The European Court of Human Rights (ECtHR) has found that Greece’s failure to decide on an asylum application for over 12 years violated Article 8 of the European Convention on Human Rights (ECHR), which guarantees the right to private and family life. The decision marks the first time that the ECtHR has found that a State’s lack of action in respect of an asylum application violates Article 8.
The applicant, named as B.A.C., a Turkish national, was arrested in Turkey in 2000 for offences against the constitutional order as a result of his pro-Communist and pro-Kurdish activism. He was detained in solitary confinement, then went on hunger strike for 171 days resulting in his release, and his departure for Greece. B.A.C’s asylum request was lodged in Greece in 2002 – it was subsequently rejected, which he appealed. Greece’s Consultative Asylum Committee issued a favourable opinion in 2003; under Greek law, the Minister for Public Order has 90 days after the courts’ adoption of this opinion to decide on the asylum application, but no decision had been made by March 2015. In 2013, a Greek Court of Appeal rejected an extradition request by Turkey, by reason of anticipated maltreatment of B.A.C due to his political opinions and the vagueness of the offences included in the application.
Between 2003 and 2015, B.A.C. lived in Athens under a ‘tolerated’ legal status pending examination of his asylum application. He had no access to vocational training or certain professions, and he was unable to open a bank account, get a driving licence or request family reunification.
The ECtHR held that B.A.C.’s “precarious and uncertain situation”, brought about by an unjustified and lengthy lack of action on the part of the Greek authorities represented a violation of Article 8 of the Convention. The Court acknowledged that as a principle of international law, States have the right to regulate the entry and removal of non-nationals. However, the judgment also emphasised that States are under positive obligations in respect of non-nationals, including an obligation to promptly examine asylum applications so as to prevent situations which prevent the exercise of the ECHR right to private and family life. It was therefore found that States are obliged to establish effective procedures to protect this right, including examining asylum requests within a short time so as to keep legally uncertain situations, like that of B.A.C., to a minimum.
The ECtHR also found that there would have been breaches of Article 3, which prohibits cruel and degrading treatment, and Article 13, providing for an effective remedy for ECHR violations through domestic authorities, if the applicant was returned to Turkey without a prospective, or ex nunc, assessment of his personal circumstances. The Court found that evidence of the applicant’s previous ill-treatment in Turkey and his uncertain legal status put him at risk of immediate removal to Turkey.
Click here for the full judgment in B.A.C. v Greece (in French only).