The ECHR judgment of 13 October 2016 in the case of B.A.C. (B.A.C.) v. Greece (application No. 11981/15).
In 2015, the applicant was assisted in preparing the application. Subsequently, the application was communicated to Greece.
In the case, a complaint was successfully considered for evading an authorized person from passing a decision on the applicant's application for asylum. In the case there was a violation of the requirements of Article 8 of the Convention for the Protection of Human Rights and Fundamental Freedoms.
CIRCUMSTANCES OF THE CASE
The applicant is a Turkish citizen and a pro-Kurdish militant. After the detention and accusation in Turkey of undermining the constitutional order of the state, he fled to Greece and requested asylum there in 2002. His request was rejected in a simplified form by the administrative body of first instance. The applicant filed an administrative complaint to the Minister of Public Order. In accordance with the laws of Greece, the Minister was to make a decision within 90 days after receiving the conclusion of the advisory committee on asylum issues. In 2003, the committee interviewed the applicant and expressed his opinion in favor of granting him refugee status (the documents submitted supported his allegations of torture). However, there was no clear reaction to the applicant's complaint.
Turkey has submitted a request for the extradition of the applicant. In 2013, the courts rejected the request on the basis of the threat of ill-treatment and the vague and abstract nature of the alleged crime.
Since 2003, the applicant has been living in Athens, is being monitored by the police every six months to update his asylum seeker card. In the same year, his wife came to him, but her stay was legalized only in 2008, when she entered into a labor contract.
ISSUES OF LAW
Concerning compliance with Article 8 of the Convention. The problem that arises in the present case is not connected with orders for expulsion or deportation, but with the unstable and uncertain circumstances of the applicant for a long period, namely from the time of filing his complaint, to which he has not received an answer for more than 12 years, on rejection of his application for asylum. In this context, the applicant's uncertainty about his status took a completely different dimension with respect to the asylum seeker who was simply waiting for a reasonable time for the outcome of the proceedings regarding his application. Several aspects of these unstable circumstances should be noted:
- in the process of waiting for the decision, the applicant worked in the absence of a work permit. At that time, asylum-seekers seeking to obtain such permission were subject to restrictive conditions: they had to prove, in particular, that unemployed citizens, citizens of other countries of the European Union or any person who did not show interest in work in a particular profession or in a particular sector has already acquired refugee status, and in addition to this legal obstacle, there has been a practical difficulty associated with the economic crisis and the high number of unemployed job seekers;
- as the holder of the asylum seeker's card, the applicant could not open a bank account or obtain a tax identification number;
- The above was a prerequisite for the implementation of professional activities or even obtaining a driver's license or admission to the university;
- Regarding the applicant's private life, it was not possible or legal for him to live with his wife until 2008, when she was granted a work permit in Greece for a limited period, and not because of regulations governing family reunification.
It should be concluded that the evasion of the Minister of Public Order from the decision on the applicant's application for asylum was unjustified and no explanation was given for this situation, which lasted more than 12 years, despite the fact that the Greek authorities recognized the need to grant the applicant asylum, and They also rejected the Turkish authorities' request for his extradition.
Accordingly, the competent authorities have not fulfilled their positive obligation to ensure an effective and accessible procedure for protecting the right to respect for private life through effective rules ensuring that the applicant's application for asylum is examined within a reasonable time so that he remains in a state of uncertainty within the shortest possible period.
The violation of the requirements of Article 8 of the Convention (unanimously) was committed.
See the opposite example in the case of denial of residence to the applicants who illegally resided in the host country and tried to place the domestic authorities before the fait accompli of family life: the case law cited in the Judgment of the Grand Chamber of the European Court in the Jeunesse case v. Netherlands) of 3 October 2014, complaint No. 12738/10.
The Court also found that there had been a violation of the requirements of Article 13 of the Convention in conjunction with Article 8 of the Convention (unanimously).
Article 3 of the Convention, in conjunction with Article 13 of the Convention. The Court dismissed the Government's argument that the court's decision to refuse the extradition of the applicant hindered his return to Turkey, finding that these decisions do not invalidate the temporary administrative decision to reject his application for asylum and therefore can not be considered as providing him international protection.
On this basis, the Court concludes that the applicant's asylum applications continue to be permanent, noting that instructions on this can be found in police correspondence. As his legal status remained unclear, the applicant was threatened with a sudden deportation to Turkey in the absence of the possibility of effectively considering his application for asylum, although there were signs of a significant threat of treatment contrary to Article 3 of the Convention in that country.
In the case of violation of the requirements of Article 3 of the Convention in the event of the applicant's return to Turkey in the absence of ex nunc assessment by the Greek authorities of his personal circumstances in the light of the criteria established in the relevant case-law of the European Court (unanimously).
Ex nunc (lat.) - as of the current time.
In the application of Article 41 of the Convention. The Court awarded the applicant EUR 4,000 in respect of non-pecuniary damage.
See also R.U. v. Greece, judgment of 7 June 2011, application no. 2237/08.