Greece, Hellenic Council of State , 10 April 2017 Decision n. 1238/2017

Identification of the case

• Right to an effective remedy and to a fair trial (art. 47 CFREU)

• Articles 40, 41, 44, 48, 49 and 52 of L. 4375/2016 (as amended with L. 4399/2016)

• Articles 4, 18, 19, 47 and 52 CFREU
• Article 78 para. 2 TFEU
• Council Directive 2013/32/EU
• Council Directive 2011/95/EC

Summary of the case

“Team of Lawyers for the Rights of refugees and immigrants”, an Association for the protection of refugees and immigrants, brought before the Court an application for the annulment of certain dispositions of a number of joint ministerial decisions for the implementation of L. 4375/2016.

• Administrative judicial enforcement

No measures/remedies applied.

The provisions of L.4375/2016, as amended with L.4399/2016, implement the  obligations and guarantees for the procedure of granting and revoking status of international protection set out in Directive 2011/95 on the first instance procedure (See particularly articles 4, 10, 12, 14 - 17, 19 – 20 of Directive and articles 1, 4, 39 - 41, 44, 51, 52 of L. 4375/2016, in particular the requirement off reasoned decisions by a trained personnel  on an individual basis after a well-founded objective and impartial consideration and review of the merits and the legal grounds, individualized interview, legal aid and information and interpretation), as well as on the second  instance procedure. In particular, as regards the second  instance procedure, the Independent Refugee Committees  of the art. 4 par.1 of L. 4375/2016, as amended with art. 86 par.1 of L.4399/2016, were founded, according to the reference in the art. 61 of the Law of art.46 of Directive 2013/32 as being the respective article, in order to ensure the requirements set out in Art. 46 of the Directive “right to effective recourse before a court”, namely a right to effective judicial protection, and those of Art. 47 of CFREU, first para.  which corresponds to Art. 13 of ECHR (See CJEU judgment of 18.12.2014, C-293/14, Tall, para. 52). Specifically, it was held that the Refugees Committees, which is competent for reviewing quasi-jurisdictional appeals of the asylum seekers, for ensuring the review of the merits and the legal grounds of negative decisions of first instance committees, are characterized in the travaux preparatoires of the art. 86 of L. 4399/2016, as quasi-jurisdictional organs assembled for a three-year tenure by a majority of active judicial officials (judges of ordinary administrative courts). The members of these committees, as mentioned in art. 5 par.3 al.3 of the Law, are vested with the guaranties of functional and personal independence. In specific, the third member is indicated by UNHCR, but it is, according to the Law, independent from the administration, also vested with the guaranties of functional and personal independence and can be terminated before the expiry of its three-year tenure only after denunciation of their contract, for grave grounds. Furthermore, the suspension of the exercise of any other public office or professional activity is provided  in article 5 (3) and (4) of the Law.  Contrary, the Council of State held that it is of no importance that the above-mentioned third member of the committees is linked to a private-law contract with the State and does not have the status of a judicial officer and that it is submitted to the disciplinary provisions of the Code of State of Civil Administrative Servants and Employees of Public Entities [Article 5 (3), final paragraph, of Law 4375/2016] and not to the corresponding provisions (Article 90 et seq.) of the Code of Organization of the Courts and Status of Judicial Officers, ratified by the first article of Law 1756/1988 (see Article 33 thereof for its ratione personae scope). Furthermore, compliance with the principle of impartiality is ensured by the fact that these committees enjoy a third party status as opposed to the parties involved and do not represent the Administration. It is also stated that the competent Minister may bring an action only for annulment of the acts of those committees [see Article 64 (2) of the Law]. Τhe capacity of the third party and the principle of impartiality are not breached by the fact that the judges participating in the composition of the committees may, in the future, participate in the composition of the administrative appellate Court which will be called upon to try the cases of other parties seeking annulment of other acts of these committees. The decisions of the committees, subject of appeals against acts of rejection of applications for international protection at first instance, after thorough examination, by law and in substance and with full and specific reasons, are binding for the parties, since they can not be overturned by means of an appeal, while the procedure before them fulfills the necessary safeguards - and in particular the observance of the right to a fair hearing and, in general, of the rights of the defense – for the assurance of the right of the effective recourse, taking into account the peculiarities of the process, requiring in principle the confidentiality and allow, therefore, restrictions on the publicity of the proceedings. In view of the above, these committees are not courts within the meaning of the Constitution but constitute committees which exercise jurisdictional powers within the meaning of the constitutional provision of Article 89 (2) and, as such, the participation of active judicial officers is permitted by the Constitution (Council of State 3503/2009, Civil Supreme Court – Plenary Session 371/2013). The jurisdictional nature of the powers exercised by them is not invalidated by the fact that: a. Their acts are issued following a quasi jurisdictional recourse; b. Their acts are subject to an application for annulment before the competent administrative courts from the decisions of which derives obligation of compliance; c. There is no provision for the delivery of the committees’ judgements in public hearings but only for their communication to the applicants for international protection; d. It is foreseen that the judicial officers of the committees can be replaced by the same procedure at their request; e. The Administrative Director of the Refugees Authority has certain powers to ensure their proper functioning, but he does not exercise hierarchical control over the independent appeal committees or other power of direct or indirect interference to their work; and f. The competent Minister can exercise his regulatory organizational power given by the law to increase or even reduce the number of committees. 

Role of the Charter and role of the general principles on enforcement

National provisions were examined for their compatibility with Art. 47 CFREU.

• Explicit reference to Art. 47, CFREU (right to an effective remedy and a fair trial)
• Right to access a court
• Right to an effective remedy before a tribunal
• Right to a fair trial
• Right to a public hearing within a reasonable time
• Right to a fair hearing by an independent and impartial tribunal previously established by law.
• Explicit reference to Art. 6 ECHR
• Explicit reference to Art. 13 ECHR

Article 89 (2) of national Constitution.

Elements of judicial dialogue

• Direct dialogue between CJEU/ECtHR and National court (out of preliminary reference procedure)

• C-239/14, Tall
• C-472/13, Shepherd

Conform interpretation.

Additional notes on the decision

The legal framework regarding the procedure of granting and revoking status of international protection cannot be contested in practice before the national courts of first and second instance.