Greece - Special Appeal Committee, 26 June 2011, Application No. 95/126761
Keywords:
| Keywords |
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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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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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Torture
Description
“Any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him/her or a third person information or a confession, punishing him/her for an act s/he or a third person has committed or is suspected of having committed, or intimidating or coercing him/her or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions.” |
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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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Family unity (right to)
Description
“In the context of a Refugee, a right provisioned in Article 23 of Council Directive 2004/83/EC and in Article 8 of Council Directive 2003/9/EC obliging Member States to ensure that family unity can be maintained. Note: There is a distinction from the Right to Family Life. The Right to Family Unity relates to the purpose and procedural aspects of entry and stay for the purpose of reuniting a family, in order to meet the fundamental right enshrined in the Charter of Fundamental Rights of the European Union.” “A right to family unity is inherent in the universal recognition of the family as the fundamental group unit of society, which is entitled to protection and assistance. This right is entrenched in universal and regional human rights instruments and international humanitarian law, and it applies to all human beings, regardless of their status. ….Although there is not a specific provision in the 1951 Refugee Convention and its 1967 Protocol, the strongly worded Recommendation in the Final Act of the Conference of Plenipotentiaries reaffirms the ‘essential right’ of family unity for refugees.” |
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Membership of a particular social group
Description
One of the grounds of persecution specified in the refugee definition per Article 1A ofthe1951 Refugee Convention. According to the Qualification Directive, membership of a particular social group means members who share an innate characteristic, or a common background that cannot be changed, or share a characteristic or belief that is so fundamental to identity or conscience that a person should not be forced to renounce it, and that group has a distinct identity in the relevant country, because it is perceived as being different by the surrounding society. Depending on the circumstances in the country of origin, a particular social group might include a group based on a common characteristic of sexual orientation. Sexual orientation cannot be understood to include acts considered to be criminal in accordance with national law of the Member States: Gender related aspects might be considered, without by themselves alone creating a presumption for the applicability of this concept. |
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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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Death penalty / Execution
Description
Capital punishment; judicially pronounced sentence of death as a legally sanctioned punishment for criminal activity. Considered to be a form of serious harm for the purposes of the granting of subsidiary protection. |
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Discrimination
Description
Any distinction, exclusion, restriction or preference which is based on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status, and which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise by all persons, on an equal footing, of all rights and freedoms. |
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Gender Based Persecution
Description
‘Gender-related persecution’ is used to encompass the range of different claims in which gender is a relevant consideration in the determination of refugee status. Gender refers to the relationship between women and men based on socially or culturally constructed and defined identities, status, roles and responsibilities that are assigned to one sex or another. Gender is not static or innate but acquires socially and culturally constructed meaning over time. Gender-related claims may be brought by either women or men, although due to particular types of persecution, they are more commonly brought by women. Gender-related claims have typically encompassed, although are by no means limited to, acts of sexual violence, family/domestic violence, coerced family planning, female genital mutilation, punishment for transgression of social mores, and discrimination against homosexuals." |
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Dependant (Dependent person)
Description
“While there is no internationally recognized definition of dependency, UNHCR uses an operational definition to assist field staff in the work with individual cases: - Dependent persons should be understood as persons who depend for their existence substantially and directly on any other person, in particular because of economic reasons, but also taking emotional dependency into consideration. - Dependency should be assumed when a person is under the age of 18, and when that person relies on others for financial support. Dependency should also be recognized if a person is disabled not capable of supporting him/herself. - The dependency principle considers that, in most circumstances, the family unit is composed of more that the customary notion of a nuclear family (husband, wife and minor children). This principle recognizes that familial relationships are sometimes broader than blood lineage, and that in many societies extended family members such as parents, brothers and sisters, adult children, grandparents, uncles, aunts, nieces and nephews, etc., are financially and emotionally tied to the principal breadwinner or head of the family unit. 14. UNHCR recognizes the different cultural roots and societal norms that result in the variety of definitions of the family unit. It therefore promotes a path of cultural sensitivity combined with a pragmatic approach as the best course of action in the process of determining the parameters of a given refugee family.“ In the context of applications for protection, applications may be made on behalf of dependants in some instances per Art 6 APD. In the context of the Dublin II Regs dependency may be grounds for evoking the humanitarian clause (Art. 15) in order to bring dependent relatives together. In the context of family reunification a condition precedent in the case of some applicants is a relationship of dependency. “The principle of dependency requires that economic and emotional relationships between refugee family members be given equal weight and importance in the criteria for reunification as relationships based on blood lineage or legally sanctioned unions… |
Headnote:
This was an appeal against the rejection of an application for asylum before the Appeal Committees formed pursuant to Articles 26 and 32 of Presidential Decree 114/2010; and against the Minister for Citizen Protection's decisions 5401/3-498356 dated 11.2.2011 and 4000/1/67-f dated 18.5.2011. The rejection of the application (and the legal consequences arising from the rejection) was an excusable error, due to the body issuing the decision having adopted misguided practices. The fear of persecution was based on membership of a particular social group. The domestic violence endured by the Applicant in the form of psychological stress and physical violence at the hands of her husband, in conjunction with the absence of State protection, constitutes a type of gender based persecution because those actions are detrimental to human dignity and physical integrity. Similarly, her non-conformist behaviour meant that she was exposed to the State's strict laws and practices which imposed disproportionately harsh punishment on women accused of having sexual relations outside marriage.
It was held that the implementation of laws (which may be derived from traditional or cultural norms and practices such as Sharia) which conflict with international human rights standards, and also the disproportionately harsh punishment imposed for non-compliance with a policy or for violation of a law (punishment, indeed, which shows gender based discrimination) could constitute persecution.
The imposition of corporal punishment by judicial and administrative authorities is contrary to the prohibition of torture and other cruel, inhuman or degrading treatment or punishment. The Applicant's disproportionately harsh punishment by whipping or even stoning is considered to be torture and constitutes a serious form of persecution since the right to not be subjected to torture or inhuman or degrading treatment is a protected right which is not subject to any exceptions. The prohibition of torture (Article 3 of the ECHR and Article 3 of the Convention against Torture) is absolute, and a grave violation of absolute rights is, undeniably, persecution.
The importance of preserving family unity is emphasised, taking into consideration the Final Act of the Conference which adopted the 1951 Convention relating to the Status of Refugees and the Preamble to Directive 2004/83/EC.
Facts:
The Applicant, who stated that she was Iranian, entered Greece via the island of Lesvos on 15.3.2008 without legal documentation, accompanied by her minor child (the second Applicant). On 18.04.2008 she submitted an application for political asylum at the Political Asylum Department of the Attica Aliens Directorate, and when that application was examined she claimed that she was in fear for her life when she left her country of origin. More specifically, she claimed that her husband was a member of the “Sepah-e Pasdaran-e Enghelab-e Eslami” [Islamic Revolutionary Guard Corps], that he also had other wives, and that he was systematically violent towards her. During her husband's long-term absence the Applicant managed to get a divorce because he had deserted the marital home. Upon his return, the husband would not recognise the divorce and he forced her to go through with a new, temporary, informal marriage. The violence against her intensified during that period. While her husband was on a two-year mission overseas, she fled the marital home and had, according to her husband, an affair with another man. When the husband managed to locate her again, he forced her to return to his house and kept her confined there while he arranged to have her stoned. The Applicant and her minor child managed to abscond and flee the country which, in the absence of the child's father's consent, constituted abduction according to Iranian national law. The Applicant also submitted an application for asylum on behalf of her minor child (the second Applicant).
Pursuant to the Attica Aliens Directorate's recommendation to reject the application, dated 13.5.2008, the General Secretary for Public Order of the Ministry of the Interior issued the decision of 14.5.2008 by which “the application to be given international protection and for recognition of refugee status was rejected on the grounds that neither the subjective nor the objective elements of a well-founded fear of persecution, which is required in order to give such recognition under Article 1A of the 1951 Convention, had been satisfied.” In particular, the contested decision held that the alleged grounds were unfounded because there was no evidence to show they were true, and there was no evidence to show that she was, or would be, subjected to individual persecution by the authorities in her country because of her race, religion, nationality, social class or political opinion. Furthermore, according to the contested decision, it was clear that she left her country in order to seek employment and improve her standard of living. Finally, she had not shown
and submitted a national passport or other travel documentation with which to prove her identity.
The above decision was served on 24.5.2008 and the Applicants filed an appeal against it, out of time, on 22.1.2009. The appeal, which was dealt with on 23.1.2009, sought re-examination of their application to be granted political asylum and recognition of their refugee status, because they had a well-foundfear or persecution in their country of origin, citing the above-mentioned claims.
Decision & reasoning:
The Committee unanimously upheld the appeal because it decided that the out-of-time submission was not the fault of the Applicant or her child. Specifically, following the initial proceedings the Applicant was summoned by the Asylum Department of the Attica Aliens Department to collect a renewed asylum-applicant card (which bore the issue date 18.4.2008 and expiry date 18.10.2008). Because this happened on the same day that she was served with the 14.5.2008 negative decision, she mistakenly believed that she did not need to take any further action because she knew that the administration's standard practice in the case of a negative decision was simultaneously to withdraw the foreigner's special permit. When discussing the admissibility of the appeal, the Committee also took into consideration the Applicant's claims of force majeure, which justified her exceeding the legal time limit for filing an appeal against the negative decision.
The Committee also concluded unanimously that there was a well-founded fear of persecution.
Specifically, it held that – given the events which had taken place and had been accepted as true – it had been shown that there was a well-founded fear of persecution.
Concerning the justification for the fear, the Committee held that the domestic violence endured by the Applicant in the form of psychological stress and physical violence at the hands of her husband, in conjunction with the absence of State protection, constituted a type of gender-based persecution because those actions are detrimental to human dignity and physical integrity.
Regarding what Iranian law deemed to be the abduction of a minor, the Committee held that, should she return to her country of origin, the Applicant would run a real and foreseeable risk of being arrested following her husband's accusation and, subsequently, to be given disproportionately harsh punishment (life imprisonment or even the death penalty) in accordance with traditional Sharia law, which was reasonably likely to be applied in this case. It was noted that the implementation of laws (which may be derived from traditional or cultural norms and practices such as Sharia) which conflict with international human rights standards, and also the disproportionately harsh punishment imposed for non-compliance with a policy or for violation of a law (punishment, indeed, which shows gender-based discrimination) could constitute persecution.
Furthermore, the Committee held that, should she return to her country, it was reasonably likely that the Applicant would be accused of adultery and that she would be at serious risk, especially given the previous persecution by her husband in the form of domestic violence. In that case there would be a reasonable and serious risk that she would be subjected to flogging or stoning, which are the penalties for the offence of adultery during marriage. The imposition of corporal punishment by judicial and administrative authorities is contrary to the prohibition of torture and other cruel, inhuman or degrading treatment or punishment. The Applicant's disproportionately harsh punishment by whipping or even stoning is considered to be torture and constitutes a serious form of persecution since the right to not be subjected to torture or inhuman or degrading treatment is a protected right which is not subject to any exceptions. The prohibition of torture (Article 3 of the ECHR and Article 3 of the Convention against Torture) is absolute, and a grave violation of absolute rights is, undeniably, persecution.
According to the Committee, the Applicant was being persecuted as a member of a social group with inherent and unalterable attributes (a woman) since her “inappropriate” behaviour violated the law which was based on the traditional or cultural conventions and practices of Islam, and that situation is one which cannot be changed because of its long history. Specifically, her non-conformist behaviour meant that she was exposed to the State's strict laws and practices which imposed disproportionately harsh punishment on women accused of having sexual relations outside marriage.
The Committee discussed the possibility of internal relocation and held that this was not possible given that the agent of persecution was the State.
Finally, it held that both the Applicant and her minor child met the conditions for the recognition of refugee status, taking into consideration the importance of preserving family unity.
Outcome:
The Committee unanimously upheld the appeal.
It ruled that the Applicant and her minor child fulfilled the requirements for recognition of refugee status in accordance with Article 1A(2) of the United Nations Convention on Refugees of 28 July 1951, and it recognised their refugee status.
Observations/comments:
Committee composed of: Penelope Chantzara, representative of the Ministry of the Interior; Roumana Erasmia, representative of the UN High Commissioner for Refugees; and Aikaterini Apostolia, a lawyer selected from the relevant list compiled by the National Commission for Human Rights.
Relevant International and European Legislation:
Cited National Legislation:
Other sources:
UNHCR. Guidelines on International Protection No. 4: “Internal Flight or Relocation Alternative” Within the Context of Article 1A(2) of the 1951 Convention and/or 1967 Protocol Relating to the Status of Refugees. HCR GIP 03 04. 23 July 2003.
UN High Commissioner for Refugees. Guidelines on International Protection No. 2: “Membership of a Particular Social Group" Within the Context of Article 1A(2) of the 1951 Convention and or its 1967 Protocol Relating to the Status of Refugees. 7 May 2002.
UN Human Rights Council, Interim report of the Secretary-General on the situation of human rights in Iran, 14 March 2011.
Guidelines for the protection of women and girls during their initial reception in Greece and the Asylum Process. June 2011.
Gender-Related Persecution Within the Context of Article 1A(2) of the 1951 Convention and/or its 1967 Protocol Relating to the Status of Refugees. May 2002.
International Federation for Human Rights. Iran: Political opponents face execution. 12 January 2010.
Immigration and Refugee Board of Canada, Iran: Legal opportunity for a divorced man to complain of adultery by his ex- wife for acts alleged to have occurred during the marriage, reports of adulteries being prosecuted under these circumstances (1999-2002)13 May 2002.
United Kingdom Home Office. Country of Origin Information Report - Iran. 28 June 2011.
Danish Immigration Service. Human Rights Situation for Minorities. Women and Converts and Entry and Exit Procedures. IDCards. Summons and Reporting etc., 30 April 2009.
Immigration and Refugee Board of Canada, Iran: Information on whether a member of a komiteh could force his ex-wife to remarry him on the custody of male children following a divorce, and on any remedies available to the woman,1 April 1997.
Asylum Aid: Refugee Women and Domestic Violence Country Studies, 2001. Immigration and Refugee Board of Canada, Iran: Spousal abuse. 18 March 2003.
Freedom House report Women s Rights In the Middle Fast and North Africa 2010 Iran. 3 March 2010.
UN Special Rapporteur on violence against women, 27 January 2006.
United States Department of State. 2010 Country Reports on Human Rights Practices - Iran, 8 April 2011.
Norwegian Country of Origin Information Centre (landinfo). 22 May 2009.