Case summaries

An applicant of Palestinian origin was granted refugee status.  UNWRA assistance ceased for reasons beyond the applicant’s control, and therefore the applicant is entitled ipso facto to the benefits provided by the Convention. Consequently, refugee status must be granted automatically. 

Applicant of Palestinian origin received refugee status. Assistance from the United Nations Relief and Works Agency for Palestinian Refugees in the Near East (UNRWA) ceased for reasons beyond the applicant’s control, and therefore the applicant is entitled ipso facto to the benefits provided by the Convention.

The Applicant left his country of origin (Iran) in 2003 having been arrested, illegally detained and tortured because of his participation in demonstrations against the regime in 1999. He told the Committee that he had occasionally participated in the anti-regime activities of Iranians in Greece, and that he did not wish to return to Iran because he feared that he would be imprisoned again and would be subjected to torture. Concerning his religious beliefs, he stated that he was an atheist. The Committee accepted that the torture suffered by the Applicant in his country of origin constituted previous persecution. However, the Committee believed that there was no a well-founded fear of persecution now or in the future because of his prior actions, nor because of his prior actions in conjunction with circumstances which occurred in Greece (participation in Iranian movements), nor even because of the Applicant's atheism and, therefore, that the fear of persecution was not well-founded. Nevertheless, the Committee acknowledged that “there may have been situations in which the Applicant was persecuted in the country of origin, but he has no present or future fear of persecution there. However, it is appropriate to recognise him as a refugee because of the compelling reasons arising from previous persecution, especially when the persecution he suffered was particularly atrocious”; and it unanimously recognised the Applicant's refugee status because it held that the Applicant had suffered terrible persecution in the past because of his anti-regime activities (political opinion) without the situation in his country of origin having since improved, and because the Applicant continued to suffer the consequences of his psychological harm, meaning that his return to Iran and his life there would be intolerable.

This case involved recognition of refugee status under Article 1A(2) of the 1951 Convention on grounds of religious beliefs.

More specifically, it was held that the arrest and torture the Applicant suffered at the hands of his father and the State authorities because of his Christian faith, the risk of being executed for apostasy because he was baptised in Greece, and the risk of being arrested and maltreated again should he return to Iran, constituted persecution under Article 1A(2) of the 1951 Convention, the actor of persecution being the State. Furthermore, being forced to conceal one's religious beliefs and/or proclaim belief in another religionin order to avoid persecution and/or deprivation of basic rights constitutes a breach of religious freedom under Article 9 of the ECHR and also the related case law of the ECtHR.

Appeal against the General Secretary of the Ministry of Public Order's negative decision no 95/52986 of 28.4.2006 on a claim for asylum before the Appeal Committees formed pursuant to Articles 26 & 32 of Presidential Decree 114/2010 and the Minister of Citizen Protection's decision 5401/3-505533 of 7.11.2011 (385/8-11-2011 FEK YODD) pursuant to which the present Committee was formed.

This case involved a fear of persecution because of religious beliefs (atheism) as well as because of membership of a particular social group (personality shaped in a non-Islamic society / westernisation). In particular, the Committee ruled that if the Applicant were to return to Afghanistan now or in the near future, because of his atheism and the consequent non-conformity with the Islamic way of life of the society into which he would need to integrate, in conjunction with the fact that his personality has been shaped in a non-Islamic society with customs and a way of life totally different from those of Muslims, he would be reasonably likely to suffer aggressive social attitudes, threats and social exclusion which, taken cumulatively, could amount to persecution. Besides, should he return to a small rural community in Afghanistan – given the Applicant's particular personality and how it had been shaped – it is very likely that he would not be able to conceal his religious beliefs (atheism) and thus there was a reasonable chance that he would be at risk of criminal prosecution because of his atheism and his 'apostasy' from Islam (prosecution which is reasonably likely to lead to imprisonment or execution). This, however, would constitute a direct and severe violation of his fundamental right to religious freedom, especially in the context of the specific social, religious and political unrest and the absence of legal guarantees in the Applicant's country of origin.

It was held that even if he were not criminally prosecuted, the Applicant would, in any case, be at risk of suffering harm from non-state actors in the form of persecution; and that the Afghan State, police and other authorities were incapable of providing adequate and effective protection, mainly because of the lack of organisation and the corruption which prevails at all levels.

The Palestinian applicant’s claim was rejected by the authorities as he was not found to be credible. However, the court held that the security situation in the West Bank needed to be reexamined on the basis of the latest country of origin information to assess if the applicant would face a risk of torture or inhuman treatment upon return.

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.

For the purposes of the first sentence of Article 12(1)(a) of Directive 2004/83, a person receives protection or assistance from an agency of the United Nations other than UNHCR when that person has actually availed himself of that protection or assistance.

Article 1D of the Geneva Convention relating to the Status of Refugees, to which Article 12(1)(a) of the Directive refers, merely excludes from the scope of that Convention those persons who are at present receiving protection or assistance from an organ or agency of the United Nations other than UNHCR. It follows from the clear wording of Article 1D of the Geneva Convention that only those persons who have actually availed themselves of the assistance provided by UNRWA come within the clause excluding refugee status set out therein, which must, as such, be construed narrowly and cannot therefore also cover persons who are or have been eligible to receive protection or assistance from that agency.

The CALL ruled that when a Palestinian refugee, who is under the care of United Nations Relief and Works Agency (UNWRA), resides outside the mandate areas of UNWRA, then this person no longer benefits from the protection of UNWRA and therefore falls under Art 1D(2) of the 1951 Refugee Convention, meaning that this person has an automatic right to the protection of the Convention. It should however be examined whether the person can return to the mandate areas and place him/herself back under the protection of UNWRA.

One cannot demand recognition of refugee status pursuant to Article 1A(2) of the Geneva Convention where protection can be provided pursuant to Article 1D of the Convention. The phrase used in the first sentence of Article 1D of the Convention – “persons who are at present receiving… protection or assistance” – relates to those Palestinians who could avail themselves of protection on the date of the Convention, i.e., on 28 July 1951., and to their direct descendants born after that date, provided they remain under the mandate of UNRWA (United Nations Relief and Works Agency). “Protection or assistance” for Palestinians is provided solely in areas under the UNRWA mandate. Therefore, exclusions from protection under the Geneva Convention relate only to those Palestinians who reside permanently in those areas.