Decision No. 1904/2003 of the 4th Chamber of the Council of State

Summary of facts: Mr. Ô.C., a Turkish national and an ethnic Kurd entered Greece illegally, from the island of Samos on 18.8.1990 and the following day applied for asylum. On 21.1.1991, the General Secretary of the Ministry of Public Order rejected his application. Despite the rejection of his application, Mr. Ô.C. remained in Greece and, on 6.10.1997, he applied for a new examination of the asylum application submitting a number of documents that were not produced at the moment of the initial examination of the application for asylum. The General Secretary of the Ministry of Public Order considered that this evidence justified the re-examination of the case and ordered, as stipulated by article 5 of P.D. 83/1993, then in force, the ab initio examination of it.

In the ab initio examination of his case, Mr. Ô.C. claimed the following: he was a member of the leftist Kurdish party KAWA. After its dissolution, he joined the Kurdish organization ñÊÊ. In 1979, he was arrested in Adana for participating in demonstrations and was detained for six months. While awaiting criminal charges to be pressed upon him, he successfully passed the entry exams for the School of Political Sciences in Ankara and moved to that city. In 1983 he found out that he was sentenced in absentia to 6 years and 4 months imprisonment and decided, in order to avoid arrest, to leave his School. In 1985 he was arrested and served, in the prison of Malatya, part of his sentence – till August 1987. Later on, he was forced to join the army but one month after he joined the army, he deserted and moved to Ankara where he was arrested in May 1988 and sentenced to 5 years imprisonment because the search conducted in his lodgings found publications in the Kurdish language. In December 1989, after twenty months of imprisonment and while awaiting for his appeal against this last sentence to be heard, he was forced to join again the army. He deserted again, settled in Istanbul and, in August 1990, went to Kusadasi, wherefrom he crossed, by a small boat, to Samos. As a proof of his claims he produced the following evidence: a) certificate issued by the School of Political Sciences in Ankara dated 18.12.1991 which stated that he had been barred from the School in November 1984 and b) a document by the Prosecutor's Office of the State Security Court of Turkey, dated 19.12.1991, which allows to assume that the Court found him not guilty for the accusation of participating in an illegal organization and that he is still charged with other pending offences.

Mr. T.C.'s ab initio application was rejected by decision of the General Secretary of the Ministry of Public Order, dated 26.1.2000, on the following reasoning: «The documents produced by the applicant as new documentary evidence are lacking proof of authenticity. Specifically, they do not constitute valid proof since they are uncertified copies in an unofficial translation. Their content is vague and does not mention specifically the persecution he suffered from the Turkish authorities (prison sentence) that he invokes». Mr. T.C. appealed against this negative decision. The Appeals' Board after an oral interview with the applicant, by its opinion, dated 9.3.2000, advised in favor of the appeal stating that the applicant «is an ethnic Kurd, opposed to the regime of his country, that he suffered persecution from the authorities of his country which led to his being detained in the Ankara prison for twenty months, that he was forced to leave his University (School of Political Sciences) in order to avoid arrest and for that reason he was disbarred in 1984». In the end, however, the appeal was rejected, by decision of the Minister of Public Order, dated 29.7.2000, which contained a reasoning similar to that contained in the decision under review issued by the General Secretary of the said Ministry. With the same decision, the Minister of Public Order allowed the applicant's stay in Greece on humanitarian reasons.

Mr. T.C. applied to the Council of State, requesting to annul the Minister's decision for the part that it rejected his application to be granted refugee status.

Reasoning:

The Court concluded that the administrative act under review is not sufficiently reasoned. This is because for an alien (as expressly stipulated by article 1 paragraph 5 of P. D. 61/1999) to fall under the special international protection system set up by the Geneva Convention it is not necessary either to produce formal documentary evidence or a court sentence. According to the provisions of article 1A2 of the said Convention it suffices to ascertain that the applicant has "well-founded fear of persecution on the grounds of race, religion, nationality, membership of a social group or political opinions". The relevant administrative body must form its opinion on the above-mentioned issue, based on all evidence (as stipulated in article 3 paragraph 1 of P.D. 61/1999) and taking into account (in the cases of appeals as per art. 3. para. 3 of P.D. 61/99) the opinion of the special Advisory Committee, after having heard the applicant; the deciding authority has, in any case, the possibility to refer the case again to the said committee if so it deems.

The Council of State annulled the ministerial decision under review.