Greece - Council of State, 15 November 2005, Application No. 815/2006
Keywords:
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Effective remedy (right to)
Description
A general principle of EU law now set out in Article 47 of the Charter of Fundamental Rights: "Everyone whose rights and freedoms guaranteed by the law of the Union are violated has the right to an effective remedy before a tribunal in compliance with the conditions laid down in this Article.” “[It] is based on Article 13 of the ECHR: ‘Everyone whose rights and freedoms as set forth in this Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.’ However, in Community law the protection is more extensive since it guarantees the right to an effective remedy before a court. The Court of Justice enshrined the principle in its judgment of 15 May 1986 (Case 222/84 Johnston [1986] ECR 1651; see also judgment of 15 October 1987, Case 222/86 Heylens [1987] ECR 4097 and judgment of 3 December 1992, Case C-97/91 Borelli [1992] ECR I-6313. According to the Court, this principle also applies to the Member States when they are implementing Community law. The inclusion of this precedent in the Charter is not intended to change the appeal system laid down by the Treaties, and particularly the rules relating to admissibility. This principle is therefore to be implemented according to the procedures laid down in the Treaties. It applies to the institutions of the Union and of Member States when they are implementing Union law and does so for all rights guaranteed by Union law.” |
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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. |
Headnote:
Within the meaning of the provisions of Article 2(1) and Article 3 para. 1, 4, 5, 7 and 8 of Presidential Decree 61/1999, for an appeal brought against an initial negative decision to be rejected for being out of time, there is no requirement for there to have been a prior judgment by the Committee formed under Article 3(5) which – as is clear from the regulations concerning its composition and operation – is responsible for considering the substantive conditions for recognising refugee status to a foreigner.
Facts:
The first two Applicants, A. and S. H., submitted an application for political asylum for themselves and their two minor children (L. and L., the third and fourth Applicants respectively) which was rejected by the General Secretary of the Ministry for Public Order's decision 4/154494/3.10.2002. The decision was served at Peristeri Town Hall on 17.12.2002, in accordance with the provisions of the Code of Criminal Procedure concerning service of papers to persons of unknown address. On 25.7.2003, the Applicants filed an appeal contesting, inter alia, the legality of the manner in which the General Secretary of the Ministry for Public Order's decision was served. In response to that appeal petition, the Deputy Chief of the 3rd Division of the Aliens Directorate of the Hellenic Police HQ issued decree 4/154494-513383/13.10.2003 which stated that the appeal “cannot be accepted for discussion” as being filed out of time beyond the limit of thirty (30) days from service of the decision which rejected the application for recognition of refugee status, as stipulated in Article 3(3) of Presidential Decree 61/1999. In their application to the Council of State, the Applicants requested annulment of the aforementioned decree 4/154494-513383/13.10.2003 from the Deputy Chief of the 3rd Division of the Aliens Directorate of the Hellenic Police HQ.
Decision & reasoning:
The Council of State noted that it was evident from the aforementioned provisions of Presidential Decree 61/1999 that it is the Minister for Public Order who has jurisdiction over any appeal against a decision by the General Secretary of the Ministry for Public Order by which a foreigner's application for recognition of refugee status has been rejected. As head of the service, it is that Minister who has prime responsibility for all decrees issued in connection with the duties conferred on the Ministry under the law. The Minister's jurisdiction under the said provisions is not limited to checking that a person meets the conditions for refugee status, but also includes ascertaining whether an appeal has been filed in due time. As part of the latter process, any claims disputing the valid service of the General Secretary's negative decision to the person concerned, or any claims invoking force majeure as justification for filing an appeal beyond the set deadline, can be examined. Finally, within the meaning of the same provisions, for an appeal brought against an initial negative decision to be rejected for being out of time there is no requirement for there to have been a prior judgment by the Committee formed under Article 3(5) which – as is clear from the regulations concerning its composition and operation – is responsible for considering the substantive conditions for recognising the refugee status of a foreigner.
Concerning the decree in question, the Council of State held that since it is, as set out above, the Minister for Public Order who has jurisdiction over the appeal and examination of the Applicants' claims concerning filing the appeal in due time, no other body was competent to issue the contested decree denying the appeal unless they had been delegated the responsibility by the Minister. The Council of State also dismissed as legally unfounded the assertions in document 4/154494-233702/18.7.2005 giving the opinion of the Administration (Aliens Directorate of the Hellenic Police HQ) to the Court that, within the meaning of Presidential Decree 61/1999, the Minister had jurisdiction over appeals filed in due time only.
Therefore, as was rightly alleged, the Council of State held that the application in question should be accepted and the contested decree should be annulled, and that the case should be referred back to the Administration for due examination of the Applicants' appeal against the General Secretary of the Ministry for Public Order's decision 4/154494/3.10.2002 rejecting the application for recognition of refugee status.
Outcome:
The Council of State accepted the application and annulled decree 4/154494-513383/13.10.2003 by the Deputy Chief of the 3rd Division of the Aliens Directorate of the HellenicPolice HQ. Additionally, the Council of State referred the case back to the Administration as set out in the reasoning, ordered the fee to be returned, and ordered the State to pay the Applicants' court costs.
Observations/comments:
Court composed of: M. Vrontakis, Vice-president, President of Chamber D;
G. Papageorgiou, E. Nika, Councillors;
I. Mazos, O. Nikolarakou, Associate Councillors.
The Clerk was A. Triadi, Clerk of Chamber D.