Decision No. 2771/2003 of the 4th Chamber of the Council of State

Summary of facts: Mr. H.Y., Turkish national, arrived illegally in the island of Megisti, on 5.12.1995, and applied, on the same day, for the Geneva Convention refugee status under the name of U.Y. A report, drafted on 19.6.1996 by the 3rd branch of the Ministry of Public Order State Security Directorate on that application, recommended to grant asylum because: a) the applicant was arrested and imprisoned for six months in his country as a member of the DEV SOL organization, while, in parallel, he was expelled from the Ankara University where he was a student, b) later, he was again arrested and sent to prison for two months, c) since 1991 he was active as a member of the "revolutionary People's Liberation Front" organisation, which was a spin-off of DEV SOL and, till 1994 he worked in a newspaper that expressed the opinions of this organisation and d) a number of criminal charges are still pending against him. The asylum application was rejected by decision of the General Secretary of the Ministry of Public Order, dated 24.6.1996. The applicant appealed against it on 15.7.1996. While his appeal was still under examination, the applicant informed the authorities that his real name was ?.?. By decision dated 12.4.1997, the Minister of Public Order rejected the said appeal lodged on 15.7.1996 on the grounds that "the claim that the applicant's name is not U.Y. but H.Y. is not proved by any piece of evidence in the applicant's file".

On 6.2.1998, the applicant submitted a request for an ab initio examination of his application to receive refugee status and in order to prove that his real name was H.Y., he produced a relevant certificate from the Ankara University. His request was rejected by decision of the General Secretary of the Minister of Public Order, dated 6.7.1998, on the grounds that the said certificate «cannot be considered as new crucial evidence, so as to justify an ab initio examination».

On 2.8.1998, Mr. H.Y. was arrested in the island of Paros and sentenced to 20 days prison sentence by the 3-member Syros Court of Misdemeanors for simple corporal injury. On 2.8.1998, an order signed by the Head of the Police, Security and Order Branch of the Greek Police, issued by order of the Head of the Police, ordered the applicant's deportation and banned him from re-entering the country before 2.8.2003. Following, though, a note dated 26.9.1998 by the 3rd branch of the Ministry of Public Order State Security Directorate stating that if the applicant is deported to his country "his life may be in danger", the Minister of Public Order decided, on 26.10.1998, to let the applicant "free, under tolerated stay, for a 3-month period so as to prepare on his own to leave the country".

On 19.1.1999, Mr H.Y. applied again for an ab initio examination of his asylum application. By act, dated 14.9.1999, the Director of State Security of the Ministry of Public Order stated that this last application "will not be examined, since a similar application, dated 6.2.1998, has already been examined and rejected"; he added that "no new evidence is produced to prove that the person who originally applied for asylum under the name of U.Y. is the same person who now applies for an ab initio examination of his application under the name ?.?". Finally, after the applicant was arrested in Athens on 12.1.2000, a decision of the General Secretary of the Ministry of Public Order, dated 28.1.2000, ordered the release of the applicant for humanitarian reasons, decided not to deport him, but set him a period of six months to leave for a country of his choice. This decision was taken on the basis of the note, dated 23.1.2000, from the 3rd branch of the State Security Directorate stating, "if the said person were immediately returned to his country of origin, such an act would violate article 33 of the Geneva Convention (non-refoulement principle)".

Mr H.Y. applied to the Council of State, requesting to annul the administrative act dated 14.9.1999 of the Director of State Security of the Ministry of Public Order which rejected his request for an ab initio examination of his application to receive the Geneva Convention refugee status and to annul the decision of the General Secretary of the Ministry of Public Order, dated 28.1.2000, for the part that it obliged him to leave Greece within six months.

Reasoning: A) The act of the Director of State Security which rejected the request for an ab initio examination of the asylum application on the grounds that "no new evidence is produced to prove that the person who originally applied for asylum under the name of U.Y. is the same person who now applies for an ab initio examination of his application under the name ?.?." is not sufficiently reasoned. This is because the crucial provision of article 5 of P.D. 83/1993 (similar to that of article 5 of P.D. 61/1999) does not exclude a new application for an ab initio examination of an asylum application, following the rejection of a previous similar application for an ab initio examination, if the former produces new, crucial evidence that was not submitted initially.

In the present case, the Director of State Security invokes, in the act under review, that the application for re-examination was submitted without providing new evidence as to the real identity of the applicant, despite that fact that a previous application for re-examination was rejected on the grounds that no new crucial elements were submitted as to that fact.

This reasoning is, however, shaken by other documents in the file. We refer, in particular, to the decision dated 12.4.1997, of the Minister of Public Order rejecting the asylum application because the Administration had doubts as to the identity of the applicant; the decision, dated 6.7.1998, of the General Secretary rejecting the request for a re-examination of the application because no crucial evidence was produced on the issue of the applicant's identity; the decision not to proceed to the deportation of the applicant but to allow him to stay in Greece for three months, taken by the Minister of Public Order, dated 26.10.1998, on the basis of the note by the 3rd branch of the State Security Directorate, dated 26.9.1998, stating that in case the applicant were returned to Turkey «his life might be in danger».

Further to this, after the Director of State Security issued the act under review, rejecting the request for re-examination dated 19.1.1999, the General Secretary of the Ministry of Public Order, decided, on 28.1.2000, that the applicant should not be deported to Turkey, accepting thus the opinion dated 23.1.2000 from the a/m branch of the State Security Directorate, that a «possible immediate return of the applicant to his country of origin would violate article 33 of the Geneva Convention». Taking into account the provisions of article 33 para. 1 of the Geneva Convention, one concludes that the Administration believed that the life or freedom of Mr. H.Y. were in danger in Turkey for the reasons stated in the a/m provision of the Geneva Convention. The opinion, however, of the 3rd branch of the State Security Directorate in its note, dated 26.9.1998, stating that in case the applicant were returned to Turkey «his life might be in danger» (an opinion repeated in a new note by the same services, dated 23.1.2000) presupposes logically that the Administration was convinced of the applicant's real identity.

All the above, lead to the conclusion that the Administration's doubts as to the identity of the applicant, on whose basis it had rejected the initially lodged asylum application as well as the first, in time, application for re-examination of the asylum application, had been lifted as the time (19.1.1999) of the new application of re-examination.

The Court concluded that the act under review of the Director of State Security was insufficiently reasoned. For this reason, it should be annulled and the case should be returned to the Administration for a new, lawful examination of the application for an ab initio examination of the applicant's request, dated 19.1.1999, to receive the protective status of the Geneva Convention.

B) At the same time the decision of the General Secretary of the MPO, dated 28.1.2000, should also be annulled for the part that it is applied for (that is concerning the obligation for the applicant to leave Greece within six months). This is due to the fact that this latter act is based on the decision under review: the act rejecting the request for an ab initio examination of the asylum application of the applicant dated 19.1.1999.

The Council of State annulled the acts under review, issued by the Director of State Security and the General Secretary of the Ministry of Public Order.