Greece - Athens Court of Appeal, 25 April 2013, Application No. 57/2013
Keywords:
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Actor of persecution or serious harm
Description
Per Art. 6 QD actors who subject an individual to acts of serious harm (as defined in Art. 15). Actors of persecution or serious harm include: (a) the State; (b) parties or organisations controlling the State or a substantial part of the territory of the State; (c) non-State actors, if it can be demonstrated that the actors mentioned in (a) and (b), including international organisations, are unable or unwilling to provide protection against persecution or serious harm as defined in Article 7. |
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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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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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Medical Reports/Medico-legal Reports
Description
“Expert medical report used as evidence relevant to the application for international protection. Where psychological elements are relevant, the medical report should provide information on the nature and degree of mental illness and should assess the applicant's ability to fulfil the requirements normally expected of an applicant in presenting his case. The conclusions of the medical report will determine the examiner's further approach.” |
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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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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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Torture
Description
“Any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him/her or a third person information or a confession, punishing him/her for an act s/he or a third person has committed or is suspected of having committed, or intimidating or coercing him/her or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions.” |
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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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Political Opinion
Description
One of the grounds of persecution specified in the refugee definition per Article 1A ofthe1951 Refugee Convention. According to the Qualification Directive the concept of political opinion includes holding an opinion, thought or belief on a matter related to potential actors of persecution and to their policies or methods, whether or not that opinion, thought or belief has been acted upon by the applicant. |
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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 from the Turkish Authorities to have the Greek Judicial Authorities issue an extradition notice against A.F., a Turkish citizen seeking asylum in Greece.
The Court ruled against the Turkish Authorities' extradition request, deciding that if the person in question were extradited to Turkey there would be a risk that her situation would be made worse because of her political beliefs and because of her pending application to have her refugee status recognised by the Greek state.
Facts:
The woman whose extradition was being sought was applying for asylum in Greece and had been a victim of torture by the Turkish authorities, as confirmed by documents from the non-governmental organisation “METADRASI”. The Turkish Authorities asked Greece to extradite her to Turkey to serve her remaining sentence for the offence of being a member of an armed terrorist organisation.
Decision & reasoning:
The Court (in Council) took into account:
a) the memorandum of objections/reasons prohibiting her extradition to Turkey which she submitted, namely: because of the submission of an asylum application and the pending process of examining it; prohibition of extradition because of the principle of non-refoulement (Article 33 of the 1951 Convention); prohibition of extradition because the person being sought had suffered persecution because of her political opinion; prohibition of extradition because of her well-founded fear that she would suffer torture or some other form of inhuman, degrading or harsh punishment or treatment in contravention of Article 3 of the ECHR and Article 3 of the UN Convention against Torture; prohibition of extradition because it would violate Article 6 of the ECHR; prohibition of extradition because the extradition request would violate the principle of specificity; prohibition of extradition because of the risk that she would be prosecuted for alleged offences other than those contained in the extradition request;
b) the statements by supporting witnesses;
c) the evidence which the person whose extradition was being sought had submitted and invoked and which related to her persecution in Turkey because of her political opinion, as well as references/reports about the prevailing situation in Turkey.
It ruled that: regardless of the seriousness of the crime for which the Turkish authorities were seeking extradition, “there are serious grounds for this Council to believe that if the requested person were to be deported there would be a risk of her situation being made worse by her political opinion. At this point it must also be stressed that the person being sought has an on-going application to the Greek Authorities to be granted political asylum and be recognised as having refugee status. Therefore, in this case and for the above reasons, the requested extradition is prevented by the existence of a risk that the situation of the requested person would be worsened because of her political views. Thus, in accordance with what was held to be true in the preceding legal considerations, this Council believes that it must rule against extraditing the requested person.”
The same decision revoked the restrictive conditions which had been imposed on the requested person, and also the ban on her leaving the country.
Outcome:
The decision ruled against the Turkish authorities' extradition request.
Subsequent proceedings:
This decision became final because the time limit set for lodging an appeal had lapsed.
Observations/comments:
Court composed of:
A. Κ., Appeals President
G. C. and E. S., Appeals Judges
C. P., Deputy Appeals Prosecutor
D. D., Registrar
Relevant International and European Legislation:
Cited National Legislation:
Cited Cases:
| Cited Cases |
| ECtHR - Cruz Varas & Others v Sweden (Application no. 15576/89) |
| ECtHR - Mamatkulov Askarov v Turkey, Applications nos. 46827/99 and 46951/99 |
| ECtHR - Ocalan v Turkey (2005) (Application no. 46221/99) |
| ECtHR - Baysakov and Others v. Ukraine, Application No. 54131/08 |
| ECtHR - Daoudi v. France, Application No. 19576/08 |
| ECtHR - Khaydarov v. Russia, Application No. 21055/09 |
| ECtHR - Salduz v. Turkey [GC], Application No. 36391/02 |
| ECtHR - H.R. v France, Application No. 64780/09 |
| ECtHR - Atmaca v Germany, Application No. 45293/06 |
Other sources:
Decisions by Appeal Committees:
4/129362 of 8.3.2012, 95/50830 of 25.10.2011 , 4/355272 of 22.3.2012, 95/41461 και 95/50707 of 20.4.2012, 95/11753 of 16.5.2012, 95/47930 of 20.4.2012, 95/48607 of 20.4.2011, 95/29847 of 11.2.2011, 95/62446 of 20.4.2011