Greece - The Council of State, 5 February 2008, 441/2008
Keywords:
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Duty of applicant
Description
The duty imposed on an applicant for international protection by Article. 4(1) of the Qualification Directive to submit as soon as possible all elements needed to substantiate the application for international protection. |
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Non-refoulement
Description
A core principle of international Refugee Law that prohibits States from returning refugees in any manner whatsoever to countries or territories in which their lives or freedom may be threatened. Note: The principle of non-refoulement is a part of customary international law and is therefore binding on all States, whether or not they are parties to the Geneva Convention. |
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Procedural guarantees
Description
“In the interests of a correct recognition of those persons in need of protection … every applicant should, subject to certain exceptions, have an effective access to procedures, the opportunity to cooperate and properly communicate with the competent authorities so as to present the relevant facts of his/her case and sufficient procedural guarantees to pursue his/her case throughout all stages of the procedure.” Procedures should satisfy certain basic requirements, which reflect the special situation of the applicant for refugee status, and which would ensure that the applicant is provided with certain essential guarantees. Some of these basic requirements are set out in on p.31 of the UNHCR Handbook as well as the APD Arts. 10, 17 and 34 and include: a personal interview, the right to legal assistance and representation, specific guarantees for vulnerable persons and regarding the examination procedure, and those guarantees set out in the Asylum Procedures Directive. |
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Revocation of protection status
Description
In the EU context, the decision by a competent authority to revoke, end or refuse to renew the protection status of a person including inter alia: in relation to refugee status cessation in accordance with the Geneva Convention; misrepresentation or omission of facts, including the use of false documents, which were decisive for the granting of refugee status; or if they have been convicted by a final judgement of a particularly serious crime, which constitutes a danger to the community of a Member State; in relation to subsidiary protection status cessation in accordance with QD Art. 16, exclusion per Art.17 or on any of the grounds set out in Art. 19 |
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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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Refugee Status
Description
The recognition by a Member State of a third-country national or stateless person as a refugee. |
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Real risk
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. The fact that an applicant has already been subject to persecution or serious harm or to direct threats of such persecution or such harm, is a serious indication of the applicant's well-founded fear of persecution or real risk of suffering serious harm, unless there are good reasons to consider that such persecution or serious harm will not be repeated. |
Headnote:
Application for annulment of a decision by the Minister of Public Order
The case concerned deportation of a recognized refugee (Articles 32 and 33 of the 1951 Convention relating to the Status of Refugees) after a conviction for a criminal offence under common law. Final conviction for a particularly serious crime is not sufficient legitimate justification for an act of deportation.; instead, the Administration is required to issue a specific ruling that the convicted refugee, given the circumstances under which he committed the offence and his personality, is thereafter a risk to the community as a whole to such an extent that his stay in Greece is no longer tolerable and that his immediate removal from the country is required.
A threat to the legal interests of public order does not constitute a reason to revoke refugee status as this is not explicitly referred to in the reasons for terminating refugee status in accordance with Article 1C of the 1951 Convention. Furthermore, it falls within the competence of the Council of State to annul a ruling, issued by relying on Articles 32 and 33 of the 1951 Convention relating to the Status of Refugees, which involves the deportation of an alien who has been recognized as having refugee status under the said international Convention and who continues to have refugee status.
The case also considered the lack of competence of the body which issued the contested decision (General Secretary of the Ministry of Public Order instead of the competent Minister for Public Order).
Facts:
The applicant, a Turkish national, was recognized as a refugee in 1989 (Article 1A of the 1951 Convention) by decision of the Minister for Public Order. In 2000 the applicant received a final conviction (Agrinio Court of Appeal 846/24.3.2000) and was sentenced to a total of eighteen months' imprisonment which was converted into a monetary payment, as well as to a total fine of 300,000 drachma, for the offences of misappropriating documents, of illegal and unlicensed employment of aliens, and of facilitating the illegal stay of aliens in Greece. Subsequently the General Secretary of the Ministry of Public Order issued a judgment which overturned the ministerial act recognizing the applicant's refugees status, and which ordered his deportation from the country on the grounds that “During his stay here, with refugee status, he was engaged in unlawful activities and participated in acts which could be detrimental to public security in the Country”. The applicant brought quasi-judicial proceedings against the General Secretary's decision. The contested decision by the Minister for Public Order and relevant rulings by the Special Committee accepted the appeal insofar as it related to overturning the act which recognized the appellant's refugee status and that he was subject to the 1951 Convention, on the grounds that a “threat to the legal interests of public order is not explicitly referred to in the reasons for terminating refugee status in accordance with Article 1C of the 1951 Convention”. Otherwise, however, the Minister of Public Order dismissed the appeal and ordered, relying on Articles 32 and 33 of the 1951 Convention, the expulsion of the applicant from the country, stating: “A threat to the legal interests of public order (...) is referred to (...) in Articles 32 and 33 of the (...) Convention as being a reason which permits the deportation of a refugee and, therefore, his appeal against the part of the decision which ordered his deportation is dismissed because, during his stay here with refugee status, he was arrested and received a final conviction for particularly serious crimes and, therefore, is considered to be a danger to the country”. The Minister did not take into consideration the opinion expressed by the majority of members of the Special Advisory Committee (the explicit opinion of 2 members and in the form of an annotation by 1 member, out of a total of 5 members) and he did not specifically justify his decision with regard to the protection conferred on the applicant under Articles 3 of the ECHR, Article 3 of UNCAT, and Article 33 of the 1951 Convention.
Decision & reasoning:
The Court decided to annul the contested decision as incorrectly substantiated, for the following reasons:
It ruled that when an act to deport an alien with refugee status is issued for reasons of public order, the Administration is required to give a personalized ruling which may take place after the person concerned has received a final conviction by a criminal court for a particularly serious crime (Articles 32 and 33 of the 1951 Convention in conjunction with Article 6 of Presidential Decree 61/1999 which refers to both of the former Articles without specific reference to the scope of their implementation). In particular, the Court ruled that, in light of what is stipulated in Article 33(2) of the 1951 Convention concerning legitimate justification for an act to deport a refugee, it is not sufficient to simply invoke the existence of a final conviction against him for a particularly serious crime. The Administration is also required to issue a specific ruling that the convicted person, given the circumstances under which he committed the offence and his personality, is thereafter a risk to the community as a whole to such an extent that his stay in Greece is no longer tolerable and that his immediate removal from the country is required. This is precisely because the offender is subject to the special protection of refugee status under the 1951 Convention as a person who is at risk of persecution in his own country.
As for the crimes for which the applicant was convicted, particularly the crime of misappropriating documents, the Court ruled that they did indeed fall within the meaning of “particularly serious crime” as referred to in Article 33(2) of the 1951 Convention but that the Minister for Public Order had merely relied on the applicant's final criminal conviction and his own judgment, based solely on that conviction, that the alien in question is therefore a danger; and that there was no evidence in the contested act, or in the other documents that had been presented to the Court in the dossier, that the Minister had made a specific substantive assessment as to whether, in view of the circumstances in which these crimes were perpetrated and the applicant's personality in general, the latter constitutes a danger to the community to such an extent that his immediate expulsion from Greece is necessary.
The Court also held that the Minister for Public Order needed to give details of this substantive assessment given that the final judgment which sentenced the applicant to imprisonment was converted to a financial penalty.
Finally, the Court ruled on the competence of the body which issued the contested decision (General Secretary of the Ministry of Public Order instead of the competent Minister for Public Order).
Outcome:
The application was granted. The decision of the Minister of Public Order was annulled, ordering the repayment of the fee. The State shall bear the applicant's Court Costs.
Observations/comments:
The Council of State, Chamber D
A. Tsampasi, Vice-president, presiding in place of the President of the Chamber who was indisposed
Ch. Rammos, D. Gratsias, Councillors,
O. Zygoura, M. Athanasopoulou, Associate Councillors
The decision correctly and strictly interprets the provisions of Articles 32(2) and 33(2) of the 1951 Convention. It holds that there is a requirement to give specific justification and details of the concept of a particularly serious crime, which (justification) is not limited to the existence of a final conviction by a criminal court. It also strictly interprets the fulfilment of conditions concerning national security or public order.
The decision also correctly holds that the grounds for revocation of refugee status are referred to exhaustively in Article 1C of the 1951 Convention, in contrast to the approach adopted by and enforced in Community and national legislation which is contrary to the 1951 Convention (Article 14 of the Directive ... and Article 14 of Presidential Decree 96/2008, according to which: “4. The competent decision-making authority may not grant, may revoke, or may refuse to renew the status granted to a refugee when: (a) there are reasonable grounds for regarding that person as a danger to national security (b) that person constitutes a danger to the community, having been convicted by a final judgment of a particularly serious crime”).
Relevant International and European Legislation:
Cited National Legislation:
Other sources:
Universal Declaration of Human Rights (Articles 1,3,4,5,9 and 13)