Greece - The Council of State, 4 July 2012, 2450/2012
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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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. |
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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.” |
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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:
This case concerned the conditions under which a refusal to perform military service for conscientious reasons may justify granting refugee status. The Minister for Public Order did not give reasons for deviating from the competent Committee's recommendation, nor did he find it to be ambiguous or to have any other legal defect, while he could have referred the case back to that body for reassessment. The application for annulment is granted.
Facts:
The applicant, a citizen of Pakistan, entered Greece on 16/07/2000 and was arrested. On 23/07/2000, while he was in custody, he applied for asylum stating that he is an ethnic Kashmiri, that he left his country so that he would not be enlisted, and that he had not been persecuted but that he had lost many relatives in the war. Subsequent to this, the applicant was released. His application was rejected by order of the General Secretary of the Ministry of Public Order on the grounds that the applicant was unable to substantiate his claims for refugee status for reasons which come under Article 1A of the Geneva Convention and, specifically, that there was no evidence that he faces a risk of individual persecution in his country for reasons of race, religion, nationality, membership of a particular social group or political opinion; and that it was clear that he had left his country for economic reasons and that he was using the asylum application to make it easier to remain in Greece in order to find employment and to improve his standard of living. The applicant lodged an appeal against that decision on 23/07/2002, whereby he requested that his application be re-examined, citing a “well-founded and justified fear of persecution” in his country of origin. Before the Committee formed pursuant to Article 3 paragraph 5 of Presidential Decree 61/1999, the applicant stated that he used to serve in the Pakistani Army as an accountant, but that he left his position when he was ordered to serve in a combat role in a unit operating in Kashmir, because he did not want to fight. The applicant also stated and pleaded that his parents, residents of Pakistan, were continually harassed by the Authorities because of his absconding. At the same time the applicant filed translated documents relating to his service in the Pakistani Army. The contested decision, which was issued after the Committee's majority ruling in favour, rejected the applicant's appeal.
Decision & reasoning:
The Court held that the refusal to perform military service does not necessarily constitute a reason to qualify for refugee status as defined by the Geneva Convention. It is, nevertheless, possible to consider that this refusal justifies granting refugee status because it is punished by punishments which are disproportionate to those prescribed for refusal to perform military service on other grounds, or if the performance of military service would include participating in crimes against humanity or in acts which are contrary to the aims and principles of the United Nations. The Court held that in this case the advisory Committee formed pursuant to Article 3 paragraph 5 of Presidential Decree 61/1999 had given a majority decision in favour of recognising the applicant as a refugee on the grounds that, if he were to return to his country, “The punishment which would be imposed on him for the action for which he is being prosecuted (desertion) would be disproportionately severe in relation to his actions.” In his ruling 9135/37247 of 20-09-2005, the Minister of Public Order dismissed the appeal by the applicant on the grounds that merely being opposed to the regime in his country is not sufficient basis for his application; that there was no evidence to show that he had suffered or was at risk of suffering individual persecution by the Authorities in his country for reasons of race, religion, nationality, social group or political opinion; and that it was clear that he had left his country for economic reasons and that he was using the asylum application to make it easier to remain in Greece in order to find employment and to improve his standard of living. In conclusion, the Court held that - because of its content - the reasoning of the contested Ministerial decision is not legitimate and sufficient and, consequently, that it should be annulled as these grounds were justifiably relied on. The Court justified its decision by pointing out that the Minister of Public Order had dismissed the appeal mainly by simply repeating the reasoning in the decision by the General Secretary of the Ministry of Public Order without specifically justifying – as required by the general principle of law, as defined by Article 20 paragraph 2 of the Administrative Procedure Code – his deviation from the plain opinion of the Committee formed pursuant to Article 3 paragraph 5 of Presidential Decree 61/1999, nor citing the ambiguity or other legal defect thereof. He could, however, refer the case back to the said Committee for reassessment, should he deem it necessary.
Outcome:
Δέχεται την αίτηση. Ακυρώνει την απόφαση του Υπουργού Δημόσιας Τάξης. Διατάσσει την απόδοση παραβόλου. Επιβάλλει στο Δημόσιο τη Δικαστική Δαπάνη του αιτούντος.
The application is granted. The decision of the Minister of Public Order is annulled. Ordering the repayment of the fee. The State shall bear the applicant's Court Costs.
Observations/comments:
President: M. Vrontakis (Vice-president, President of Chamber D); Ir. Tsakopoulos, Ant. Stathakis (Councillors); I. Mazos, M. Athanasopoulou (Associate Councillors).