Greece - Council of State, 5 May 2009, Application No. 1524/2009
Keywords:
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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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Relevant Documentation
Description
“All documentation at the applicants disposal regarding the applicant's age, background, including that of relevant relatives, identity, nationality(ies), country(ies) and place(s) of previous residence, previous asylum applications, travel routes, identity and travel documents and the reasons for applying for international protection.” |
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Subsequent application
Description
Where a person who has applied for refugee status in a Member State makes further representations or a subsequent application in the same Member State. Member States may apply a specific procedure involving a preliminary examination where a decision has been taken on the previous application or where a previous application has been withdrawn or abandoned. As with all aspects of the procedures directive, the same provisions will apply to applicants for subsidiary protection where a single procedure applies to both applications for asylum and subsidiary protection. |
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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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Refugee Status
Description
The recognition by a Member State of a third-country national or stateless person as a refugee. |
Headnote:
The petition for an ab initio examination of the asylum application was rejected by the General Secretary of the Ministry of Public Order (decision being appealed in this case) because the evidence submitted was not deemed to be new and crucial. That ruling in the contested decision was flawed because the General Secretary did not have the authority to decide whether the Applicant had refugee status deeming the evidence submitted (a medical report which linked clinical findings to torture) to not be crucial for granting asylum. Instead, he should have ordered an ab initio examination of the asylum application, making the Administration comply with the relevant procedure. If, during that procedure, it was found that there was a legitimate case, then the Administration should have recognised the Applicant as a refugee.
Facts:
After the rejection of the application he had submitted to obtain recognition of his refugee status within the meaning of the 1951 Convention, the Applicant responded with his petition of 24.6.2003 for an ab initio examination of his application for asylum. In support of that petition to have his case reviewed, the Applicant adduced and produced – as new and (to him) crucial evidence – a report by the Medical Director of the Medical Rehabilitation Centre for Torture Victims (M.R.C.T.V.) which confirmed that the Applicant had been “subjected to systematic beatings with clubs and batons, particularly to the back of his head where there is a 1 cm scar. He was kept blindfolded in isolation for a period which cannot be determined. He was also sprayed with icy water.” The conclusion of the doctor who wrote the said report was that the clinical findings were consistent with what she had observed in similar cases of examining victims of torture and that, based on her experience and knowledge of examining victims of torture, the subject “was a victim of torture and he continues to suffer the physical and psychological consequences of it.” However, the said petition for an ab initio examination of the application for asylum was rejected by the contested decision by the General Secretary of the Ministry of Public Order, which followed the Departmental recommendation of 5.9.2003 that the said petition should not be accepted because the evidence submitted was not considered to be new and crucial within the meaning of Article 5 of Presidential Decree 61/1999. Specifically, the recommendation (which also constituted the justification in the contested decision) stated the following: “1. The Applicant's claim about being ideologically opposed to his country's regime was taken into account during the initial examination of his application for asylum. 2. The submitted report from the M.R.C.T.V., which was adduced after the rejection of his application, cannot be regarded as a reliable criterion for recognition of refugee status since the few findings it refers to (a 1 cm scar on the back of his head) quite possibly have various causes other than torture, especially given that they were inflicted, as he himself stated, around 14 years ago. 3. The application for asylum was submitted in order to facilitate his establishment in our country in his search for a better life.”
Decision & reasoning:
The Council of State (CoS), having cited the relevant domestic and international law, held that the content of the reasoning of the contested act rendered the act defective. That was because, at that stage, the General Secretary did not have the authority to decide whether the Applicant had refugee status deeming the evidence submitted (which linked clinical findings to torture) to not be crucial for granting asylum. The CoS pointed out that the General Secretary should instead have – based on the said evidence – ordered an ab initio examination of the asylum application, making the Administration comply with the relevant procedure established by Articles 2 and 3 of Presidential Decree 61/1999. If, during that procedure, it was found that there was a legitimate case, then the Administration should have recognised the Applicant as a refugee. Therefore, the CoS held that this appeal should be accepted, as the Applicant had correctly claimed, and that the General Secretary of the Ministry of Public Order's act of 17.9.2003 should be annulled. It held that it was unnecessary and irrelevant to consider the other grounds for annulment.
Outcome:
The CoS accepted the appeal, annulled the General Secretary of the Ministry of Public Order's act of 17.09.2003 as set out in the reasoning, ordered the State to pay the Applicant's legal expenses and ordered that the fee be returned.
Observations/comments:
Court composed of: P. Pikrammenos, Vice-President of the Council of State, presiding in place of the President of the Division and the Deputy President who were both unavailable; Aik. Christoforidou, D. Gratsias, Councillors; Chr. Bolofi, I. Michalakopoulos, Associate Councillors. Registrar: Aik. Ripi.
Relevant International and European Legislation:
Cited National Legislation:
Cited Cases:
| Cited Cases |
| Greece - Council of State, 12 July 2005, 2232/2005 |
Follower Cases:
| Follower Cases |
| Greece - Council of State, 25 October 2011, Application No. 3328/2011 |