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If the applicant consents to it, the law provides for the possibility for the competent authorities to refer him or her for a medical and/or psychosocial diagnosis where there are signs or claims which might indicate past persecution or serious harm. These examinations shall be free of charge and shall be conducted by specialised scientific personnel of the respective specialisation and their results shall be submitted to the competent authorities as soon as possible. Otherwise, the applicants concerned must be informed that they can undergo such examinations at their own initiative and expense. The results and reports of these examinations have to be taken into consideration by the Asylum Service, in order for the deciding authorities to establish if the applicant’s allegations of persecution or serious harm are likely to be well-founded”.[1]
Specifically, a contested provision was introduced in 2018, as per which individuals who have been subjected to torture, rape, or other serious acts of violence should be certified as such by a public hospital or by an adequately trained doctor of a public sector health care provider and obtain a certificate so attesting.[2] The provision has been maintained by the IPA[3] and the Asylum Code.[4]
The main critiques against this provision are that doctors in public hospitals and health care providers are not adequately trained to identify possible victims of torture and that the law foresees solely a medical procedure. According to the Istanbul Protocol, a multidisciplinary approach is required – a team of a doctor, a psychologist, and a lawyer – for the identification of victims of torture. Moreover, stakeholders have expressed fears that certificates from entities other than public hospitals and public health care providers would not be admissible in the asylum procedure and judicial review before courts.
According to decision 147/2022 of the First Instance Administrative Court of Thessaloniki in the case of a vulnerable person from Siera Leone whose medical documents issued by public entities and his certification of victim of torture issued by Metadrasi NGO were not taken into consideration neither during first nor during the second instance examination of his asylum application, states the following: “the contested decision which rejected applicant’s claims as unreliable, without taking into consideration the documents presented and without inviting the applicant to a prior hearing, is not legally and sufficiently justified and must be cancelled […]. subsequently, the request for annulment must be accepted, the contested decision must be annulled, and the case must be referred back to the competent Committee, so that the above mentionned […] documents be considered […] and the applicant be invited in person”.[5]
As reported by several civil society organisations,[6]
“certain categories such as victims of torture are systematically not identified as such, where certification does not take place. Certification of victims of torture is impossible in the country in practice, given that public health authorities do not have the processes and capacity in place to carry out certification. The authors have contacted public health institutions on the islands on various occasions to inquire whether they certify victims of torture in accordance with the Istanbul Protocol, victims of rape of other serious form of violence, as well as whether hospital staff are appropriately trained for such a certification and whether the victims are able to receive the necessary care for their rehabilitation.”
According to a report of FENIX – Humanitarian Legal Aid entitled Unrecognised Vulnerability- Greece’s systematic failure to identify and certify Victims of Torture of April 2023: “Despite national law, the certification of VoTs systematically does not occur. Article 67(1) of Law 4939/2022 imposes that only public authorities are competent to provide certification. This is a restriction to Article 25 of the Reception Conditions Directive, which only specifies that the competent authorities have ‘appropriate training’. This is an unnecessary restriction of the competent authorities which provide certification and a violation of Article 4 of the Reception Condition Directive. The restriction creates further barriers to the identification and certification of VoTs, especially considering that no public authority in Greece currently has qualified personnel or is competent for this type of certification of VoTs. […] The gap in the identification and certification of VoT is not only verified on the islands of Lesvos; it is also verified on the mainland, including in Athens. The Forensic Service of Athens and several public hospitals systematically reply to requests submitted by Fenix legal representatives that they cannot proceed with the identification and certification of VoTs according to the Istanbul Protocol due to a lack of specialised training and knowledge […] there is no public authority with qualified professionals willing to assume the required competence to proceed with the certification process of VoTs”.[7]
In Decision 593/2023, the First Instance Administrative Court of Thessaloniki cancelled a second instance asylum decision rejecting the asylum claim of a family from Iraq, among other reasons, because the Asylum Service violated an essential step of the examination of an asylum application. In particular, despite one of the applicants’ claim of being a victim of torture, the Asylum Service neither refered the applicants to the competent authorities for medical examination, nor did the Asylum Service inform the applicant about the possibility to undergo such examination on his own initiative/expense. In particular, the Court stated that: “during his interview the applicant made specific allegations about torture he suffered in the past. However, nothing in the file indicated that he was informed of his possibility to be examined, on his own initiative and at his own expense, by a legally competent medical service, for the examination […] of the existence of symptoms and signs of torture, nor was he competently referred at any stage of the procedure, for relevant consideration. [..] thus […] the decision should be cancelled and referred back to the Administration, in order to comply with the type of the procedure […]”.[8]
[1] Article 53 L 4375/2016, which was later abolished by article 119 (1) of L 4636/2019 and currently in force Article 77 of the Asylum Code.
[2] Immigration.gr, Η πιστοποίηση θυμάτων βασανιστηρίων αποκλειστικό «προνόμιο» του κράτους; May 2018, available in Greek at: https://tinyurl.com/3ne4vn42.
[3] Article 61(1) IPA.
[4] Article 67 Asylum Code.
[5] Decision 147/2022 of 1st Instance Administrative Court of Thessaloniki – case supported by lawyer Athina Kalogridi in ARSIS – Association for the Social Support of Youth, Seeking International Protection: A Case-Law Handbook, 2022-2023, pp. 49-53, available at: https://tinyurl.com/384xn8xm.
[6] RSA, HIAS, GCR, Legal Center Lesvos, DRC, Fenix, ActionAid, Mobile Info Team, The Workings of the Screening Regulation. Juxtaposing proposed EU rules with the Greek reception and identification procedure, January 2021, p. 16, available at: https://bit.ly/3fL8xFF.
[7] FENIX – Humanitarian Legal Aid, Unrecognised Vulnerability- Greece’s systematic failure to identify and certify Victims of Torture, pp. 17-19, available at: https://tinyurl.com/mwpxajcv.
[8] Decision 593/2023 of First Instance Administrative Court of Thessaloniki – case supported by ARSIS lawyer Anthi Argyriou in op. cit., ARSIS – Association for the Social Support of Youth, Seeking International Protection: A Case-Law Handbook, 2022-2023, pp. 91-94.