Decision No. 3631/2002 of the 4th Chamber of the Council of State

Summary of facts: The applicant, Mr. B.K., who is of Palestinian origin and who, according to his file, is referred either as a stateless person or as a Lebanese national, came with his wife to Greece in June 1991. In August of the same year, he lodged an asylum application, rejected by decision of the Minister of Public Order in December 1991. In 1994, while both Mr. Â. Ê. and his wife were under the UNHCR' s protection, the General Secretary of the Ministry of Public Order accepted their «tolerated stay, for humanitarian reasons, in order for them to prepare their departure». Following this, on 7.12.1994, the police authorities issued them a special residence permit, of a 6-month duration, which was renewed, twice, for two more 6-month periods. The application to renew the said residence permit, submitted by the applicant on 11.7.1996 was rejected, eventually, by decision of the General Secretary of the Ministry of Public Order.

After P.D. 358/1997 entered into force, Mr. B.K. applied for the «white card» and received a relevant certificate by O.A.E.D. on 10.2.1998. On 10.6.1998, the applicant was arrested in Athens and the Head of the Police Security and Order Branch of the Greek Police, by decision, signed by order of the Head of the Police and dated 13.6.1998, ordered his deportation from Greece and his detention «till his departure from the Greek territory is possible". According to this decision, the deportation of the applicant was ordered because this latter «remains illegally in our country, without fulfilling the legal conditions set by Law 1975/1991, creating serious problems of public order». The applicant appealed against this decision, on the basis of the quasi-judicial appeal foreseen in art. 27 para. 4 of L. 1975/1991. This appeal was rejected by decision of the Minister of Public Order in 20.7.1998. This decision was taken, following an introductory report, dated 1.7.1998. The author of this report recommended to reject the said appeal «on grounds of public order and security» alleging that, according to documents by the State Security Directorate, the applicant «is strongly active among local Islamic circles and is considered to be a militant of the well-known organization HAMAS». Finally, by act, dated 20.7.1998, of the Minister of Public Order, it was decided that the applicant should not receive the «white card» on the grounds that, after the latter had applied for the said card, his name was introduced, by an act of the State Security Directorate of the Ministry of Public Order, dated 13.2.1998, in the list of undesirable aliens for reasons of public order, security and, in general, of public interest.

Mr. Â.Ê. applied to the Council of State, requested to receive provisional judicial protection and to annul the act by which the Minister of Public Order rejected the quasi-judicial appeal foreseen in art. 27 para. 4 of L. 1975/1991 as well as any other act aiming to force him to leave Greece.

The Injunctions Committee [1], which examined the application to annul, deemed necessary that the Administration should provide further explanations on the matters referred to in the said report. For this reason, the rapporteur for the case sent a letter to the State Security Directorate of the Ministry of Public Order, dated 19.10.1998, which stated the following: «(1) The introductory report dated 1.7.1998 on the applicant's appeal against the act ordering his deportation, mentions that the applicant is strongly active among the local Islamic circles. Given that the applicant, in a memorandum submitted to the Injunctions' Committee, claims that this information is based on the fact that he performs the function of imam in a prayers' hall for his coreligionists, we kindly ask to let us know whether the information mentioned in the said report as to his activism in Islamic circles are founded on the applicant's function as imam or on other, alien to this function, elements. (2) You also mention in the same report that the applicant is considered to be a militant of HAMAS. We would like to know whether this information is founded on specific elements, linked to specific activities of the applicant, that may, even potentially, put in jeopardy public order and security». The Administration replied to the a/m letter, explaining that the order of expulsion or deportation of the applicant from the country «is founded on elements and information, resulting from preventive police investigation on matters of state security, conducted by subordinate services, which are confidential (they cannot be made public)».

Reasoning and decision: A) The Court considered that the application to annul included the act by which the Minister of Public Order decided not to grant the applicant the white card and the decision to include the applicant's name in the list of undesirable aliens. Concerning this latter act, it decided that the inclusion of the applicant's name in the list of undesirable aliens cannot be founded on the fact alone that the applicant, before starting his legalization procedures, was residing illegally in Greece, given that the aim of P.D. 358/1997 was exactly to regularize the status of aliens who were then living illegally in the country. As to the rest, the applicant's file contains no element, prior to the act of his inscription in the undesirable aliens list, which justifies this inscription. It could have been that such reasons might have appeared in the applicant's file after the date of the said inscription (on condition that they referred to facts having taken place before the inscription); however the file contains no such evidence, either. Indeed, the a/m inscription act does not include any relevant reference, while the act by which it was decided not to grant the applicant with the "white card" simply mentions ? without any further explanation ? that the applicant's name was added to the list of undesirable aliens for reasons of public order and security and, more in general, of public interest.

It should be noted that the act initially ordering the applicant's expulsion merely mentions that this measure is imposed because the applicant «remains in the country illegally without fulfilling the legal conditions set by Law 1975/1991, creating serious problems of public order». Finally, the report which was invoked in order to found the Minister's rejection of the quasi-judicial appeal against the expulsion order only mentions that the appeal should be rejected for «reasons of national and public security»; these being that according to intelligence of the State Security Directorate the applicant «is actively involved in the local Islamic circles and is considered to be a militant of HAMAS».

B)The mere fact that the applicant is "active among Islamic circles», that is, among circles linked to a known (according to the meaning of article 13 para. 2 of the Constitution) religion, is not sufficient in order to consider that his activities put in danger public order and security. In view of this, the question arises as to whether the other claims of the Administration, alleging that the applicant is a member of an organization which is presenting a danger for public order and security, represent sufficient grounds for the act under review, by which the applicant was introduced in the list of undesirable aliens and, by extension, for all other acts under review, given that these allegations are made by the Administration without this latter having submitted to the Court the supporting evidence on the grounds that they are confidential.

C) In order for the Council of State to annul, according to art. 95 para. 1 case a) of the Constitution, an administrative act and offer individuals (be it Greek nationals or aliens) legal protection as specified in art. 20 para. 1 of the Constitution, it is necessary to have in its disposal unconstrained access to all evidence necessary for a valuation of the grounds of the application to annul and, more in general, in order to judge on the case.

For these reasons, P.D. 18/1989 «on the codification of legislation for the Council of State» stipulates that the rapporteur on a case takes good care so as to collect all evidence that may be crucial for the investigation and imposes on the Administration a similar obligation to provide in time the Council of State with all documentation requested by the rapporteur or the Court through preliminary ruling. This obligation covers also documents, which are qualified by the Administration as confidential, for reasons of the protection of state security or public order. This is due to the fact that the applicant may use such justification to limit free access to the said documents, but it may, by no means, represent a reason for refusing to give it to the Court.

Any contrary view would exceed the reasons for qualifying a document as confidential and would lead to the exclusion of important sectors of public action from the field of judicial control. Such a situation would represent a drastic restriction of the right to judicial protection, restriction that the Constitution would not tolerate. In the case, hence, that the Administration alleges confidential evidence as the grounds for having taken the administrative act under review, it is obliged to submit to the Council of State this evidence, in a form, certainly, that abides with their qualification as confidential. From its side, if the Court, meeting in camera, examines the evidence and deems that their confidential qualification is justified, due to their nature and the reasons of public interest invoked by the Administration, it may proceed to examine the legality of the act under review without submitting this evidence to the applicant and without mentioning its contents in its ruling. In the opposite case, it postpones ? by preliminary ruling ? the final judgment on the case in order for the applicant to know of this evidence and to present his views on it (see European Court of Human Rights, ruling dated 10.7.1998 Tinnelly and Sons and others and McElduff and others versus United Kingdom, Rec. 1998-IV, p. 1634 and foll. as well as Federal Republic of Germany Constitutional Court, ruling dated 27.10.1999, BverfGE 101, 106 and fol.).

The Council of State orders the Minister of Public Order to transmit, within 20 days after reception of the present ruling, in a way that himself considers appropriate with their possible qualification as confidential, all evidence which the Administration invokes in order to justify that the applicant is considered to be a member of an organization which is dangerous for public order and security.

[1] Editor's note: see decision 746/1998 of the Injunctions Committee in YRAL 1999, p. 81.