Greece - Council of State, 4 October 2011, Application No. 3023/2011
Keywords:
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Personal interview
Description
"The process of questioning or talking with a person in order to obtain information or determine the personal qualities of the person. An interview is a common step in the adjudication of an application for refugee or other immigration status.” An applicant for asylum must be given the opportunity of a personal interview subject to the provisions of the Asylum Procedures Directive: - A personal interview must normally take place without the presence of family members unless considered necessary for an appropriate examination. - It must be conducted under conditions which allow applicants to present the grounds for their applications in a comprehensive manner and which ensure appropriate confidentiality. - the person who conducts the interview must be sufficiently competent to take account of the personal or general circumstances surrounding the application, including the applicant’s cultural origin or vulnerability, insofar as it is possible to do so - interpreters must be able to ensure appropriate communication between the applicant and the person who conducts the interview but it need not necessarily take place in the language preferred by the applicant if there is another language which he/she may reasonably be supposed to understand and in which he/she is able to communicate. - Member States may provide for rules concerning the presence of third parties at a personal interview. - a written report must be made of every personal interview, containing at least the essential information regarding the application as presented by the applicant - applicants must have timely access to the report of the personal interview and in any case as soon as necessary for allowing an appeal to be prepared and lodged in due time." |
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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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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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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:
The case involved the rejection of an asylum application by an Iranian citizen of Kurdish origins who cited a fear of persecution because of his religious opinions and, specifically, having become a Christian. In support of his claims he submitted his baptism certificate and invoked the punishment stipulated by the legal system in his country of origin for changing his religion. The Minister for Public Order's decision on the party's application was annulled for being insufficiently reasoned.
Facts:
The Applicant, an Iranian of Kurdish descent, entered Greece illegally. On 25.10.2001, he submitted an application for recognition of his refugee status at the Athens Immigration Department. During his verbal interview, the Applicant stated that he was from a Sunni Muslim family of Kurdish origins; that his mother, until marrying his father, had been a Protestant Christian; that he himself had been actively involved in Christianity, obtaining Christian books; that he had been imprisoned for 3 and a half months because of his Christian opinions; and, finally, that having been released after the intervention and personal guarantee of a relative, he left his country because he would have faced persecution from the harsh, theocratic Iranian regime if he defended his religious beliefs. Furthermore, he claimed that upon return he would be at risk of being put to death by stoning, which is the punishment imposed on Muslims who change faith. Along with the above application the Applicant submitted a certificate from the “Apostolic Church of Christ” regarding his baptism. The above application was rejected by decision 95/41423/17.9.2002 of the General Secretary of the Ministry of Public Order, giving the following justification: “There is no evidence to show that he was subjected to individual persecution by the Authorities in his country because of his race, religion, nationality, social group or political opinion. It is clear that he left his country to seek employment and to improve his standard of living.” The Applicant appealed against that decision before the Minister for Public Order. He then appeared before the Special Advisory Committee on 4.9.2003, he replied to the questions posed by each Committee member, repeated his claims as referred to above, and he invoked the baptism certificate which he had already submitted. The said Committee, based on the existing evidence, gave a majority opinion in favour of accepting the appeal because the Applicant met the 1951 Convention's conditions for recognition of refugee status since “coming from a Muslim family, he converted to Christianity which may expose him to persecution in his own country." However, the Minister for Public Order's contested decision 9135/41423/5.3.2004 rejected the appeal and the application to be granted asylum, giving the same basic justification that was given in the General Secretary's decision 95/41423/17.9.2002, as above, and he gave the Applicant a 3-month deadline to go voluntarily to a country of his own choice.
Decision & reasoning:
The Council of State (CoS) began by referring to the relevant international and domestic legislation, especially Article 20 of the Administrative Procedure Code which states that “1. Where the law provides for a prior opinion (normal or binding) before issuing an administrative act, that opinion shall be given pursuant to a request from the deciding authority. The opinion...shall be in writing, justified, and its contents shall be up to date. 2. The body which has the deciding power may not issue an act with content which is not in accord with the content of the binding opinion. Non-acceptance of a positive binding opinion or recommendation, or deviating from a non-binding opinion, must be specifically justified.” Based on the above, the CoS held that the contested ministerial decision was deficiently justified, as the Applicant had justly alleged. The CoS held that the Minister for Public Order had rejected the Applicant's appeal, merely repeating, in essence, the justification given in the General Secretary's decision 95/41423/17.9.2002 (which the appeal was contesting) without specifically justifying, as required by Article 20(2) of the Administrative Procedure Code, his deviation from the opinion (which was, in principle, justified in view of the specific claims which had been made during the general administrative procedure and the evidence which had been presented (the baptism certificate)) which had been given by the Special Committee set up under Article 3(5) of Presidential Decree 61/1999.
Outcome:
The CoS accepted the application, annulled the Minister for Public Order's decision 9135/41423/5.3.2004, ordered the State to pay the Applicant's legal expenses and ordered the return of the fee.
Observations/comments:
Court composed of: Ath. Rantos, Vice-president, presiding in place of the President of the Chamber who was indisposed; G. Papageorgiou, K. Kousoulis, Councillors; Il. Mazos, V. Kintziou, Associate Councillors. The Clerk was Nik. Athanasiou.