Greece - Special Appeal Committee, 20 June 2012, H.K. v. the General Secretary of the (former) Ministry of Public Order, Application No. 95/48882
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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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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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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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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Refugee sur place
Description
In the EU context, a person granted refugee status based on international protection needs which arose sur place, i.e. on account of events which took place since they left their country of origin. In a global context, a person who is not a refugee when they leave their country of origin, but who becomes a refugee, that is, acquires a well-founded fear of persecution, at a later date. Synonym: Objective grounds for seeking asylum occurring after the applicant's departure from his/her country of origin Note: Refugees sur place may owe their fear of persecution to a coup d'état in their home country, or to the introduction or intensification of repressive or persecutory policies after their departure. A claim in this category may also be based on bona fide political activities, undertaken in the country of residence or refuge. |
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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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Religion
Description
One of the grounds of persecution specified in the refugee definition under Article 1A ofthe1951 Refugee Convention. According to the Qualification Directive, the concept of religion includes in particular the holding of theistic, non-theistic and atheistic beliefs, the participation in, or abstention from, formal worship in private or in public, either alone or in community with others, other religious acts or expressions of view, or forms of personal or communal conduct based on or mandated by any religious belief. |
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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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Death penalty / Execution
Description
Capital punishment; judicially pronounced sentence of death as a legally sanctioned punishment for criminal activity. Considered to be a form of serious harm for the purposes of the granting of subsidiary protection. |
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Discrimination
Description
Any distinction, exclusion, restriction or preference which is based on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status, and which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise by all persons, on an equal footing, of all rights and freedoms. |
Headnote:
This case involved recognition of refugee status under Article 1A(2) of the 1951 Convention on grounds of religious beliefs.
More specifically, it was held that the arrest and torture the Applicant suffered at the hands of his father and the State authorities because of his Christian faith, the risk of being executed for apostasy because he was baptised in Greece, and the risk of being arrested and maltreated again should he return to Iran, constituted persecution under Article 1A(2) of the 1951 Convention, the actor of persecution being the State. Furthermore, being forced to conceal one's religious beliefs and/or proclaim belief in another religionin order to avoid persecution and/or deprivation of basic rights constitutes a breach of religious freedom under Article 9 of the ECHR and also the related case law of the ECtHR.
Facts:
The Applicant was an Iranian citizen. Before fleeing the country, and while he was studying at the University of Tehran, he worked for the Ministry of Intelligence and Security. His father was working for the same Ministry, specifically for the Military Corps of the Revolutionary Guards (Sepah). The Applicant converted to Christianity with fellow students in Iran, a fact which was first noticed by his family, with the result that he suffered cruel and degrading treatment by his father and brother which reached the point of becoming life-threatening – beatings and being burned with a hot iron, hot water and cigarettes – whilst being imprisoned in the basement of their home. His family disowned him and handed him over to the authorities in Iran; he was then held in the Ministry of Justice's detention centre where he suffered further torture for 20 days before being handed over to his father, a member of the Revolutionary Guards, and imprisoned in the basement of their home. He managed to escape with the help of his sister, who knew that his parents were planning to kill him, and then fled the country with the help of a Christian priest. He submitted an application for asylum in Greece and was baptised as a Christian in 2003. In 2005, the Applicant illegally left Greece and went to England because he was afraid of his brother who had come to Greece to look for him. On his return to Greece, he became involved in drug use, and in 2012 he entered a drug rehabilitation programme. The application for asylum was rejected by the General Secretary of the Ministry of Public Order's decision 95/48882 of 18.7.2004, an appeal was lodged against this and it was heard on 5.3.2012.
Decision & reasoning:
The Committee recognised the Applicant's refugee status under Article 1A(2) of the 1951 Convention on the grounds of religious beliefs.
Assessing the Applicant's credibility, the Committee held that the claims were highly likely to be true. It believed that the Applicant's conversion to Christianity was sincere and that his claims about his arrest and torture because of his religious beliefs were true.
The claim that his brother had come to Greece to look for him was also considered to be probably true, given that there were references in reliable sources about members of the Iranian diaspora being intimidated by the Iranian authorities.
As for legally establishing a fear of persecution, the Committee held that the subjective element of the fear of persecution had been met because the Applicant had expressed his reluctance to be re-subjected to his country's protection, and that the objective element had also been met by assessing the Applicant's claims in conjunction with the situation in his country.
Regarding the justification of a fear of persecution, the Committee referred to the facts which it deemed to be true, and specifically:
– the fact that his father was a member of the Iranian Ministry for Intelligence's Revolutionary Guard.
– the torture the Applicant had suffered at the hands of his father and by the State authorities which had been confirmed by a medical report.
– the Applicant's open change of religion in Greece, confirmed by a baptism certificate which the Committee assessed separately.
The Committee believed that there was a reasonable probability that the Applicant's views were known to the Iranian authorities, given his father's status and his previous arrest.
For those reasons the Committee considered that the Applicant would not be able to conceal his religious beliefs should he return to his country.
Reference was made to the death penalty for apostasy and/or atheism in Iran, as well as the serious discrimination and restrictions suffered by non-Muslim minorities.
This created a reasonable belief that, should he return to Iran, the Applicant would suffer persecution because of changing his religion and that he could even be at risk of being executed.
Even if the death penalty were not imposed, he would be at risk of arrest and other forms of maltreatment by either his father or the Iranian authorities which would constitute persecution within the meaning of Article 1A(2) ; and, in any case, not declaring faith in one of the recognised religions in Iran would lead to him having no recognised social status.
The Committee held that being forced to conceal his religious beliefs or to proclaim faith in another religion in order to avoid discrimination and/or punishment would, under the ECHR, constitute a violation of his freedom of religion.
Those forms of potential harm constituted persecution for reasons of religious belief within the meaning of Article 1A(2) of the 1951 Convention. The actor of persecution was the State; and not only did the State not offer the Applicant adequate protection, but it was considered certain that the State would persecute him to the point of death.
Based on the above, the Committee accepted that the Applicant's fear was truly well-founded within the meaning of Article 1A(2) of the 1951 Convention and, specifically, it accepted that his religious conversion while still in his own country, his persecution and torture, and the Christian beliefs that both his family and the Iranian authorities attributed to him, constituted reasons for potential persecution and clearly fell within the definition of persecution as a reason to recognise refugee status.
Outcome:
The Committee recognised the Applicant's refugee status under Article 1A(2) of the 1951 Convention on the grounds of religious beliefs.
Observations/comments:
Committee composed of:
A.K., Ministry for the Interior official, vice-President,
B.A., UNHCR representative, additional member,
S.A., a lawyer selected from the relevant list compiled by the National Commission for Human Rights, additional member.
Relevant International and European Legislation:
Cited National Legislation:
Cited Cases:
| Cited Cases |
| ECtHR - Dimitras & Others v. Greece, Application Nos. 42837/06, 3269/07, 35793/07 and 6099/08 |
Other sources:
– UN High Commissioner for Refugees, Guidelines on International Protection No. 6: Religion-Based Refugee Claims under Article 1A(2) of the 1951 Convention and/or 1967 Protocol relating to the Status of Refugees, 28 April 2004, HCR/GIP/04/06
– Home Office, Country of Origin Information Report: Iran, October 2004
– Home Office, Country of Origin Information Report: Iran, August 2010
– Home Office, Country of Origin Information Report: Iran, 28.6.2011
– Immigration and Refugee Board Of Canada, Iran, Treatment by Iranian authorities of relatives and persons who have left Iran and claimed refugee status, January 2010
– United states Commission on International Religious Freedom, USCIRF Annual Report 2010-Countries of Particular Concern: Iran, 29 April 2010
– Norwegian Country of Origin Information Centre (Land info), “Christians and converts in Iran” 10.6.2009
– Human Rights Watch, “Evangelical Christians targets of serious persecution” 30.9.2011