THE DUBLIN II TRAP TRANSFERS OF ASYLUM-SEEKERS TO GREECE 53 88 Amnesty International notes that the Greek NGO Aitima recently started providing legal aid at Athens airport to Dublin II returnees with funding granted under the Emergency Measures of the European Refugee Fund. The project, while a welcome step, is of a temporary nature, expected to be implemented for approximately two months, and as such does not address the structural problem of lack of access to legal counsel for asylum-seekers. 89 Greek Ombudsman, Press release 15 October 2009, The serving of rejection decisions to asylum applicants. 90 Interview with Mariana Tzeferakou, lawyer, 29 July 2009. 91 See the report of the Commissioner for Human Rights of the Council of Europe, following his visit to Greece on 8-10 December 2008, published on 4 February 2009. 92 Prior to the changes introduced by PD 81/2009, legal aid was available only for annulment applications for a negative decision issued in the second instance. 93 UNHCR, Observations on Greece as a country of asylum, December 2009. 94 A lawyer’s costs for representing such a case in the Council of State is approximately €1,500. 95 Press Release of the Union of Trainees and New Lawyers of the Athens Bar Association, www.eanda.gr/news.php?extend.431 96 www.dsa.gr/word_docs/PROTASEIS_GIA_METANASTEYSH_17-6-2009.doc 97 It is established ECJ case law that individuals are entitled to effective judicial protection of the rights conferred on them by the Community legal order; “Community law requires effective judicial scrutiny of the decisions of national authorities taken pursuant to the application of provisions of Community law” (Case C-327/02, decision of 16 November 2004, para. 27). Effective judicial protection is a general principle of EC law (C-50/00, Union de Pequenos Agricultores, 2002). This requires that the appeal body has the power to review both facts and issues of law (ECJ, Judgment Dörr and Ünal, Case C-136/03, 2 June 2005, para. 57), to quash, if necessary, the decision of the administrative authorities (Commission v. Austria, C-424/99, 2001) and to grant interim relief (Unibet, C-432/05, 13 March 2007, para. 67). The notion of effectiveness also implies that the person should be able to access judicial protection in legal and practical terms. 98 Relevant European Court of Human Rights judgments concerning the right to an effective remedy include: NA. v. the United Kingdom, application no.25904/07, judgment of 17 July 2008 (full and ex nunc assessment of expulsion cases falling within the scope of Article 3 ECHR); Jabari v. Turkey, application no. 40035/98, judgment of 11 July 2000 (the remedy may prevent the execution of measures that are contrary to the Convention and whose effects are potentially irreversible) and Chahal v. the United Kingdom, application no. 22414/93, judgment of 15 November 1996 (under Art. 13, the appeal body must be competent to examine the substance of the applicant's complaint); Muminov v. Russia, application no. 42502/06, judgment of 11 December 2008 (ability of the appeal authority to effectively review the legality of executive discretion on substantive and procedural grounds and quash decisions as appropriate); Conka v. Belgium, application no. 51564/99, judgment of 5 February 2002 (see Jabari), Gebremedhin v. France, application no. 25389/05, judgment of 26 April 2007 (on the automatic suspensive effect of a remedy). 99 L v Federal Republic of Germany, Decision of 10 December 1984; V and P v France, Decision of 4 June 1991. 100 Jabari v Turkey, Application No. 40035/98, Judgment of 11 July 2000, para. 50. 101 AI Index EUR 25/005/2009, 15 May 2009. 102 Proposal for a Directive of the European Parliament and of the Council on minimum standards on procedures in Member States for granting and withdrawing international protection, Brussels, COM(2009) 554/4/2009/xxxx (COD) 103 At the moment there are some 42,700 pending appeals. It could take years before the Advisory Appeals Committees examine the applications and the competent Minister reaches a decision, therefore the asylum application cards continue to be renewed until a final decision is issued. 104 The transfer of the decision-making authority for pending appeals to the Deputy Minister of Interior has been a cause of concern regarding the access of the applicants to an independent review of the decision at first instance; see UNHCR Press release, “UNHCR will not participate in the new asylum procedure in Greece unless structural changes are made”, No. 32/09, 17 July 2009. Following the restructuring of the Ministry of Interior after the national elections of October 2009, responsibility for asylum has been transferred to the newly established Ministry of Citizens’ Protection.