Decision No. 957/2003 of the 4th Chamber of the Council of State

Summary of facts: Mr. C.F., Turkish national, is originating from the region of Dyaberkir, in Southeast Turkey, and is considered to be an ethnic Kurd. On 12.2.1999, he entered illegally into Greece, using a small motorboat, and came ashore in the island of Kos. On 10.3.1999, he submitted an application to the Lavrion Aliens Police Department requesting to be recognized as a refugee on the grounds of art. 1A2 of the 1951 Geneva Convention. The application was rejected by decision of the General Secretary of the Ministry of Public Order, dated 22.5.2000. The decision included the following reasoning: «the applicant does not fulfill the subjective and objective elements of well-founded fear of personal persecution, allowing for his recognition as a refugee (...). Ideological opinions contrary to the established regime of his country are not sufficient grounds for granting asylum. No evidence provided demonstrates that he was in danger of suffering personal persecution in his country for reasons of race, religion, nationality, membership of a particular social group or political opinion. He left his country in order to find a job and to improve his living conditions, as well as to avoid doing his military service».

This decision was notified to the applicant on 15.6.2000 who appealed against it, according to the procedure foreseen in art. 3 para. 3 of P.D. 61/1999. The 6-member Appeals' Board set up by para. 5 of the said article examined this appeal. In its opinion, dated 1.2.2001, formulated on the basis of the applicant's file and after an interview with the latter, who, according to the relevant certified minutes of the Board, was assisted by an interpreter, the Board by majority (composed of three members including the chairman) advised in favor of granting the applicant the refugee status on the following grounds: «the applicant fulfills the necessary criteria, required by the 1951 Geneva Convention and the relevant 1967 New York Protocol, to be recognized as a refugee. Specifically, he suffered individual persecution from the authorities in his country. He is a HADEP member. Since 1990 he has been active in canvassing and propaganda activities, and in organizing groups for protest meetings. At the age of 12, he was arrested for the first time and was tortured for 10 days. His parents were arrested for offering assistance to the ñ.Ê.Ê. There is a certificate from the Medical Center for the Rehabilitation of Torture Victims that he has been tortured with phalanx and suffered electrocution».

Later, the Minister of Public Order issued the decision under review. The application and the applicant's request to be recognized as a refugee were rejected with the following reasoning: «The applicant does not fulfill the requirements of article 1 Á of the Geneva Convention. In particular, mere opposition to the established regime of his country and support of a political party are not sufficient, alone, to justify the recognition as a refugee. No evidence demonstrated that he suffered or is suffering persecution in his country for reasons of race, religion, nationality, membership of a particular social group or political opinion. It is obvious that he left his country to avoid doing his military service».

Mr. C.F. applied to the Council of State, requesting to annul the said decision of the Minister of Public Order, which rejected his application to be recognized as a refugee.

Reasoning: The Court considered that the Ministerial decision under review is insufficiently justified because: a) the applicant, in his application fïr receiving the refugee status did not invoke mere opposition to the regime of his country or simply his membership of a political party; he also referred to persecution suffered by himself and his family due to their Kurdish ethnic origin and to their links to Kurdish parties b) the Minister refers, in a very general way, to the fact that no evidence demonstrated that the applicant suffered persecution for reasons of nationality, political or other opinions, without specifically reasoning, as it is imposed by the general principle of administrative Law, formulated in article 20 para. 2 of the Code for Administrative Procedures, why he differs from the simple opinion expressed by the Appeals' Board set up by art. 3 para. 5 of P.D. 61/1999, which accepted by majority, that it has been proven that the applicant was arrested and tortured at the age of 12 and that his parents were arrested for being linked to the P.K.K. activities c) the Minister of Public Order, in the act under review, does not invoke any specific element in order to sustain his judgment that the only (and indeed an obvious reason) reason for the applicant's departure from Turkey was draft-evasion.

The Council of State quashed the ministerial act under review.