Decision No. 1903/2003 of the 4th Chamber of the Council of State

Summary of facts: Mr. Ç.Ç., an Iraqi national and ethnic Kurd, entered Greece illegally from the Evros river on 3.9.1995. Initially, he was put, together with other co-nationals, under the status of temporary protection of the U.N. High Commissioner for Refugees. On 16.5.1998 he applied for asylum. His application was rejected on 9.4.2000 by decision of the General Secretary of the Ministry of Public Order. He appealed against this decision before the Ministry of Public Order as provided by article 3 para. 3 of P.D. 61/1999.

In his appeal, he stated that, since 1977, he has been a member of the "Patriotic Union of Kurdistan" organization. In 1982, the authorities forced his family to leave the city of Kirkuk and move to the city of Suleimaniye in Iraqi Kurdistan. In June 1986, two of his brothers were arrested in that city, accused to be members of the above-mentioned organization, while he himself was arrested, two days later, in Baghdad, under the same accusations. He was detained for six months, during which he was often tortured and was finally condemned to death. He was freed in August 1988, following a general amnesty that was granted at that time. He then found out that one of his brothers had been executed. Between the end of 1988 and 1992, he had no contacts with the said organization. Since 1992, however, following the Iraqi revolt in Northern Iraq, he became again active in Baghdad and for this reason he was under watch by the security authorities. In 1995 he was obliged to leave Baghdad and moved to Suleimaniye. In that city, though, the Patriotic Union of Kurdistan gave him the task to identify these persons collaborating with the Baghdad security service and his life was, thus, in danger from these services.

For this reason and following relevant advice by the organization whose member he was and which also paid for his travel costs, he left Iraq and arrived in Greece, through Turkey. To corroborate his claims, he produced the following: a) a certificate from the Patriotic Union of Kurdistan, dated 13.3.1999, which states that the applicant was an active member of that movement since 1979, b) a certificate from the Medical Center for the Rehabilitation of Torture Victims, dated 15.7.1999, signed my a medical doctor and Director of the Center, which states that Mr. Ç.Ç. had, in the past, suffered torture and «presents a 2–cm scar in the front side of his left shin».

The Appeals' Board, set up by the P.D. 61/1999, by majority and following an interview with Mr. Ç.Ç. advised in favor of accepting the applicant's appeal. In its opinion, dated 22.6.2000, it states the following: «The evidence in the applicant's file (Patriotic Union of Kurdistan I.D., document from Amnesty International, etc.) provides strong probability that the appellant is opposed to the political regime of his country; this situation represents a reason for granting refugee status. His oral evidence leads to the conclusion that he suffered persecution by the authorities of his country for his political opinions and his ethnic origin».

The Minister of Public Order, by a decision dated 29.7.2000, rejected the appeal and the application by M. H.H. to be granted refugee status but allowed his stay in Greece on humanitarian grounds. The rejection decision was reasoned as follows: «The mere statement of the fact that the appellant is opposed to the established regime of his country as well as his Kurdish ethnic origin are not, on their own, sufficient grounds for granting refugee status. The appellant might have sought protection in another part of his country where he could receive protection from the local authorities (Northern Iraq)».

Mr. Ç.Ç. 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, by majority, that the administrative act under review is not sufficiently reasoned. It is true that the ethnic origin of the applicant or his opposition to his country's governing regime are not, by themselves, sufficient to allow him to fall under the special international protection system set up by the Geneva Convention; in the case under review, though, the appeal before the Minister of Public Order supplied specific claims supplemented by documentation (certificate by a Kurdish organization, certificate by the Medical Center for the Rehabilitation of Torture Victims) referring to the activities of the applicant and members of his family which could substantiate his fear of persecution on the grounds of nationality and political opinions. Further to this, the appeal stated the reasons for which the applicant would not, from this point of view, be safe in Northern Iraq either. On the basis of this evidence and the oral interview with Mr. Ç.Ç., the Appeals' Board was convinced that the appellant suffered persecution in his country for his political opinions. The minority opinion, expressed by Counselor Mr. G. Papageorgiou, stated the following: «the applicant, on the basis of his appeal, suffered persecution by the Iraqi regime (imprisonment, torture, death condemnation) which ceased in the year 1988; since then and till 1995, he traveled on various missions in the Kurdish areas of Northern Iraq which were not under the control of the said regime. Further to this, besides the above-mentioned certificate about his membership to the Patriotic Union of Kurdistan, he only produced a "medical certificate" dated 15.7.1999 by the Medical Center for the Rehabilitation of Torture Victims» on the tortures he suffered. This exhaustive "medical certificate" though, does not include (and how, in fact, could it have included, given that torture was, according to the appeal, inflicted before 1988) any personal finding. It is only based on the relevant description by the applicant. In view, hence, of the above-mentioned claims in the appeal, the disputed, according to the majority, reasoning of the decision under review «that the applicant might have sought protection in another part of his country where he could receive protection from the local authorities (Northern Iraq)» appears, to the minority opinion founded and sufficient, especially given that the applicant did not produce any evidence about his life in Northern Iraq after 1988.

The Council of State annulled the Ministerial decision under review considering, by majority, that it was not sufficiently reasoned.