Decision No. 3103/1997 of the Council of State

Summary of facts: The Applicant, an Iraqi national, entered illegally in Greece from Turkey on 31.7.1993 and applied for asylum in Athens on 5.8.1993. His application was rejected on the same day as inadmissible according to art. 25 para. 1 b' of L. 1975/1991. The applicant appealed against this decision, maintaining that he did not apply for asylum in the nearest point of entry because he thought this could only be done in Athens. He also claimed that he could not remain in Turkey since he could be deported back to Iraq where his life would be in danger (he was threatened by members of a rival Iraqi Kurdish party). His appeal was also rejected as inadmissible because his application was not lodged immediately upon arrival in the nearest point of entry and he came through Turkey where he faced no danger of persecution. The applicant appealed against this decision before the Council of State.

Reasoning and decision:A) The Court considered that, according to art. 1A2 of the Geneva Convention, an alien arriving in Greece and applying for asylum does not have to arrive directly from his country of origin, but simply must have fled a well-founded fear of persecution on the grounds referred to in the said article. Further to this, it interpreted art. 25 para. 1 of Law 1975/199 as follows: the asylum application must be submitted within reasonable time after an illegal entry but not necessarily before the authorities in the nearest point of entry. Other relevant factors may be taken into consideration, i.e. communication possibility, way of entry, psychological conditions; these factors vary on each case and determine the meaning of "reasonable time". The reasoning of the Administration is thus ill-founded, in its first part, since it did not examine the reasons provided by the applicant for the 5-day delay in his application. B) Art. 25 para. 1 B' of Law 1975/1991 is null and void as it goes against a superior piece of legislation (in this case art. 1A of the Geneva Convention having superior force as per art 28 para 1 of the Constitution). This has been reiterated in previous case-law. The reasoning is thus not legal, as to its second part. A person arriving via a third country can nonetheless be recognized as refugee if other conditions (well-founded fear of being returned to Iraq, for reasons of race, religion, membership of a social group or political opinions) are valid.   

The Court quashed the administrative act under review.