Out of the spotlight: The rights of foreigners and minorities are still a grey area
problem and announced that it would look at a
reform of its appeal system. The data presented
in this report shows that the lack of substantial
reforms in this area has led to serious
violations of the human rights of applicants.
The first instance examination of applications
is carried out by the Ministry of Public Order,
which is also charged with guarding the
country’s borders and preventing the entry of
undocumented migrants. Given the fact that
many of these individuals subsequently seek
asylum, it is likely that of some the first
instance decisions of the Ministry of Public
Order could be tainted with subjective bias
against the applicants, and that these decisions
could be inaccurate. An independent review of
the substance of rejected asylum applications
would help to ensure that asylum applications
are not rejected without due cause, and those
asylum-seekers who would be at risk of torture
or other serious human rights violations are not
returned to their countries of origin. Instead,
under the current provisions, the Ministry is
also charged with reviewing decisions to reject
an asylum claim. The intervention of UNHCR
in these decisions is severely limited – at first
instance,
the UNHCR
may provide
information relevant to the case, while at the
review stage an expert sits on the “Appeals
Board” but effectively has no vote, since the
Board is not a decision-making, but a
consultative body.17
A re-examination ab initio of an application,
which is available to applicants who have been
rejected at the second stage, can be ordered by
the Council of State. However, the scope of the
Council of State’s review of the case is
restricted by the fact that it is solely a
procedural review, which examines the
preceding process of examination but not the
substance of the claim. Amnesty International
believes that the assessment of asylum claims
should include an independent review of
negative decisions that would allow the
11
application to be considered by an independent
body on both points of law and facts.
Absence of such a review constitutes a
violation of international refugee law because
it exposes individuals to the risk of
refoulement. The European Court of Human
Rights has clearly stated that “the authority
referred to in article 13 may not necessarily be
a judicial authority but, if it is not, its powers
and the guarantees that it affords are relevant
in determining whether the remedy before it is
effective” (ECHR, Silver and others v. United
Kingdom, judgment 25 March 1983). In the
case of Klaas and others v. Germany, 6
September 1988, the European Court has
further developed its ruling. According to this
jurisprudence, “a remedy before a national
authority is considered effective when that
authority is judicial; or, if it is a quasi-judicial
or administrative authority, it is clearly
identified and composed of members who are
impartial and who enjoy safeguards of
independence; […] The remedy is accessible
for the rejected asylum-seeker; and the
execution of the expulsion order is suspended
until a [final] decision is taken.” The Court
further stated that the appeal authority must
have competence both to decide on the
existence of the conditions provided by Article
3 of the ECHR and to grant appropriate relief.
This jurisprudence has been codified in the
Recommendation n° R (98) 13 of the
Committee of Ministers to Member States on
the right of rejected asylum-seekers to an
effective remedy against decisions on
expulsion in the context of Article 3 ECHR. It
should also be noted that the right to an
effective remedy before a court of law or a
tribunal is also embedded in article II-47 of the
EU Charter of Fundamental Rights and Article
38 of the draft EU directive on asylum
procedures.18 The present system falls short of
these provisions.
18
17
This limitation has in fact been cited as one of the
contributing factors rendering Greece “an unsafe
host country” (Skordas and Sitaropoulos, ibid).
Amnesty International 5 October 2005
Amended proposal for a Council Directive on
minimum standards on procedures in Member
States for granting and withdrawing refugee status
on 29 April 2004, 8771/04 Asile 33.
AI Index: EUR 25/016/2005
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