Symvoulio tis Epikrateias (Συμβούλιο της Επικρατείας)
National case details
Registration ID: Decision n. 441/2017
Instance: Cassation (review)
Case status: Final
Area of law
Safeguards for access to justice
Relevant principles applied
Decision n. 38839 of the Regional Asylum Office of Lesvos
Decision n. 4159 of the 3d Independent Appeals Committee
Decision n. 8416 of the 3d Independent Appeals Committee
Decision n. 441 of the Council of State (Plenary Section)
Identification of the case
- Prohibition of torture and inhuman or degrading treatment or punishment (art. 4 CFREU)
- Articles 54 and 56 of the Greek Law 4375/2016
- Articles 38 and 39 of the Directive 32/2013/EU
Summary of the case
The applicant, a Syrian national, seeks the annulment of the 4159 / 08.09.2016 decision of 3d Independent Appeals Committee of the Ministry of Interior and Administrative Reconstruction, rejecting an administrative appeal of the applicant against the 38839 / 17.08.2016 decision of the Regional Asylum Office of Lesvos. With the latter his request to be recognized as a refugee or receive subsidiary protection was rejected.
The applicant was born on 27.07.1990, on 26.09.2016 submitted a request, at the presence of an interpreter (EASO 1201), in which he sought to be recognized as a refugee and to be proveded asylum in Greece. In particular, he stated that he is of Syrian origin, speaks Arabic, wants to conduct the interview in place in Arabic, is holder of an identity, a Sunni Muslim, single, farmer by profession, has received education (9-12 years) and does not deal with health problems. He left the country of origin on 15.04.2016 and came to Greece 4-7 months ago through Turkey. Furthermore, he confirmed by signature that he read the content of the recording form, agrees with the content and that he has been informed of the requirements for the next stages of the process (see. the 26.09.2016 registration form on international protection). Subsequently, during the administrative procedure of his request on 14/10/2016, an extensive interview in Arabic language was conducted with the applicant with the presence of an operator, qualified personnel of European Asylum Support Office (EASO), an interpreter (EASO / 1209), which the applicant confirmed that he understood, and consequently the interview records were written in 14/10/2016. As mentioned in the Interview records, the applicant was informed that the interview is part of the process of his application review and in particular that based on the interview, among others, the Asylum Office will examine whether the applicant can return to Turkey in accordance with the principle of "safe third country". Furthermore he was informed that all bystanders are bound by the principle of confidentiality, the information provided will not be shared with the authorities of his country of origin but possibly with the Greek and Turkish authorities,that may at any time request to discontinue the proceedings if he felt tired or unwell. Also, he was asked if he has any questions regarding the described procedure, if he understands the interpreter and if he feels healthy to proceed with the interview for the admissibility of his application and the applicant responded positively to these questions. Then he stated that he is Sunni Muslim, unmarried, left Syria on 04.15.2016, passed through Turkey where he remained for 25 days and arrived on 11.05.2016 in Greece and thst his paternal family is in Syria. Furthermore he said that he is healthy, not suffering from any disease, he was never a torture victim, was never found in front of events that caused him mental or physical disability, once he came to Greece his daily life is good. When asked if there was another problem except the language, the applicant replied that "no the only problem was the language." Asked if he can return to Turkey the applicant replied "no because there is no life and future in Turkey," when asked if there is something to be afraid personally he replied "no". Subsequently, the applicant confirmed by signature the accuracy of the records of the interview and said that he has nothing more to add. The above application was rejected by Regional Asylum Office of Samos, as inadmissible, pursuant to Articles 54, 55 and 56 of Law. 4375/2016, on the grounds that Turkey can be described as "first country of asylum" or "safe third country" for the applicant.
The case was inserted into the seven-member composition of the Chamber, after the 16.09.2016 Act of the Chairman of the Chamber due to high importance.
Given the importance of these issues, the Chamber considers that the case should be referred to the Grand Chamber (Plenary of the Court).
- Administrative judicial enforcement
The 3d Independent Appeal Committee, after taking into account the above comprehensive memorandum of the applicant, rejected the action as unfounded and held that the application for international protection is inadmissible pursuant to Articles 54 and 56 of Law 4375/2016. In particular, the IAC, ruled that Turkey, by which the applicant entered Greece, is a safe third country for him, under the specific circumstances, because, although the country has ratified the Geneva Convention with geographical limitation, ie refugee status in accordance with this Convention may only be recognized for persons seeking international protection for events that have occurred in Europe, however, may be obtained without undue protection equivalent to that provided by the Geneva Convention, the applicant has a link to that country since he entered Greece via Turkey, where he remained for 1.5 months and are already there, his uncle and his family, and moreover that all the other criteria of Article 56 of the Greek law 4375/2016 are met cumulatively and also the applicant will be readmitted in Turkey , because Turkey has committed itself to do so in its joint statement of the 18.03.2016 European Union and Turkey. Furthermore, it is concluded that, in order to determine whether the third country is safe, the national authorities should carry out an audit conducted in two stages. In the first instance, they should investigate whether, in view of the general social, legal and political circumstances of the third country, the conditions of Art. 38 of the Directive 32/2013/EU are fulfilled and consequently the third country can be considered safe in general, having for that purpose a general burden of proof. But any impairment, on the part of the third country, of the fundamental rights of the applicant, cannot lead, automatically, to the characterization of the third country as unsafe. Because, if it were accepted that the slightest infringement by the third country of obligations that may arise from international and European conventions, relating to the respect of the principle of non-refoulement and non-removal, in violation of the right of prevention of torture and cruel, inhuman or degrading treatment, is sufficient to impede any transfer of an asylum seeker to this country, it would be contrary to the purposes and the system of the Dir. 2013/32 / EU, so far as it concerns the application of the concept of "safe country". If, however, any infringement of the third country had the consequence of obstructing the MS where the application for asylum was submitted, to proceed to the transfer of the applicant to this third country, in the light of Art. 38 of the Dir. 32/2013/EU, this would result in adding to the criteria of the safe third country listed in Art. 38 of the Directive, an additional exclusion criterion, based on which, minor fundamental rights violations, within a certain third country, preclude the application of the whole idea of the safe third country and prevent the states in which initially received the application to reject it as inadmissible under Art. 33. Such a consequence would render Art. 38 meaningless and would jeopardize the achievement of the objective of the Union legislature, as is reflected in Rec. 44, according to which Member States should not be obliged to assess, on the merits, applications for international protection submitted at the border or in transit zones, if the applicant, considering his sufficient connection to a third country, may reasonably be expected to seek protection in this and there are grounds for believing that the applicant will be admitted or re-admitted to that country, which is safe to him. In contrast, in cases where there is a serious risk of systemic irregularities regarding the asylum procedure and the reception conditions for asylum seekers in a third country, that would impose a serious and proven reason, convincing that the asylum seeker transferred to the territory of that State, will be at substantial risk of being subjected to inhuman or degrading treatment within the meaning of Art. 4 of the Charter, such transfer would be contrary to that provision. Furthermore, should the national authorities have established that the third country is not safe in general, then there is no need to examine the second stage. But since it has been established, at a general level, the safety of the country and under the obvious condition that the applicant claims that the third country is not safe to him, even without providing formal evidence, on the grounds that specific facts are causing, in an objective way, justified fear of persecution for one of the purposes of the Geneva Convention, having for this purpose a special burden of proof, the national authorities proceed to the second stage of verification. At this stage, national authorities have to determine the reliability of the pleas and evaluate, on an individual basis, taking into consideration the personal circumstances of the applicant, including factors such as background, gender and age, if the applicant shows that there are valid reasons why this country should not be considered safe in the specific case. And in case they consider that there are valid reasons for the country not to be safe under the specific circumstances, the characterization of the country as safe can no longer be valid, so far as he is concerned. Because it cannot be assumed that a third country is a safe country without an individual assessment of the critical incidents, on the other hand, the absence of violations of international law does not mean that the applicant is not individually in danger.” In the light of the above mentioned, the IAC noted that “From what has been stated in the preceding paragraphs, and bearing in mind that a) the legal regime in Turkey expressly provides that returnees Syrians protected from refoulement, a fundamental concept of international protection, automatically enjoy the protection of "temporary protection" status, have legal right of residence while enjoying free access to basic health and education services and can freely work under arrangements similar to Turkish citizens, without suffering any discrimination against them, b) a comparative overview of the available information sources shows that Turkey does not apply a systematic policy of deportations, c) the European Commission in its May 2016 report attests that in some cases, delays occur on cases of persons entering Turkey and seeking protection, coming from Iraq and Syria, but in such cases, ultimately, taking into consideration the safety and health status of these people, permission was given to them to cross the border and considering a) the content of the 12.04.2016 and 29.05.2016 Letters of Turkey, in which enacted laws are mentioned and also the Turkish government's intention to fully implement what they have agreed to, b) that those letters were given from the Ambassador of the Permanent Mission of Turkey to the EU (see. Court HR, judgment of 12.4.2005, no. recently. 36378/02, Shamayev and others v Georgia and Russia, of 4.7.2006, no. recently. 6575/06, Kordian v Turkey, 9.5.2006, no. recently. 26844/04, Abu Salem in Portugal, 24.2.2009, no. recently. 246/07, Ben Khemais v. Italy, 10.6.2010, no. recently. 53 688 / 08, Garayev v Azerbaijan, 18.2.2010, no. recently. 54131/08, Baysakov and others v Ukraine of 23.10.2008, no. recently. 2440/07, Soldatenko v Ukraine), whos is expressing the political will of Turkey's government (see. Court HR, judgment of 15.11.1996, no. recently. 22414/93, Chahal v United Kingdom), which is party to the European Convention on Human Rights (see. ECtHR judgment of 14.9.2010, no. Recently. 21022/08 and 51946/08, Chentiev and Ibragimov v Slovakia, 17.2.2009, no. Recently. 48514/06, Gasayev v Spain), have specific content (see. ECtHR judgment of 28.2.2008, no. recently. 37201/2006, Saadi v Italy of 1.4.2010, no. recently. 24268/08, Klein in Russia, 20.5.2010, no. recently. 21055/09, Khaydarov v Russia) which is confirmed, in the current period, from reliable sources such as the European Commission (see. from the 05.05.2016 and 29.07.2016 related letters) and the United Nations High Commissioner for Refugees (see. the from 04.27.2016 and 09.06.2016 related letters) and other available sources for Turkey (see. Court HR, judgment of 11.1.2007, no. recently. 1948/04, Salah Sheekh v Netherlands ) and since access is provided for the UN High Commissioner for Refugees to monitor the practices of the country in relation to international protection procedures (see. Court HR, judgment of 29.5.2008, no. recently. 34561/03, Ibragimov and others v Russia, 17.6.2010, no. recently. 26876/08, Kolesnik v Russia), c) that the abovementioned diplomatic assurances of Turkey fulfill the conditions and are being presented as reliable, having special probative value (see. Court HR, Case 28.2 .2008, no. recently. 37201/2006, Saadi v Italy par. 147 and 148), d) that in the report of the Council of Europe report from August 2016 (see par. 14) is expressly stated that access is allowed to lawyers, NGOs, European and international organizations to places of accommodation or detention of refugees and applicants for international protection, which confirms the cooperation of the Turkish authorities to the bodies mentioned above (eg Amnesty international), while, even if deficiencies do exist at different levels of the asylum system in general, given the large number of refugees and immigrants that live in this country, however, specific acts or omissions that constitute violations of protected rights, likely to lead to the conclusion that persons who returned to the country are exposed in risk of torture or inhuman or degrading treatment, are not being imputed to Turkey. Moreover, claims that are put forward by various sources (such as Amnesty International or Human Rights Watch organization) are based solely on family testimonies and require, in order to verify their validity, additional evidence and extensive monitoring of the situation formed at the border of Turkey. Therefore, the legislative framework of protection in Turkey, interpreted in the light of the Geneva Convention and the international humanitarian law, meets, at the present stage of examination, the conditions in order to determine that, in principle, provides protection equivalent to the protection provided in the Geneva Convention.”
The Council of State ruled that the third country is not required to have ratified the Geneva Convention (and without geographical limitation), but it suffices if in that country the refugee protection is equivalent to the protection accorded by the Geneva Convention. This is particularly apparent from a comparison of Article 38 of Directive 2013/32 / EU (which transposed Article 56 of l. 4375/2016), which does not provide that in order for a third country to be considered as safe the latter must have ratified the Geneva Convention, the provisions of Article 39 of the Directive (which has not been transposed into national law), on the "concept of European safe third country", par. 2 of which explicitly states that a European country may be considered a safe third country for the purposes of paragraph 1 only if, inter alia, has ratified and observes the provisions of the Geneva Convention without any geographical limitations. Moreover, with para.1 subpara. F of article 56 of Law 4375/2016, the legislature set as a criterion for considering a country as a safe third country that the applicant has to link with the third country, under which it would be reasonable for the applicant to go to this country. In the opinion prevailed in the Chamber, within the meaning of that provision, passage of the applicant from a third country may, in conjunction with the specific circumstances of the applicant (such as, inter alia, the residence time in this or the fact that the a third country is located near the country of origin) be considered as a link with the third country, under which it would be objectively reasonable for him to travel to that country. According to a concurring opinion expressed in the Chamber, in order to establish the meaning of "link" as defined by article 56 par. 1 subpara. F of the Law 4375/2016 requires the assistance of the condition of refugee transit from "welcoming territory ', ie soil country in which the prevailing general moral, social and cultural beliefs and traditions in harmony or at least does not contradict significantly to the cultural and social consciousness that has created a refugee and therefore could reasonably feel that between this and the prevailing perceptions in the country of transit is the cohesive bond.
Role of the Charter and role of the general principles on enforcement
As far as the article 36 of the Directive 32/2013/EU is concerned, the IAC noted that the legislator explicitly raised as a precondition not only the ratification of the international and European conventions on human rights, but also their application in practice and the existence of effective remedies, given that in the country of origin the applicant is escaping because of a fear of persecution or because of a real risk of serious damage. Nevertheless, the legislature does not rely the classification of the country as safe or not, on the mere fact of the ratification of the Geneva Convention without any geographical reservation. In the case of the concept of the "safe third country" (Art. 38), the IAC considered that, given that the consequence of the country being characterized as safe, is the return of the applicant in that country, the legislature aimed at the existence of a general grid of protective circumstances which indicate that in this country, as in the cases of Art. 39 and 36 of the Dir., the applicant will not experience fear of persecution for one of those reasons mentioned in the GC. The IAC, however, moved forward and stated that “ determining the extent to which protection is provided against persecution or mistreatment, is deduced from conditions that are significantly different compared to the ones prescribed in Art. 39 and 36 of the Dir. This is because, among the conditions to be fulfilled, in principle, so that the third country will be considered safe, the ratification and the application of the GC without any geographical limitations, the validation and the compliance with the ECHR, including those relating to effective remedies, or other international human rights conventions, are not included. The legislator, however, considered it appropriate to set as an additional condition the investigation that the state respects in practice the principles of non-refoulement under the GC and prohibition of expulsion, in breach of the right of prevention of torture and cruel, inhuman or degrading treatment, as defined in the international law. In light of the above, it is clearly concluded that the ratification of the GC by a third country with a geographical limitation does not result, without any further act, in the a priori exclusion of this country as a potential safe third country. In contrast, in cases where there is a serious risk of systemic irregularities regarding the asylum procedure and the reception conditions for asylum seekers in a third country, that would impose a serious and proven reason, convincing that the asylum seeker transferred to the territory of that State, will be at substantial risk of being subjected to inhuman or degrading treatment within the meaning of Art. 4 of the Charter, such transfer would be contrary to that provision.
- Right of every person to be heard, before any individual measure which would affect him or her adversely is taken
The IAC addressed the issue of the “meaning of the link”. According to the Judgment “…Directive 2013/32 / EC was transposed into national law by Law no. 4375/2016 (G.G. A '51 / 3.4.2016), as amended by Law no. 4399/2016 (G.G. A' 117 / 22.6.2016), Article 54 of which (Article 33 of the Directive) provides that : “The Decisive Authorities may consider an application for international protection as inadmissible if: a) … b) … c) … the applicant enjoys sufficient protection from a country considered as a first country of asylum for him in accordance with Article 55, or d. consider that a country constitutes a safe third country for the applicant, pursuant to Article 56” and Article 56 that : “A country is considered as a safe third country for a particular applicant when cumulatively the following criteria are met : a. His life or freedom are not under threat on account of race, religion, nationality, membership of a particular social group, or political opinion; b. The country respects the principle of non-refoulement under the Geneva Convention, c. there is no risk of serious harm to the applicant under Article 15 of Presidential Decree 141/2013, d. The country prohibits removing someone to a country where there is risk for the applicant of torture or cruel, inhuman or degrading treatment or punishment, as defined in international law, e. There is the possibility to request refugee status and, should the applicant be recognized as a refugee, to receive protection in accordance with the Geneva Convention and f. the applicant has a link with the third country, under which it would be reasonable for him to go there. 2. Whether those criteria are met is examined for each case and for each applicant individually. ... 3. When the aforementioned third country does not permit the applicant to enter its territory, the application is examined on the merits by the competent authorities to decide. ". The IAC concluded that the claim has to be rejected as unfounded. This is because “the applicant passed through Turkey to Greece, where he stayed for over 25 days. The above facts in view of the formal agreement between the EU and Turkey regarding the obligation of the latter to provide adequate protection to returnees Syrian citizens and the capacity to provide to them the possibility to be registered enjoying as a result the temporary protection regime which is equivalent in effect to that of the GC’s refugee protection and also to provide them access to health services, employment, education, suggest a link with Turkey. Moreover, the creation of strong biotic relations and of a real situation worthy of protection is not needed in order to establish the fulfillment of the criterion f (link) , while the fact that the applicant chose not to seek work or to organize otherwise his life because he had originally intended to arrive in Greece for reasons not related to fear of persecution in Turkey, but for economic reasons and in the absence of knowledge of the Turkish language, is reduced to his free will and cannot be evaluated in order to rule out a connection with this country. Taking into account the large number of his compatriots who live in Turkey, with whom the applicant shares common customs and traditions, shares common historic, linguistic and religious elements, the IAC ruled that between the applicant and Turkey there is a sufficient link following which it is reasonable for him to return to that country.”
The IAC concluded that the legislator in Articles 36 and 38 of the Directive 32/2013/EU intended to ensure that the applicant will have access to an asylum system which, regardless of its individual characteristics, will eventually provide the applicant a protection equivalent and consistent with that of the Geneva Convention, since the third country, if that would be characterized as safe, will ultimately investigate the substance of the application for international protection. For this reason, the legislature used the term 'in accordance with the Geneva Convention’, in order to emphatically declare that the applicant will be protected in the light of the GC, which is the cornerstone of international protection and on the principles and values arising from it, but without requiring that the protection offered would be in substance identical to that of the Convention.