i. THE FACTS
The applicant, citizen of Lebanon, was granted with her husband and her three children, the status of refugee, by the decision of the General Secretary of the Ministry of Public Order on 24-10-1995, according to the provisions of the article 1 of the Geneva Convention and the Protocol of New York of 1967. After that, she gave birth to two more children and applied to the Greek Authorities for benefits, as a mother of five children, under the Greek law. This claim was rejected by the 24-1-2005 decision of the Director of Family Benefits of the Organization of Agricultural Insurances (Greek Authority that pays the family benefits to families, having at least 4 children, as a State Agent, according to the Greek law), on the grounds that she did not have Greek or E.U. citizenship and she was not a refugee of Greek origin. An objection to this decision was also rejected by the 18-3-2005 decision of the Adjudicative Comission of the same Agency, on the same grounds. The applicant filed an appeal against this decision in front of the Council of State (Supreme Administrative Court), claiming that she had the right to the family benefit, according to the article 23 of the Geneva Convention.
ii. THE LAW
1. The European Convention of Human Rights.
The article 8 par. 1 of the ECHR, having been ratified by the Greek Legislative Ordinance 53/1974, stipulates that “Everyone has the right to respect for his private and family life, his home and his correspondence”. The article 14 of the ECHR stipulates that “The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status”. The article 1 of the Protocol to the Convetion for the Protection of Human Rights and Fundamental Freedoms, Paris, 20.III.1952 (“First Additional Protocol”) stipulates that “Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law. The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties”.
2. The Geneva Convention on the Status of Refugees.
The article 23 of the Geneva Convention for the protection of Refugees, having been ratified by the Greek Legislative Ordinance 3989/1959 stipulates that “The Contracting States shall accord to refugees lawfully staying in their territory the same treatment with respect to public relief and assistance as is accorded to their nationals”.
3. The Greek Constitution.
The article 21 of the Greek Constitution stipulates that “The family, being the cornerstone of the preservation and the advancement of the Nation, as well as marriage, motherhood and childhood, shall be under the protection of the State. 2. Families with many children,…are entitled to the special care of the State. 3…4…5. The planning and application of a demographic policy, as well as the taking of all necessary measures, shall be an obligation of the State. 6…”. The Article 28 of the Greek Constitution stipulates that “1. The generally recognized rules of international law, as well as international conventions as of the time they are ratified by statute and become operative according to their respective conditions, shall be an integral part of domestic Greek law and shall prevail over any contrary provision of the law. The rules of international law and of international conventions shall be applicable to aliens only under the condition of reciprocity”.
4. The domestic legislation.
According to the article 1 of the Act 1910/1944 families with many children are the ones having at least four living, out of a legal marriage, or legally recognized by their parents. According to the article 63 of the Act 1892/1990, a mother that have at least four children, according to the provisions of the Act 1910/1944 is entitled to receive monthly benefit by the State for every unmarried child before its 23 years of age and after that, she is entitled to a monthly pension for life. With a joint decision of the Ministers of National Economy, Finance, Health and Social Securities, it was regulated that the beneficiaries of the above social benefits are: i) the mother of the four children, under the condition that those children have the Greek citizenship. ii) in case of a child out of a legal wedding the mother that is herself a Greek citizen or been of Greek origin. In addition, according to the Act 2163/1993 the life pension should be granted also to the mothers having the refugee status, being of Greek origin, living permanently in Greece and having or having had at least four living children of Greek citizenship. According to the Act 2459/1997 (Art. 39 sec. 5) as beneficiaries of the above social benefits shall be recognized the citizens of all the E.U. States, in accordance with the same provisions applied to the Greek citizens.
iii. QUESTIONS IN FRONT OF THE GREEK COUNCIL OF STATE.
1. Does the provision of the art. 21 of the Greek Constitution about families with many children apply also to the families of foreigners (non E.U. citizens) that live in Greece?
2. The establishment of the greek citizenship as a condition of receiving the above family benefits, according to the above detailed provisions, is in contradiction to the Greek Constitution?
Does the Geneva Convention on Refugees impose to the Greek State the
obligation to grant the above family benefits to the mother that, having the status of refugee, is living legally in Greece?
Taking under consideration that the above benefit is not of a reciprocal character, does the Greek citizenship requirement contradict the above article 8 or 14 of the ECHR?