Greece - Council of State, 8 May 2012, Application No. 1661/2012
Keywords:
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Actor of persecution or serious harm
Description
Per Art. 6 QD actors who subject an individual to acts of serious harm (as defined in Art. 15). Actors of persecution or serious harm include: (a) the State; (b) parties or organisations controlling the State or a substantial part of the territory of the State; (c) non-State actors, if it can be demonstrated that the actors mentioned in (a) and (b), including international organisations, are unable or unwilling to provide protection against persecution or serious harm as defined in Article 7. |
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Exclusion from protection
Description
Exclusion from being a refugee on any of the grounds set out in Article 12 of the Qualification Directive or exclusion from being eligible for subsidiary protection on any of the grounds set out in Article 17 of the Qualification Directive. |
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Humanitarian considerations
Description
“Factors relevant to the consideration of a decision to grant humanitarian protection. Humanitarian protection is 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. Protection involves creating an environment conducive to respect for human beings, preventing and/or alleviating the immediate effects of a specific pattern of abuse, and restoring dignified conditions of life through reparation, restitution and rehabilitation.” The grant of permission tothird country nationals or stateless persons toremain in Member States for reasons not due to a need for international protection but on a discretionary basis on compassionate or humanitarian groundsis not currently harmonised at a European level. However per Art. 15 Dublin II Reg., even where it is not responsible under the criteria set out in the Regulatiosn, aMember Statemay bring together family members, as well as other dependent relatives, on humanitarian grounds based in particular on family or cultural considerations. |
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Inhuman or degrading treatment or punishment
Description
A form of serious harm for the purposes of the granting of subsidiary protection. The Trial Chamber of the International Criminal Tribunal for the Former Yugoslavia in Celibici defined cruel or inhuman treatment as ‘an intentional act or omission, that is an act which, judged objectively, is deliberate and not accidental, that causes serious mental or physical suffering or injury or constitutes a serious attack on human dignity.’ “Ill-treatment means all forms of cruel, inhuman or degrading treatment or punishment, including corporal punishment, which deprives the individual of its physical and mental integrity." |
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Serious non-political crime
Description
"This category does not cover minor crimes nor prohibitions on the legitimate exercise of human rights. In determining whether a particular offence is sufficiently serious, international rather than local standards are relevant. The following factors should be taken into account: the nature of the act, the actual harm inflicted, the form of procedure used to prosecute the crime, the nature of the penalty, and whether most jurisdictions would consider it a serious crime. Thus, for example, murder, rape and armed robbery would undoubtedly qualify as serious offences, whereas petty theft would obviously not. A serious crime should be considered non-political when other motives (such as personal reasons or gain) are the predominant feature of the specific crime committed. Where no clear link exists between the crime and its alleged political objective or when the act in question is disproportionate to the alleged political objective, non-political motives are predominant. The motivation, context, methods and proportionality of a crime to its objectives are important factors in evaluating its political nature. The fact that a particular crime is designated as non-political in an extradition treaty is of significance, but not conclusive in itself. Egregious acts of violence, such as those commonly considered to be of a ‘terrorist’ nature, will almost certainly fail the predominance test, being wholly disproportionate to any political objective. Furthermore, for a crime to be regarded as political in nature, the political objectives should be consistent with human rights principles." |
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Subsidiary Protection
Description
The protection given to a third-country national or a stateless person who does not qualify as a refugee but in respect of whom substantial grounds have been shown for believing that the person concerned, 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, would face a real risk of suffering serious harm as defined in Article 15 of 2004/83/EC, and to whom Article 17(1) and (2) of 2004/83/EC do not apply, and is unable, or, owing to such risk, unwilling to avail himself or herself of the protection of that country.” “Note: The UK has opted into the Qualification Directive (2004/83/EC) but does not (legally) use the term Subsidiary Protection. It is believed that the inclusion of Humanitarian Protection within the UK Immigration rules fully transposes the Subsidiary Protection provisions of the Qualification Directive into UK law. |
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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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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. |
Headnote:
Application for annulment of a decision by the Minister of Public Order.
This case concerned special protection status in accordance with the 1951 Refugee Convention andexclusion from protection of those who have committed a serious crime under “common law”. The crime committed by the applicant (attempted murder of the Indian Ambassador in Romania) does not fall within the concepts of “political”, “composite” or “related” crimes, even if it was carried out because of the offender's political opinions or principles, or with the intent of achieving such aims. The implementation of the exclusion clause is not precluded because of the fact that the party has already served the sentence which was imposed. The judgment regarding the applicant having committed a serious criminal offence was justified. The decision was opposed by a minority. Consideration was given to the severity of the persecution the applicant risked suffering should he return to India and non-refoulement was approved, his deportation was given suspensive effect, and he was given temporary leave to remain on humanitarian grounds.
Facts:
The Applicant, a citizen of India, illegally entered Greece on 11.11.1998 via Bulgaria, and was arrested on the same day, along with some compatriots. On 13.11.2008, while he was being detained pending deportation, he submitted an application to be granted political asylum in which, via an interpreter, he stated that he had left his country because he was afraid of persecution for religious and political reasons. More specifically, the Applicant claimed that he belonged to the Sikh faith and was a member of a pan-Indian student organization as well as being a member of a dissident organisation whose activities aimed to bring about independence for the Khalistan region. The Applicant claimed that as a result of this activity he was wounded by a bullet in the abdominal area, and that he was the victim of harassment by the local authorities, as were other members of his family.
Fearing for his life, the Applicant took a flight to Switzerland. After a seven-month stay he fled to Romania in 1991 and remained there until he arrived in Greece. He also stated that the purpose of his visit to Romania was to meet the Indian Ambassador in Bucharest whom, after an argument and whilst “beside himself” with rage, he tried to kill because the latter, as Chief of the Punjabi Police from 1986 to 1988, was responsible for the deaths of 16,000 Sikhs and for the imprisonment of members of his family. The Bucharest Military Court sentenced the Applicant to ten years in prison for the crime of the particularly serious, aggravated, attempted murder of a representative of a foreign state as well as for firearms offences, because – as part of an organized gang and after preparation – the Applicant and four other Sikhs opened fire on the said Indian Ambassador and his wife on 20.8.1991 and, after following them as they tried to escape, the Applicant injured the Ambassador, causing him permanent disability.
Having been released on parole for good behaviour on 28.4.1998, on 29.4.1998 he submitted an application for political asylum to the Romanian authorities, but this was rejected on 6.11.1998. The Applicant then entered Greece illegally (11.11.1998) and submitted an asylum application. That application was rejected because it was held that the Applicant, whilst in principle having refugee status under the 1951 Convention, should be excluded from the special protection status – implementing Article 1F(b) of the Convention – because of having committed a serious offence of common law. The Applicant brought a quasi-judicial action against that rejection, requesting a review of his application for reasons which would be given during the proceedings. The Minister for Public Order's contested decision 3/443581/30.3.1999, which cited the Advisory Committee's minutes of 11.2.1999, was a second instance rejection of the Applicant's application for special protection status under the 1951 Convention, implementing the Convention's exclusion clause in Article 1F(b).
Decision & reasoning:
The Council of State held that the Administration had given lawful and sufficient reasoning for its decision since it had considered the guiding principles of the UNHCR Handbook relating to the use of common criteria for applying the exclusion clause and, in particular, the Applicant's behaviour which is classed as criminal and not prompted by purely political motives. The Administration found that there was no causal link between the crime that was committed and the purported political objective for carrying it out. The Administration also held that, in view of what had been stated, the political objective was not predominant over the criminal nature of the offence and, therefore, the offence constituted a non-political crime under the terms of the 1951 Convention. The Council of State held that the Administration's judgment – which had assessed the factors which determine the non-political nature of the crime committed by the Applicant – was lawfully and sufficiently reasoned, and it rejected pleas to the contrary as grounds for annulment.
The Council of State held that the particular plea that the offence in question was a “composite” political crime, according to Areios Pagos (Supreme Court) case law, should also be rejected. The Council of State rejected that claim because, as regards implementation of the 1951 Convention, the concepts of a “political” crime, and also “composite” political crimes and crimes “related” to political crimes, are not determined by the relevant domestic law in the country where asylum is being sought. The Council of State ruled that the crime which was committed did not fall within any of the said definitions because case law holds that a “political” crime, as opposed to a common criminal offence, is a crime which is directed against the State with the aim of overthrowing or changing the existing regime i.e. it refers only to crimes of treason or preparatory acts with that intention. “Composite” political crimes or crimes “related” to political crimes are considered to be those which are so closely connected to a political crime that the effect on some legal entity results in the creation of a means to commit a political crime under the foregoing meaning, the political crime then being deemed to have been committed. Furthermore, the Council of State held that any other crime which does not have these features, such as the Applicant's crime, cannot fall within the above-mentioned concepts even if it is carried out by the offender because of his political opinions or principles, or with the intent of achieving such aims. Finally, the Council of State stressed that in view of the stated purpose of establishing the exclusion clause, implementation of clause 1F(b) of the 1951 Convention is not precluded merely by the fact that the person seeking the special protection status of a refugee has already served the sentence which was imposed for the crime he committed, but this factor may be taken into consideration along with other relevant factors when assessing such a crime.
As for the claim that the Administration unlawfully failed to take into consideration the severity of the persecution that the Applicant risked suffering should he return to India compared to the severity of the crime he committed, the Council of State held that it must be rejected as being unfounded. It reached this conclusion because the General Secretary of the Ministry of Public Order's decision 3/443581/30.3.1999 approved non-refoulement of the Applicant to India and, furthermore, suspended the Applicant's deportation from the country and allowed him, for humanitarian reasons, to remain temporarily in order for him to make his own arrangements to go to a country of his choosing. The Council of State also took into account the fact that the General Secretary of the Ministry of Public Order's decision 3/443581/17.9.2001 granted the Applicant, pursuant to his request, permission to stay on humanitarian grounds. This was done (regardless of the Administration's evaluation, as aforementioned, of the extent of the potential persecution of the Applicant should he return to his country of origin) within the context of having weighed up the significance of the absolute nature of the prohibition on refoulement to his country of origin since there is a risk of him being subjected to torture or other inhuman or degrading treatment or punishment.
Outcome:
The application was rejected as inadmissible. The court ordered forfeiture of the fee and required the Applicant to pay the State's legal costs.
Observations/comments:
The Council of State, Chamber D
Judges: P. Pikrammenos, Vice-president, presiding in place of the Chamber's President and Deputy President who were indisposed; Chr. Rammos, P. Kotsonis, Aik. Christoforidou, E. Nika, Councillors; V. Kintziou, Chr. Mpolofi, Associate Councillors. Registrar: Aik. Ripi.
Relevant International and European Legislation:
Cited National Legislation:
| Cited National Legislation |
| New York Protocol to the 1951 Convention relating to the Status of Refugees - Article 1(2) |
Cited Cases:
| Cited Cases |
| CJEU - C-57/09 and C-101/09 Bundesrepublik Deutschland v B and D |
| ECtHR - Daoudi v. France, Application No. 19576/08 |
Other sources:
Cases:
Council of State C.E. 23.02.2001
Council of State M.T. & C.R.R 05.07.2004
Council of State M.D. 25.07.2005
Decision 2661/20.12.2005 by the 1st Chamber of the Five-member Court of Appeal of Athens.