Greece - Supreme Court, 19 September 2008, Application No. 2025/2008
Keywords:
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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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Right to remain pending a decision (Suspensive effect)
Description
According to Asylum Procedures Directive, Article 7 "Applicants shall be allowed to remain in the Member State, for the sole purpose of the procedure, until the determining authority has made a decision in accordance with the procedures at first instance set out in Chapter III. This right to remain shall not constitute an entitlement to a residence permit. Member States can make an exception only where, in accordance with Articles 32 and 34, a subsequent application will not be further examined or where they will surrender or extradite, as appropriate, a person either to another Member State pursuant to obligations in accordance with a European arrest warrant or otherwise, or to a third country, or to international criminal courts or tribunals." Art 39 APD requires applicants for asylum to have the right to an effective remedy before a court or tribunal, against a number of listed decisions. Member States must, where appropriate, provide for rules in accordance with their international obligations dealing with the question of whether the remedy shall have the effect of allowing applicants to remain in the Member State concerned pending its outcome. |
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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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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. |
Headnote:
Extradition to Iran of an Iranian citizen. The wanted person was a political refugee who had been recognised by the UN High Commission for Refugees. The Supreme Court (Areios Pagos) rejected the extradition request because of his status and because of the appeal he lodged under the provisions of Article 5 (2) of Presidential Decree 8/2008.
Facts:
The 'note verbale' no. 547/555 dated 30.5.2008 from the Iranian Embassy in Greece and the request numbered B288/1/84 and dated 26.5.2008 from the 1st office of the Public Prosecutor of the city of Ahvaz in Iran sought the arrest and extradition to Iran of a citizen, X, who was born on 3.4.1978 in the city of Ahvaz in Iran and who was already in custody in Komotini Judicial Prison pursuant to an order of the Appeal Prosecutor of Thrace dated 22.5.2008 and numbered 1/2008 File 6/2008. The extradition request was brought for discussion before the Appeal Council of Thrace, which had material and local jurisdiction, in accordance with the provisions of Articles 443(2) and 448 of the Criminal Procedure Code, supported by the provisions of Articles 436 et seq of the same Code. The Appeal Council of Thrace, examining the application, ruled in its contested 8/2008 decision (in Council) in favour of extraditing the wanted person to the authorities in the Islamic Republic of Iran so that he could be tried on criminal charges of committing the offences of large-scale fraud, forgery and the use of forged documents which was said to have occurred between May 2005 and 14 July 2005 in Iran. These offences are provided for and punished under Article 1 of the Law regarding harsher penalties for the perpetrators of corruption, abuse and fraud and under Articles 258 and 356 of the Islamic Penal Code by up to 13 years in prison. The Council set a condition that the extraditee must not be sentenced by Iran, or expelled, or surrendered to another state, for any crimes other than the ones stated above and which were carried out before his extradition.
Decision & reasoning:
Areios Pagos (the Supreme Court) began by highlighting the fact that, under Article 436 of the Criminal Procedure Code, the conditions and processes for extraditing foreign criminals are governed – if there is no treaty – by the provisions of the subsequent articles. Those provisions are implemented even when a treaty exists as long as they do not conflict with that treaty, and also in matters for which there is no provision in the treaty. The Supreme Court noted that paragraph 1 of the provisions of Article 5 of Presidential Decree 90/2008 (which establishes the procedures for recognising or revoking refugee status) stipulates that asylum applicants may remain in the country until the administrative process of examining the application has been completed, and that they may not be removed in any manner. Furthermore, the Supreme Court pointed out that paragraph 2 of the said provision stipulates that the preceding paragraph is not applicable (a) in cases where the authorities surrender or extradite the party either to another Member State (in accordance with the provisions of Law 3251/2004) or to a third country or international criminal court in accordance with the country's international commitments. An arrest or extradition must not lead to the party's refoulement if it would be contrary to Article 33(1) of the 1951 Convention. The Supreme Court repeated that nobody can be extradited before there has been a final decision about the application if a fear of persecution in the country of extradition is alleged. Given that the wanted person had been recognised as a political refugee (by the UNHCR) but that the decision (by the Greek state) about whether or not to grant his application for asylum was still pending, the Court held that it was obviously not permissible to extradite the wanted person until a final decision on the application had been issued, taking account of Article 5(2) of Presidential Decree 90/2008 (according to which the mere fact that the wanted person expressed a fear of persecution – clearly for offences connected to his political principles and political activities, developed in pursuit of liberty as leader of a dissident group in Iran – meant that he could not be removed until the process of deciding whether or not to grant asylum had been concluded). Therefore – whilst accepting that the positive conditions for his extradition had been met – the Supreme Court held that the ground for appeal in which the Appellant claimed that the Appeal Council of Thrace was wrong to rule in favour of his extradition was well-founded and must be upheld. Based on the above, the Supreme Court concluded that the wanted person's appeal should be accepted and that the decision by the Appeal Council of Thrace, which ruled in favour of extraditing him to the Islamic Republic of Iran, should be changed.
Outcome:
The Supreme Court formally and substantively accepted the Appellant/wanted person's appeal against decision 8/2008 by the Appeal Council of Thrace, as referred to in the reasonings, and set aside the said decision by the Appeal Council of Thrace. The Supreme Court ruled that the wanted person, X, born on 13 April 1978 in Ahvaz in Iran, should not be extradited to the Islamic Republic of Iran.
Observations/comments:
2nd Criminal Summer Chamber – (in council)
Court composition: Formed by the Judges: Georgios Chrysikos, Presiding Supreme Court Judge (as the senior member of the composition), Ioannis Sideris, Nikolaos Zairis (Prosecutor), Nikolaos Leontis and Georgia Lalousi (Supreme Court Judges).