Decision No. 1647/2003 of the 4th Chamber of the Council of State
|Publisher||Greece: Council of State|
|Author||Council of State (4th Chamber)|
|Citation / Document Symbol||1647/2003|
|Other Languages / Attachments||Greek|
|Cite as||Decision No. 1647/2003 of the 4th Chamber of the Council of State, 1647/2003, Greece: Council of State, 2003, available at: http://www.refworld.org/cases,GRC_CS,41207a124.html [accessed 29 April 2017]|
|Comments||This is a summary in English provided by UNHCR Athens.|
|Disclaimer||This is not a UNHCR publication. UNHCR is not responsible for, nor does it necessarily endorse, its content. Any views expressed are solely those of the author or publisher and do not necessarily reflect those of UNHCR, the United Nations or its Member States.|
Summary of Facts: The applicant, Mr. Ç.Á., a Turkish national and a medical doctor by profession entered Greece legally on 16.1.1997 through the Hellinikon International Airport from Romania with a 3-month consular visa. On 5.7.1999, he submitted a request to be recognized as a refugee on the grounds of the 1951 Geneva Convention on the Status of Refugees. The application was rejected by decision of the General Secretary of the Ministry of Public Order, dated 27.10.2000. He appealed against this decision, as per article 3 para. 3 of P.D. 61/1999. In his appeal he stated that in 1993 he founded in Istanbul the organization IBDA-C Coyotte which is a subsidiary and the political and ideological front of the Islamic religious organization IBDA-C; that he has published articles in various papers on political, ideological and religious issues; that these papers gave the «political, religious and ideological position both of the main organization and of its subsidiaries»; and finally that, due to the above mentioned activities, «he suffered persecution», which forced him to desert the Turkish army, in which he was serving his military service and leave Turkey. The Appeals' Board set up by P.D. 61/1999 unanimously considered that the applicant does not fulfill the criteria to be recognized as a refugee. The relevant minutes of the Board, dated 4.1.2001, mention referring to the applicant the following: «The applicant's file and the evidence he provided in his interview demonstrate that the allegations for desertion are due to personal reasons, other than those falling within article 1 Á of the Geneva Convention». The application was rejected by decision of the Minister of Public Order, dated 1.2.2001 on the following reasoning: «The claim that he suffered or suffers individual persecution in his country for religious reasons was in no way demonstrated. Furthermore he left his country legally. Desertion, on its own, does not substantiate an asylum application, given that it is considered a criminal offence. In the specific case, it is due to personal reasons and not to any reason falling under article 1 Á of the Geneva Convention». On the basis of the said ministerial decision, the relevant authorities were instructed to initiate the deportation procedure. A decision, dated 9.3.2001, issued by the Head of the Aliens Directorate of the Greek Police ordered the deportation of the alien from the country. The applicant appealed against this latter decision. Following this appeal, a decision of the Minister of Public Order, dated 26.4.2001, confirmed the rejection of the asylum application but modified the act under review, insofar as the initiation of the deportation procedure was concerned and gave the applicant a 3-month period «in order to leave voluntarily Greece for a country of his own choice".
Mr. Ç.Á. applied to the Council of State against the decision by which the Minister of Public Order rejected his asylum application and ordered him to leave the country within three months.
The applicant claimed, before the Court, that the act under review is not sufficiently reasoned because according to the relevant provisions of the 1951 Geneva Convention and the P.D. 61/99 – interpreted in the light of articles 2 para. 1 and 2 and article 20 para. 1 of the Constitution – for someone to be recognized as a refugee it is only necessary to establish probability. He also supplies all evidence on his activities invoked in his appeal to the Minister of Public Order and adds – in a supplementary memorandum – that he was employed in the «Kurdish News Agency» and in the Kurdish «Red Crescent», that he has always been a «friend» of the Kurdish organization ñÊÊ and that there are "dozens of pending condemnation sentences" against his wife who has been "an active PKK member". He alleges that this evidence provides sufficient probability that there is well-founded fear of persecution in Turkey due to his political opinions. In addition, he claimed, for the first time before the Court, that a ruling of the State Security Court of Turkey, allegedly issued on 16.9.1995, has sentenced him to 18 years imprisonment. The reasoning of the said ruling, provided in translation, states that the applicant had been sentenced for «being a member of the outlawed armed terrorist organization IBDA-C» and was found guilty of «attempt to overthrow, by arms, the established constitutional order».
A) The Court ruled that paragraph 5 of article 1 of P.D. 61/1999 on the procedure of recognition of an alien as a refugee does not oblige the alien lodging the application to provide formal documentary evidence in order to support his claim. This provision, however, does not free the applicant from the obligation to invoke, even without producing formal documentation, certain specific facts which may, in some way, substantiate that he is entitled to receive international protection
B) the applicant's complaints before the Council of State are unfounded for the following reasons: a) the applicant did not provide the Administration with concrete and specific claims that would allow even to assume probability that he fulfills the criteria to receive protection on the basis of the Geneva Convention. In particular the applicant does not at all explain for which reasons his affiliation to the «IBDA-C» organization and his editorial activity in various papers might substantiate a fear of persecution. He simply mentions, in a very vague way, that this editorial activity gave the «political, religious and ideological position of the organization". Even more so, he does not make specific reference to facts that might substantiate that the above-mentioned activities led to "persecution against him" as he puts it. b) Independently of the fact that the applicant had not mentioned, in his appeal, the claim about his or his wife's links with Kurdish organizations, his relevant declarations in the memorandum to the application to annul would not, in any case, substantiate even the probability of persecution since, again in this case, the applicant does not produce any specific fact to corroborate his – or his wife's – pro-Kurdish actions, nor does he explain the object or the conditions under which was issued even one of the «dozens of condemning sentences» issued, according to his claim against his wife. c) In view of the absence of specific evidence that might substantiate well founded fear of persecution on the grounds of the applicant's or his wife's political opinions, the mere fact that the applicant deserted while serving his military service and risks criminal prosecution for his act, is not sufficient to put him under the provisions for international protection of the Geneva Convention; according to article 1 Á al. 2 of the Geneva Convention, this status is not granted to those in danger of criminal prosecution or in any other way, but only on the grounds of race, religion, nationality, membership of a particular social group or political opinion.
C) In evaluating the claims of the applicant that the State Security Court has issued a condemning sentence against him, the Council of State considers that they do not influence substantially the present dispute because the applicant did not invoke the issuance of the specific condemning sentence either in his original asylum application or in his appeal against the decision to reject that application. Finally, the Court observes that the applicant has still the right to lodge an application before the General Secretary of the Ministry of Public Order requesting an ab initio examination of his asylum application, on the grounds that he can produce new evidence, crucial for the recognition of his refugee status.
The Council of State rejected the application to annul.