Greece - Council of State, 29 August 2011, Application No. 2512/2011
Keywords:
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Assessment of facts and circumstances
Description
The duty of the state to carry out an individual assessment of all relevant elements of the asylum application according to the provisions of Article 4 of the Qualification Directive, including considering past persecution and credibility; and the duty of the applicant to submit as soon as possible all statements and documentation necessary to substantiate the application. |
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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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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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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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Country of origin
Description
The country (or countries) which are a source of migratory flows and of which a migrant may have citizenship. In refugee context, this means the country (or countries) of nationality or, for stateless persons, of former habitual residence. |
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Nationality
Description
One of the grounds of persecution specified in the refugee definition per Article 1A ofthe1951 Refugee Convention. Nationality can be defined generally as the legal bond between a person and a State which does not indicate the person's ethnic origin. According to the Qualification Directive, when considered as a reason for persecution, the concept of nationality is not confined to citizenship or lack thereof and, in particular, includes membership of a group determined by its cultural, ethnic, or linguistic identity, common geographical or political origins or its relationship with the population of another State |
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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. |
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Obligation to give reasons
Description
Obligation on a decision-maker to give reasons for an administrative decision including applications for international protection and decisions taken under the Dublin II Regulation |
Headnote:
The case concerned the interested party's obligation to cite specific facts which can provide evidence that the conditions for falling within the scope of the 1951 Convention had been satisfied. There must be a thorough examination of the main claims and a full justification of any negative decision in the case. If the Minister for Public Order adopts the Committee's negative judgment, then the relevant document must cite not only the interested party's claims but also the questions which were put to the foreigner and the responses he gave. The contested order – based on a defective opinion – referred in general terms to the Applicant not having shown a risk of persecution on racial, political or other grounds, and is deficiently reasoned. The application for annulment was granted.
Facts:
The First Applicant, a Turkish citizen of Kurdish origin, entered Greece illegally and submitted an application for asylum. On examination by the Police Authorities he stated that he was a member of the [...] Party and that, because of spreading propaganda against the Turkish authorities, he was detained for 8 days in Izmir prison where he was subjected to torture. Finally, he claimed that he would be arrested and imprisoned if he returned to Turkey, because he had not completed his military service. That application was rejected by decision 4/108923/25.6.2002 of the General Secretary (G.S.) of the Ministry for Public Order (M.P.O.) because, inter alia, “in this case the subjective and objective elements of a well-founded fear of persecution, necessary for recognition of his refugee status, have not been satisfied” since “mere opposition to his country's regime cannot, alone, be grounds for an application for asylum. There is no evidence to show that he faces individual persecution in his country because of his race, religion, nationality, social group or political opinion.” The Applicant brought quasi-judicial proceedings against that decision. The second Applicant, wife of the first, also a Turkish citizen of Kurdish origin, illegally entered Greece with her 3 minor children and submitted an application for asylum, citing a fear of persecution because of her ethnic background. On examination she reported to have been persecuted by the Turkish authorities because of her Kurdish origin and because she was a member of the PKK. Her application was rejected by decision 4/261226/7.10.2003 by the G.S. of the M.P.O. giving the same justification as above. She brought quasi-judicial proceedings against that decision. The relevant Committee gave its verdict on the Applicants' appeals. Before the Committee, the first Appellant stated that he was a member of the [...] Party, a human rights organisation and a solidarity movement in support of prisoners' rights. In 1996 he was detained for 19 days by the Counter-terrorism Squad in Izmir, was tortured, and was sent for trial accused of abetting an illegal organisation and, according to information from his lawyer, he was sentenced to 4 months in prison. The Applicant submitted documentary evidence as proof of his claims. The second Applicant stated that she fled her country because of the problems her husband had with the Turkish authorities and because of harassment by the security forces in her country, and that she and her husband both participated in [...] Party activities and in the aforementioned human rights organisation in Turkey. In its report of 13.6.2005, the Asylum Advisory Committee gave a unanimous verdict in favour of rejecting the Applicants' appeals, holding that their claims of persecution were unsubstantiated. It believed that they had fled their country for economic reasons and were using their application for asylum to facilitate their stay in Greece in order to find work and improve their standard of living. The reasoning in that report was adopted by the Minister for Public Order in his contested decision which was a final rejection of the Applicants' application to be granted asylum, and they were given a deadline of 30 days to go voluntarily to a country of their choice.
Decision & reasoning:
The Council of State held that the contested decision was, because of its content, defectively reasoned. This was because the aforementioned applications for recognition of their refugee status did not invoke mere opposition to their country's regime, but rather cited – in a sufficiently specific manner – facts which were, in principle, capable of substantiating a risk of persecution in their country because of their Kurdish origins and, thus, that they were subject to the 1951 Convention; and the first of them even submitted relevant evidence. The Council of State emphasised that the said Committee should have examined the claims, checked their consistency and plausibility, and made an assessment regarding the Applicants' credibility, but the relevant report only states that each member of the Committee asked the Applicants questions about the circumstances under which they left their country, the risks they faced or may have faced in the future, and about any persecution they may have suffered in their country, without making clear which facts the Committee used as the basis for their decision in favour of rejecting the Applicants' cases. Thus, the Council of State concluded that the contested Ministerial decision – supported by defective justifications, and referring in totally general terms to the lack of any evidence of a risk of the Applicants being persecuted for racial, political or other reasons – was deficiently reasoned and, therefore, as justly claimed, that it should be annulled and that the case should be referred back to the Administration for a new, legally justified ruling on the Applicants' applications to be recognised as refugees, considering the facts cited by the first Applicant to be justifiable, particularly his possible involvement in the [...] Party. The Council of State also stated that the Administration could, ex officio, assess whether or not the organisations to which the Applicants claimed to belong were of a terrorist nature.
Outcome:
The Council of State upheld the application, annulled decision 4/108923/26.8.2005 by the Minister for Public Order, and referred the case back to the Administration to be reconsidered legally, in accordance with what was set out in the reasoning. It also ordered the State to pay the Applicants' court costs and ordered the return of the fee.
Observations/comments:
This decision is of particular importance because this Court has interpreted provisions 2 and 3 of Decree 61/1999 in the light of Articles 4 and 9 of Council Directive 2004/83/EC. The Court emphasised that the combination of these provisions made it clear that, in view of the nature and importance of what was at stake should an asylum applicant be returned to his country, it was vital that the assessment of the application, on an individual basis, includes a thorough examination of the substantive claims which are made, and also a specific and full justification of any act which rejects the application.
Court composed of: S. Rizos, Vice-President, President of Chamber D;
G. Papageorgiou, D. Kyrillopoulos, Councillors;
I. Michalakopoulos, Ur. Nikolarakou-Mavromichail, Associate Councillors.
Clerk: Aik. Ripi Triadi.
Relevant International and European Legislation:
Cited National Legislation:
Cited Cases:
| Cited Cases |
| Greece - Council of State, 5 July 2007, 1628/2007 |