Greece - Council of State, 12 July 2005, 2232/2005

Facts:

The applicant entered Greece on 20.1.1997 and submitted an application for asylum on 7.11.1997. He stated, in particular, that he is an Iraqi Kurd; that, as a member of the Kurdistan Democratic Party, he took part in rebellions against the Iraqi government in the 1974-5 period; that he was exiled to the town of Diwaniyah in southern Iraq because of his activities; that, after finishing his studies, he had been unable to get a position in State education because of his political activities; and, finally, that he was conscripted into the Iraqi army for a second time in October 1988 and that he deserted in October 1989 when he was transferred to serve in southern Iraq.  He also stated that he did not return to his home town after deserting, but sought refuge in a different town in northern Iraq which was under the control of Kurdish forces rather than the Iraqi government. He worked as a teacher in that town, and made a name for himself as an artist. Because of his artistic abilities, the two rival Kurdish parties (K.D.P. and P.U.K.) which are competing for control of the region put pressure on him, using threats against him, to join their ranks so that they could use his talents for propaganda purposes. As a result of the pressure and threats, he was forced to leave northern Iraq around the end of December 1996 and fled to Greece via Turkey.

The applicant's application was rejected by decision of the General Secretary of the Ministry of Public Order, and the applicant lodged an administrative appeal against that decision. The special advisory committee considered the appeal and decided unanimously to reject the applicant's application on the following grounds: “This person, beyond the desertion which is a criminal offence and the obstacles which he claims the Iraqi regime used to prevent him from freely exercising his profession, has not shown any evidence that he will be exposed to danger if he returns to the autonomous region of northern Iraq, which is where he is originally from and where he lived for many years. Invoking threats and a fear of persecution by Kurdish party organizations does not constitute a reason to recognize refugee status as defined by the 1951 Convention.”

The Minister for Public Order then issued the contested decision which rejected the applicant's application on the following grounds: “a) The reason for fleeing from northern Iraq because of threats from the Kurdish K.D.P and P.U.K parties does not represent a basis for granting political asylum because they did not emanate from government authorities and do not justify a fear of persecution for any of the reasons referred to in the 1951 Convention, b) There is no evidence that he was subjected to persecution for reasons of race, religion, nationality, social group or political opinion, c). The claim of persecution by his country's authorities is general, vague and unsupported by any evidence; and, consequently, it does not constitute a reason to recognize refugee status.”

Decision & reasoning:

The Court held that the contested Ministerial Decision must be annulled because it is in direct violation of the provisions of Article 1A(2) of the 1951 Convention. This violation stems from the deficient reasoning and interpretation of the said order and, in particular, from the fact that the application for recognition of refugee status was rejected on the ground that threats emanating from non-state actors (which is what the K.D.P and P.U.K. parties are, in this case) cannot establish a well-founded fear within the meaning of the 1951 Convention. The Court, interpreting the provisions of Article 1A(2) of the 1951 Convention, concluded that a refugee can also be any person who claims a fear of persecution (for reasons of race, religion, nationality, social group or political opinion) by non-state actors whenever the state authorities in the said person's country of origin are unable or unwilling to provide protection against the said persecution emanating from non-state actors. The Court, in that interpretation, also referred to Articles 6(c) and 38(1) of Council Directive 2004/83/EC of 29.4.2004 “on minimum standards for the qualification and status of third country nationals or stateless persons as refugees or as persons who otherwise need international protection”.

Outcome:

The application for annulment 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. The case was referred back to the Administration (Minister for Public Order)

Subsequent proceedings:

-Αναπομπή της υπόθεσης στη Διοίκηση (Υπουργός Δημόσιας Τάξης)

Observations/comments:

The Council of State, Chamber D

M. Vrontakis, Vice-president, President of Chamber D,

 D. Petroulias, P. Kotsonis, G. Papageorgiou, A. Christoforidou, Councillors,

Κ. Efstratiou, D. Gratsias, Associate Councillors.

Even before Council Directive 2004/83/EC of 29.4.2004 “on minimum standards for the qualification and status of third country nationals or stateless persons as refugees or as persons who otherwise need international protection” was incorporated into domestic legislation, persecution by non-state actors/agents was interpreted as being persecution. Also ground-breaking was the decision by the Council of State Suspension Committee (no 31/2000) in the same case – which became the basis of case law on the scope of the protection offered to appellants by the Court – which ordered the Administration, inter alia, to re-issue the asylum seeker's identity papers until the Court had made a final decision on the application for annulment.