Decision No. 2198/2004 of the 4th Chamber of the Council of State

Summary of facts: The applicant, M.U., an Iraqi national entered Greece, through the island of Lesvos, on 4.2.1992. The following day he applied for refugee recognition status on the grounds of article 1 A 2 of the Geneva Convention on the Status of Refugees. His application was rejected, by decision of the General Secretary of the Ministry of Public Order on 22.3.1992, while the subsequent applications he lodged on 9.11.1995 and on 9.4.1996 for an ab initio examination of his case were rejected as it appears from the relevant documents issued by the State Security Directorate of the Hellenic Police. Following this, the applicant lodged, on 8.7.1997, an application to remain in Greece on humanitarian grounds as per articles 25 para. 4 of Law 1975/1991 and article 8 of the P.D. 61/1999. The General Secretary of the Ministry of Public Order accepted the application, allowed him to remain in Greece on humanitarian grounds and ordered to issue for him the "special 1-year residence permit", provided for in article 8 para. 1 of the said P.D. 61/1999. Subsequently, the validity of this special residence permit was prolonged till the 1.8.2002. On 18.6.2002, Mr. M.U. applied to the Aliens' Department of Western Attica, requesting a further renewal of the said document for another year as per article 8 para. 1 of the P.D. 61/1999, invoking humanitarian reasons. His application was forwarded to the Aliens Directorate of the Hellenic Police. This latter, in a document, dated 5.8.2002 and signed by the Head of the 3rd Unit of the said Directorate informed the a/m Aliens Department that the "General Secretary did not allow the said alien to remain in our country on humanitarian grounds, because he considered that his application cannot fall under the grounds for protection stipulated in article 8 para. 2 of P.D. 61/1999". Mr. M.U. applied before the Council of State, requesting to annul the act, dated 2.8.2002, of the General Secretary of the Ministry of Public Order, referred to in the said document of the Aliens Directorate of the Hellenic Police. The attorney-at-law who appeared before the Court was not the one who had signed the application to annul and was given a deadline in order to provide the necessary powers of attorney.

Reasoning and decision: A) According to the provisions of article 15 of Law 3068/2002, the Council of State continues to be competent to annul an administrative act that either rejects the application lodged by an alien who rejected to remain provisionally in Greece, as per articles 25 para. 4 of L. 1975/1991 and 8 of P.D. 61/1999 for the grounds therein, or that rejects the application to renew the special residence permit on humanitarian grounds issued to such an alien for the reasons stated in these articles. The reasoning is that the above mentioned provisions of L. 1975/1991 and P.D. 61/1999 are part of the national refugee legislation and provide measures in favor of aliens who, although not fulfilling the refugee recognition criteria of the international Geneva Convention, require, nonetheless, special protection from dangers that are mainly linked to the situation in their country of origin or residence. For these reasons, the Greek legislation provides a protection status for such persons similar to the protection applying for aliens who have either been recognized as refugees according to the international Geneva Convention or have applied for such status and their application is still pending. According to the minority opinion, expressed by Judges D. Makris and E. Mazos, article 15 para. 3 subparagraph (d) of L. 3068/2002, stipulates that the Council of State continues to be competent to rule only on these acts that are directly linked to the function and legal status of a refugee, such as, in particular, the refusal of refugee status recognition, the revocation of an act granting asylum and the deportation of a refugee, as per article 6 of P.D. 61/1999 and articles 32 and 33 of the Geneva Convention. B) The Court ascertained that the deadline set to the attorney at law who appeared in the hearing of the case in order to provide the power-of-attorney elapsed.

The Council of State rejected the application to annul as inadmissible for lack of the power-of-attorney of the attorney at law who represented the applicant in the hearing.