Outcome:
Appeal formally accepted. Application for recognition of refugee status rejected. Recognised subsidiary protection status for two (2) years.
Observations/comments:
It is particularly significant that subsidiary protection has been awarded based on point (b) of Article 15 Council Directive 2004/83/EC of 26 April 2004, which refers to “torture” or inhuman or degrading treatment or punishment of an applicant in the country of origin, because it was held that the term “degrading treatment” included being subjected to extreme social conditions (a violation of community rights) such as lack of shelter and food, lack of access to drinking water and sanitary conditions, inadequate medical care, lack of access to education and employment and generally insecure conditions.
Also significant is the extensive reference to the ECtHR decision in M.S.S. v. Belgium and Greece, 21.1.2010 (appeal no. 30696/09) in order to reinforce the inclusion of extreme living conditions in the term “degrading treatment” and, then, to reach the conclusion that deporting the AApplicant to his country of origin – where he may be subjected to such conditions – would constitute a breach of Article 3 of the ECHR; and thus that the conditions of Article 15(2)(b) and Article 18 of Presidential Decree 95/2008 (Article 15(b) of Council Directive 2004/83/EC of 26 April 2004) had been met.
Committee composed of:
A.K., Ministry for the Interior official, vice-President,
B.A., UNHCR representative, regular member,
S.A., a lawyer selected from the relevant list compiled by the National Commission for Human Rights, regular member.
Relevant International and European Legislation:
Cited National Legislation:
Cited Cases:
| Cited Cases |
| ECtHR - M.S.S. v Belgium and Greece [GC], Application No. 30696/09 |
Other sources:
– US Central Intelligence Agency, CIA Factbook: Afghanistan, 18.10.2010,
– UNHCR, Eligibility Guidelines for Assessing the International Protection Needs of Asylum-Seekers from Afghanistan, 17.12.2010
– UNHCR, Eligibility Guidelines for Assessing the International Protection Needs of Asylum Seekers from Afghanistan, July 2009
– Integrated Regional Information Networks (IRIN), Afghanistan: Kuchi minority complain of marginalization, 23.11.2010
– Internal Displacement Monitoring Centre (IDMC)Afghanistan: Need to minimize new displacement and increase protection for recently displaced in remote areas, 11.4.2011
– Home Office, Country of Origin Information Report: Afghanistan, 11.10.2011
– Asylum Aid, Women's asylum news: Issue No. 70, November/December 2007, 7.11.2007