Decision No. 3381/1997 of the Council of State

Summary of facts: The Applicants, a Sri Lankan couple, entered illegally in Greece from Turkey on 5.9.1992 and applied for asylum in Athens on 2.2.1993, claiming fear of persecution in their country due to the political activity of the husband in J.V.P. movement. They also claimed that they both were wanted, as was the wife's brother, their pictures being shown daily on the TV. The husband's application was rejected on 23.3.1993 for lack of the conditions for recognition laid down in the Geneva Convention. In particular it was mentioned that his file included no elements proving his persecution and that he had left his country willingly in order to settle in Switzerland in search of a better living. The applicants were informed of the decision on 21.4.93. On 18.6.93 the wife applied for a review of her case, on behalf of herself and her husband, claiming well-founded fear of persecution for herself, her husband and her entire family – her brother, arrested on charges of conspiracy to overthrow the government, had escaped before his trial and was a recognized refugee in Thailand. Following her brother's arrest the entire family suffered harassment and intimidation. As corroborating evidence she produced, anew, documents which she had also submitted to the police in the first place but which were not understood and not included in her file. These documents were a) newspaper cuttings on her brother's political activity b) a certificate from the J.V.P. c) a letter by her brother's lawyer, a Sri Lankan M.P., d) a Sri Lankan-based human rights organization document on her brother e) a UNHCR certificate and f) a document informing her family that they might be executed unless her brother gives himself to the authorities. On July 14, 1993the M.P.O. Secretary General rejected the application for review.

Reasoning and decision:In view of the evidence produced by the Applicant to the M.P.O. in her application for review of the case, the rejection of the review was decided without proper evaluation of these elements; it was thus inadequately justified. Further to this, the fact that the Applicant's fear was due to her brother's activities, does not waive her right to be recognized a refugee since, according to art. 1A2 of the Geneva Convention, in view of what happened to her brother, she also had well-founded fear of suffering a similar fate. 

The Court rejected as inadmissible the application for annulment, concerning the Applicant's husband, because he did not produce a power-of-attorney for his lawyer and was absent from, and not represented in the Court. 

The Court quashed the administrative act under review. 

Note: The said asylum application is particular in the sense that the Applicant did not appeal, as was allowed by prior legislation, before the Minister, since this procedure was already by then invalid. In fact, P.D. 83/1993 "on the refugee recognition procedure" was already published in the Official Journal on 19.3.1993 and the rejection decision mentioned the previously valid 30-day deadline for appeal, rather than the 5-day deadline, as per art 4 para.3 of P.D. 83/1993.  In this way a second instance examination of the case took place only by means of art. 5 of P.D. 83/1993, which contains no deadlines.