Decision No. 497/2003 of the Committee of Injunctions of the Council of State

Summary of Facts: The Committee set up by virtue of article 3 para. 5 of P.D. 61/1999 (Appeals' Board) accepted the relevant claims of Mr. H.D., asylum seeker from Turkey and, by majority, advised in favor of his application for refugee status, considering that he fulfills the criteria to be recognized as a refugee on the grounds of article 1 & 2 of the 1951 Geneva Convention. In particular, it considered that the applicant is «of Kurdish ethnic origin and was a member of the political organization DEV-SOL; his tasks consisted in providing reinforcements to the countryside groups by means of the truck he owned»; that «he was arrested in 1995 and that in his shop were found documents and material belonging to the organization» and that «he was sentenced to 10 years imprisonment in absentia by a State Security Court in Ankara, for membership of an armed organization aiming to overthrow the regime». The Minister of Public Order rejected Mr. H.D.'s application, against the above-mentioned Appeal's Board opinion, and based the decision on the following reasoning: «The mere opposition to the regime of his country does not suffice to substantiate application. No evidence demonstrates that he suffered or is in danger of suffering individual persecution by the authorities of his country for reasons of race, religion, nationality, membership of a particular social group or political opinion». Mr. H.D. applied to the Council of State, requesting the annulment of this negative decision and provisional judicial protection.

Reasoning and decision: The Committee of Injunctions considered that the ministerial decision under review, which rejected Mr. H.D.' s asylum application, is an administrative act with negative content, and, as such, its execution cannot be suspended. In view, however, of the facts that were admitted in the relevant Appeals' Board opinion (whose accuracy was disputed by the Minister of Public Order without, nevertheless, specific reasoning) the Injunctions Committee considers that any measure taken, on the grounds of the decision under review, to deport the applicant from Greece and to return him to Turkey would cause irreparable damage to the former, in case his pending application were accepted, because his freedom and safety would be endangered.

By applying article 59 para. 8 of P.D. 18/1989 as replaced by article 36 of L. 2721/1999 and by application of article 2 para. 7 of P.D. 61/1999 which stipulates that persons who have applied for international protection on the grounds of the 28.7.1951 Geneva Convention, are given the relevant special document which gives beneficiaries the right to work, in order to cover their immediate needs and, also, if they fulfill certain additional conditions, the right to receive free medical care, the Injunctions' Committee decides that the Administration should not proceed to withholding the asylum applicant's special card or, in case it had already taken it away, it should return it to the applicant, so that the applicant may return completely to the status under which he was before the ministerial decision under review rejected his asylum application.

The Committee of Injunctions ordered the Administration to refrain, till a final decision on the said pending application to annul be issued by the Council of State, from any action taken exclusively on the grounds of the Ministerial decision, rejecting the applicant's asylum application, under review, which would result to the application having to forcibly leave Greece.