Greece - Council of State, 11 October 2005, 3337/2005
| Country of Decision: | Greece |
| Country of applicant: | Afghanistan |
| Court name: | The Council of State, Chamber D |
| Date of decision: | 11-10-2005 |
| Citation: | Council of State 3337/2005 |
Keywords:
| Keywords |
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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.” |
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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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Protection
Description
A concept that encompasses all activities aimed at obtaining full respect for the rights of the individual in accordance with the letter and spirit of human rights, refugee and international humanitarian law. According to Article 2(a) of the Qualification Directive, international protection meansrefugee and subsidiary protection status as defined in (d) and (f). According to Recital 19 of the Qualification Directive “Protection can be provided not only by the State but also by parties or organisations, including international organisations, meeting the conditions of this Directive, which control a region or a larger area within the territory of the State”. According to Annex II of the Asylum Procedures Directive, in the context of safe countries of origin, protection may be provided against persecution or mistreatment by: “(a) the relevant laws and regulations of the country and the manner in which they are applied; (b) observance of the rights and freedoms laid down in the ECHR and/or the International Covenant for Civil and Political Rights and/or the Convention against Torture, in particular the rights from which derogation cannot be made under Article 15(2) of the said European Convention; (c) respect of the non-refoulement principle according to the Geneva Convention; (d) provision for a system of effective remedies against violations of these rights and freedoms. |
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Unaccompanied minor
Description
“’Unaccompanied minors’ means third-country nationals or stateless persons below the age of 18, who arrive on the territory of the Member States unaccompanied by an adult responsible for them whether by law or custom, and for as long as they are not effectively taken into the care of such a person; it includes minors who are left unaccompanied after they have entered the territory of the Member States.” |
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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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Refugee Status
Description
The recognition by a Member State of a third-country national or stateless person as a refugee. |
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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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Child Specific Considerations
Description
Application of a child-sensitive process and assessment of protection status, taking into account persecution of a child-specific nature and the specific protection needs of children. “When assessing refugee claims of unaccompanied or separated children, States shall take into account the development of, and formative relationship between, international human rights and refugee law, including positions developed by UNHCR in exercising its supervisory functions under the 1951 Refugee Convention. In particular, the refugee definition in that Convention must be interpreted in an age and gender-sensitive manner, taking into account the particular motives for, and forms and manifestations of, persecution experienced by children. Persecution of kin; under-age recruitment; trafficking of children for prostitution; and sexual exploitation or subjection to female genital mutilation, are some of the child-specific forms and manifestations of persecution which may justify the granting of refugee status if such acts are related to one of the 1951 Refugee Convention grounds. States should, therefore, give utmost attention to such child-specific forms and manifestations of persecution as well as gender-based violence in national refugee status-determination procedures.” See also the best interests principle. |
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Obligation to give reasons
Description
Obligation on a decision-maker to give reasons for an administrative decision including applications for international protection and decisions taken under the Dublin II Regulation |
Headnote:
Application for annulment of a decision by the Minister of Public Order
The lack of personal persecution of an alien applicant does not preclude the recognition of refugee status if it is shown that there is an objective and well-founded fear of individual persecution in the applicant's country.
The case also addressed the deficient reasoning for the deviation in the Minister for Public Order's decision from the opinion issued by the competent Committee.
Facts:
The applicant, a citizen of Afghanistan, entered Greece and submitted an application for asylum on 21.12.2000. This was rejected by the General Secretary of the Ministry of Public Order. The applicant appealed against that decision before the competent Committee, which issued a majority ruling in favour of recognizing him as a refugee given that “he left his country when he was 15 years old because of the persecution being suffered by his tribe, the Khazars, at the hands of the Taliban; and since then he has lost all trace of his parents and the other members of his family”. The Minister for Public Order, however, rejected the said asylum application on the following grounds: “There is no evidence to show that [the applicant] was subjected to individual persecution by the Authorities in his country because of his race, religion, nationality, social class or political opinion. It is clear that he left his country for economic reasons and that he is using his asylum application to facilitate his stay here with the intention of finding employment and improving his standard of living”.
Decision & reasoning:
The Court held that the contested decision by the Minister was defectively reasoned for the following reasons: Firstly, the contested decision was based on the assumption that recognition of an alien as a refugee requires there to be outright individual persecution, whereas, according to the Court, it is sufficient to show that there is a well-founded fear of persecution. Secondly, the Minister for Public Order – despite the fact that he did not follow the competent Committee's favourable decision – failed to specifically justify his deviation from their ruling, in contravention of the provisions of Article 20(2) of the Administrative Procedure Code.
Outcome:
The application was granted. The decision of the Minister of Public Order was annulled,ordering the repayment of the fee. The State shall bear the applicant's Court Costs. The case was referred back to the Administration (Minister for Public Order)
Subsequent proceedings:
Observations/comments:
The Council of State, Chamber D
A. Tampasi, Vice-president of Chamber D, Presiding in place of the President.
P. Kotsonis, E. Nika, Councillors
I. Tsakopoulos, V. Kintziou, Associate Councillors.
The decision makes no reference to the specific need for protection and guarantees of due process for the applicant as an unaccompanied minor, in accordance with the Convention on the Rights of the Child, even though they were raised in the application for annulment. However, these are taken into consideration in the Court's later decisions (see Council of State decision 4055/2008)
Relevant International and European Legislation:
Cited National Legislation:
Follower Cases:
| Follower Cases |
| Greece - Council of State, 31 December 2008, 4055/2008 |
| Greece – Council of State, 31 December 2008, 4056/2008 |