Greece - Council of State, Decision no. 2347/2017, 22 September 2017
| Country of Decision: | Greece |
| Country of applicant: | Syria |
| Court name: | Council of State |
| Date of decision: | 22-09-2017 |
| Citation: | M.D. v the Ministers of Home Affairs and Administration for Reconstruction and Migration Policy, Finance, and Justice and Transparency and Human Rights, Council of State, 2347/2017, 22 September 2017 |
Keywords:
| Keywords |
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First country of asylum
Description
"A country can be considered to be a first country of asylum for a particular applicant for asylum if: (a) he/she has been recognised in that country as a refugee and he/she can still avail himself/herself of that protection; or (b) he/she otherwise enjoys sufficient protection in that country, including benefiting from the principle of non-refoulement; provided that he/she will be re-admitted to that country." Member States may consider an application for asylum as inadmissible if a country which is not a Member State is considered as a first country of asylum for the applicant. |
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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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Non-refoulement
Description
A core principle of international Refugee Law that prohibits States from returning refugees in any manner whatsoever to countries or territories in which their lives or freedom may be threatened. Note: The principle of non-refoulement is a part of customary international law and is therefore binding on all States, whether or not they are parties to the Geneva Convention. |
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Safe third country
Description
Any other country, not being the country of origin, in which an asylum seeker has found or might have found protection. Note: The notion of safe third country (protection elsewhere/first asylum principle) is often used as a criterion of admissibility to the refugee determination procedure. |
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Inadmissible application
Description
Member States may consider an application for asylum as inadmissible pursuant toArticle 25 of the Asylum Procedures Directive if: “(a) another Member State has granted refugee status; (b) a country which is not a Member State is considered as a first country of asylum for the applicant, pursuant to Article 26; (c) a country which is not a Member State is considered as a safe third country for the applicant, pursuant to Article 27; (d) the applicant is allowed to remain in the Member State concerned on some other grounds and as result of this he/she has been granted a status equivalent to the rights and benefits of the refugee status by virtue of Directive 2004/83/EC; (e) the applicant is allowed to remain in the territory of the Member State concerned on some other grounds which protect him/her against refoulement pending the outcome of a procedure for the determination of status pursuant to point (d); (f) the applicant has lodged an identical application after a final decision; (g) a dependant of the applicant lodges an application, after he/she has in accordance with Article 6(3) consented to have his/her case be part of an application made on his/her behalf, and there are no facts relating to the dependant’s situation, which justify a separate application.“ |
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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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Individual threat
Description
An individual threat to a civilian's life or person must be proven in order to establish the serious harm required before an applicant will be eligible for subsidiary protection status on the grounds set out in QD Art. 15(c). “Risks to which a population of a country or a section of the population is generally exposed do normally not create in themselves an individual threat which would qualify as serious harm.” |
Facts:
The appellant left his country of origin, Syria, on 09/06/2016, claiming that there was a real threat to his life because of the political situation there and ISIS. He managed to enter Turkey after three unsuccessful attempts, in which he was treated inhumanely and put in detention. He stayed in Turkey for 1,5 month without making an application for international protection before the local authorities and without integrating into the community there, as he argued that = he had been attacked twice by the “Mafia”, life there was insecure, there was discrimination against Syrians and he could have a better future in Greece. Subsequently, he tried to enter Greece 10 times, among them once he was arrested by the Turkish police, but for a short period of time.
On 04/08/2016, on the Greek island of Lesvos, he filed an asylum application. According to the EU-Turkey statement of March 2016, all new irregular migrants arriving in the Greek islands via Turkey from 20 March 2016 onwards will be returned to Turkey, in line with EU and international law, and the principle of non-refoulement. Officials from EU agencies and other countries, including the UNHCR, will be present to ensure the above measures are implemented and to evaluate the reception conditions in Turkey. Following a personal interview with an expert from the European Asylum Support Office (EASO), and after having taken into consideration the abovementioned statements and the opinion of EASO, the Asylum Office concluded that Turkey would be a safe third country for the applicant. The Court of first instance rejected the application and the applicant requested the reexamination of his application and at the same time he made a request for a personal hearing from the Appeals Committee. Both requests were rejected by the 3rd Independent Appeals Committee.
On 14/09/2016, the applicant filed an appeal before the Council of Sate against the aforementioned decisions, alleging errors and omissions in the administrative procedure as well as failure to consider any damage or risk that the applicant would be exposed to in the event of his return to Syria.
Decision & reasoning:
The Council of state found that the examination was lawfully limited to the admissibility question of his return to Turkey, as a first asylum country or a safe third country in accordance with art. 52 (1) of Law 4375/2016 and art. 34 (1) of the Directive 2013/32/EU. Furthermore, regarding the appellant’s claim on the right to a personal hearing according to the letter of the law (art. 2,14, 46 Directive 2013/32/EU, and 46, 47 of the Charter of Fundamental Rights of the EU) and the findings of the Court of Justice of the EU in C-682/13 (para. 44), the competent authority has the right to decide on the appeal against the decision rejecting the asylum application without a previous hearing of the applicant when the facts leave no doubt about the validity of the impugned judgement, under the condition that in the first instance the applicant had the opportunity of a personal hearing. Therefore, the 3rd Appeals Committee had lawfully reached their decision without the previous hearing of the applicant.
Regarding the issue of safe third country, Turkey was correctly identified as a safe third country according to art. 56 law 4375/2016 and art. 38 Directive 2013/32/EU, given that there was no risk of serious harm to the individual. According to the Court, the argument of the appellant, that he would be exposed to a real risk of serious harm upon return to Turkey, was fairly rejected as the incidents he had experienced were only isolated cases and did not specifically target the individual. Moreover, he did not face any problems with the local authorities during his entire stay in Turkey. Lastly, it was not demonstrated that Syrians are subjected, as a group, to inhuman or degrading treatment by the Turkish authorities.
The appellant’s return to Turkey is in line with the Agreement between EU and Turkey of 18th of March 2016, according to which those migrants whose asylum application is rejected will be returned in Turkey and will receive temporary protection there. The letter of the Turkish Ambassador to the Permanent Representation as well as the letter of the UN High Commissioner for Refugees, that evaluated the situation of migrants in Turkey, were also taken into consideration before the decision. The fact that their content was not disclosed to the applicant did not affect the outcome of the proceedings and did not infringe any of his rights.
Outcome:
Appeal denied.
Observations/comments:
This summary was completed by Danai Spentzou, Human Rights LLM student at Queen Mary University of London.
Relevant International and European Legislation:
Cited National Legislation:
Cited Cases:
Other sources:
The Council of State referred to several of its own cases, including 445/2017, 1661/2012, 3816/2013, 886/2011, 1241/2007, 189/2007, 825/1998, 3503/2009, 5203/1987, 1730/198, 299/2017, 2933/2012, 3920/2006, as well as the Supreme Court case 371/2013 (Areios Pagos).