ECtHR – B.A.C. v. Greece, Application no. 11981/15, 13 October 2016

Facts:

Decision & reasoning:

First, the ECtHR rejected the Greek government’s opinion that the applicant’s asylum request had been “implicitly rejected” and that the applicant had not appealed against this rejection before the Council of State, thus failing to exhaust domestic remedies.  The ECtHR observed that different national authorities, including the police, have considered the asylum application to be pending, and that it would be unreasonable to think that the applicant’s appeal had been “implicitly rejected” within the time-limit prescribed by law. Therefore, the Court rejected the government’s argument that the applicant had not exhausted domestic remedies.

Secondly, the Court recalled its jurisprudence on Article 8 ECHR, particularly with regard to the positive obligations of Contracting States to examine a person’s asylum request promptly in order to ensure that his or her situation of insecurity and uncertainty is as short-lived as possible (e.g.  M.S.S. v. Belgium and Greece [GC], para. 262). In the case in question, the ECtHR advanced, the issue at stake was the failure of the Minister for Public Order, for twelve years, to decide on the applicant’s request for asylum, even though the Advisory Board on Asylum had issued a favourable opinion and the Greek judicial authorities had rejected a request for extradition from the Turkish authorities.

The ECtHR went on to observe the different occasions on which the uncertainty of the applicant’s status negatively affected his private life (attempts to obtain a work permit, apply to university, open a bank account, etc).  In the light of these considerations, the ECtHR found that the competent authorities had failed in their legal obligations under Article 8 ECHR to establish an effective and accessible procedure to protect the right to private life by means of appropriate regulations to guarantee that the applicant’s asylum request is examined within a reasonable time. The same conclusions allowed the Court to find a violation of Article 13 ECHR read in conjunction with Article 8 ECHR.

Thirdly, the ECtHR concurred with the applicant and found that, in view of the applicant’s account and the documentation he provided, his return to Turkey without an ex nunc examination of his personal circumstances would lead to a violation of Article 3 ECHR read in conjunction with Article 13 ECHR.

In view of its conclusion with regard to Article 8 ECHR, the ECtHR found it unnecessary to rule on the alleged violation of Article 14 ECHR.

Outcome:

The ECtHR found a violation of Article 8 ECHR, and Article 13 ECHR read in conjunction with Article 8 ECHR. It also found that the applicant’s removal to Turkey without an ex nunc assessment of his personal circumstances would lead to a violation of Article 3 ECHR read in conjunction with Article 13 ECHR.

The applicant was awarded 4,000 euros in respect of non-pecuniary damage.