Greece - Appeal Committee of Vyronas, 23 April 2013, Application No. 4/1188365
Keywords:
| Keywords |
|
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. |
|
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.” |
|
Individual assessment
Description
The carrying out of an assessment on an individual and personal basis. In relation to applications for international protection, per Article 4(3) of the Qualification Directive, this includes taking into account: (a) all relevant facts as they relate to the country of origin at the time of taking a decision; (b) the relevant statements and documentation presented by the applicant; “(c) the individual position and personal circumstances of the applicant, including factors such as background, gender and age, so as to assess whether, on the basis of the applicant's personal circumstances, the acts to which the applicant has been or could be exposed would amount to persecution or serious harm; (d) whether the applicant's activities since leaving the country of origin were engaged in for the sole or main purpose of creating the necessary conditions for applying for international protection, so as to assess whether these activities will expose the applicant to persecution or serious harm if returned to that country; (e) whether the applicant could reasonably be expected to avail himself of the protection of another country where he could assert citizenship.” |
|
Personal circumstances of applicant
Description
The range of factors such as background, gender, age, and individual position which must to be taken into account in the assessment of an application for international protection per Article 4(3)(c) of the Qualification Directive. |
|
Trafficking in human beings
Description
"The recruitment, transportation, transfer, harbouring or reception of persons, including the exchange or transfer of control over those persons, by means of the threat or use of force or other forms of coercion, of abduction, of fraud, of deception, of the abuse of power or of a position of vulnerability or of the giving or receiving of payments or benefits to achieve the consent of a person having control over another person, for the purpose of exploitation. A position of vulnerability means a situation in which the person concerned has no real or acceptable alternative but to submit to the abuse involved. Exploitation includes, as a minimum, the exploitation of the prostitution of others or other forms of sexual exploitation, forced labour or services, including begging, slavery or practices similar to slavery, servitude, or the exploitation of criminal activities, or the removal of organs." |
|
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." |
|
Refugee Status
Description
The recognition by a Member State of a third-country national or stateless person as a refugee. |
|
Membership of a particular social group
Description
One of the grounds of persecution specified in the refugee definition per Article 1A ofthe1951 Refugee Convention. According to the Qualification Directive, membership of a particular social group means members who share an innate characteristic, or a common background that cannot be changed, or share a characteristic or belief that is so fundamental to identity or conscience that a person should not be forced to renounce it, and that group has a distinct identity in the relevant country, because it is perceived as being different by the surrounding society. Depending on the circumstances in the country of origin, a particular social group might include a group based on a common characteristic of sexual orientation. Sexual orientation cannot be understood to include acts considered to be criminal in accordance with national law of the Member States: Gender related aspects might be considered, without by themselves alone creating a presumption for the applicability of this concept. |
|
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 concerned forced child labour in ther country of origin and sexual exploitation of the daughter of an Ethiopian father and an Eritrean mother, strained relations between the two countries, mass expulsions on the basis of ethnic origin, absence of a family network in the country of origin, total illiteracy, unequal treatment of single women, and an inability to integrate into society.
In relation to the absence of a family network, the case considered the stigma which may be suffered as a member of the particular social group of “single women in Ethiopia”.
Should she return to Ethiopia, it was considered likely that the Applicant would be totally ostracised to such an extent that she would be unable to integrate into society and enjoy her legal rights.
Facts:
The Applicant was an Ethiopian citizen and her mother's ethnic origin was Eritrean, because of which she was expelled from Ethiopia with her two daughters when the Applicant was 6 months old. After her mother's death a neighbouring family took charge of her care and took her to Sudan with them, and she had not seen her sister since then. She worked as a maid for the family, looking after their grandchildren, without being paid or provided with health care, and she was forbidden to leave the house. She was not given any education and, therefore, was totally illiterate. During her teenage years she suffered sexual violence from the family's father, and the family's oldest son attempted to rape her. She was treated in a hospital-like institution and the family arranged to have her taken to Europe. She arrived in Greece with a group of people, without knowing where she was. She was homeless at first and since then she had occasionally been offered accommodation in various homes. She had no identity papers. She submitted an application for asylum on 21.9.2010 whilst she was in detention. This was examined in a fast-track procedure and was rejected by the Chief of Attica Immigration Department's decision 116149 – DKA [State Security Division] 04/1188365 of 29.10.2010. She then, on 5.1.2011, submitted an appeal against the negative decision. The Applicant appeared before the 2nd Committee on 17.1.2013 having been summoned by its president, accompanied only by an interpreter and not an advisor. The interview was not completed, partly because they ran out of time and partly because there was evidence that the Applicant was a victim of human trafficking. The Committee referred the Applicant to services offering assistance to victims of trafficking and asked her to appear again on 13.2.2013. She did this, and requested an adjournment due to the fact that her advisor was unavailable. The Committee accepted and asked her to appear before it again on 12.3.2013, and she attended on that date, accompanied by an advisor, to have her application examined.
Decision & reasoning:
The Committee compared what the Applicant reported with reports by international organisations on the situation in Eritrea and Ethiopia and accepted them as true. It made extensive reference to the strained relations between the two countries and the persecution of citizens whose ethnic origins were from the opposing country. It went on to highlight the high levels of sexual and labour exploitation of young girls in the country of origin and their victimisation by human trafficking gangs.
The Committee held the the Applicant's many years of absence from the country of origin, the lack of a family network, and her transportation in the context of trafficking constituted the subjective element of fear. As for the objective element, the Committee took into consideration, in addition to the above, the way single women are treated in the country of origin, their risk of becoming victims of human trafficking, and the difficulty the Applicant would have in gaining recognition of her nationality by the authorities.
The Committee went on to assess the prospect of the Applicant being harmed by State actors. It particularly focussed on the social stigma the Applicant would suffer in her capacity as a single woman, especially given her past victimisation. It also found that the Ethiopian State was unable to address social discrimination or physical attacks against women. Finally, it held that the absence of documentary evidence of her nationality would make it difficult for the Applicant to enjoy full legal rights.
In conclusion, as regards persecution, the Committee took into consideration forced labour, the cumulative effects of the various forms of discrimination which could make life in her country of residence intolerable, and also her gender. All of the above made the Applicant a member of the particular social group of “single women in Ethiopia”.
Outcome:
Having verified the conditions, the Committee held that the appeal was substantially well-founded and it recognised the Applicant's refugee status.
Observations/comments:
Committee composed of:
Stamatios Georgoulis, President
Athina Simogolou, Regular member
Stergios Mitas, Regular member
Alexandra Baka, clerk
Relevant International and European Legislation:
Cited National Legislation:
Cited Cases:
| Cited Cases |
| ECtHR - Rantsev v Cyprus and Russia (Application no. 25965/04) |