Slovakia - Supreme Court of the Slovak Republic, 12 February 2013, A.B. v Ministry of Interior of the Slovak Republic, 1Sža/2/2013
Keywords:
| Keywords |
|
Humanitarian considerations
Description
“Factors relevant to the consideration of a decision to grant humanitarian protection. Humanitarian protection is a concept that encompasses all activities aimed at obtaining full respect for the rights of the individual in accordance with the letter and spirit of human rights, refugee and international humanitarian law. Protection involves creating an environment conducive to respect for human beings, preventing and/or alleviating the immediate effects of a specific pattern of abuse, and restoring dignified conditions of life through reparation, restitution and rehabilitation.” The grant of permission tothird country nationals or stateless persons toremain in Member States for reasons not due to a need for international protection but on a discretionary basis on compassionate or humanitarian groundsis not currently harmonised at a European level. However per Art. 15 Dublin II Reg., even where it is not responsible under the criteria set out in the Regulatiosn, aMember Statemay bring together family members, as well as other dependent relatives, on humanitarian grounds based in particular on family or cultural considerations. |
|
Manifestly unfounded application
Description
Member States may consider an application for protection as manifestly unfounded, where it is defined as such in the national legislation, and: (a) the applicant clearly does not qualify as a refugee or for refugee status in a Member State under Directive 2004/83/EC; or (b) in cases of unfounded applications for asylum where any of these circumstances apply: - the applicant, in submitting his/her application and presenting the facts, has only raised issues that are not relevant or of minimal relevance to the examination of whether he/she qualifies as a refugee by virtue of Directive 2004/83/EC; or - the application is considered to be unfounded because the applicant is from a safe country of origin within the meaning of Articles 29, 30 and 31, or - the application is considered to be unfounded because the country which is not a Member State, is considered to be a safe third country for the applicant, without prejudice to Article 28(1);or - the applicant has misled the authorities by presenting false information or documents or by withholding relevant information or documents with respect to his/her identity and/or nationality that could have had a negative impact on the decision; or - the applicant has filed another application for asylum stating other personal data; or - the applicant has not produced information establishing with a reasonable degree of certainty his/her identity or nationality, or it is likely that, in bad faith, he/she has destroyed or disposed of an identity or travel document that would have helped establish his/her identity or nationality; or - the applicant has made inconsistent, contradictory, improbable or insufficient representations which make his/her claim clearly unconvincing in relation to his/her having been the object of persecution referred to in Directive 2004/83/EC; or - the applicant has submitted a subsequent application which does not raise any relevant new elements with respect to his/her particular circumstances or to the situation in his/her country of origin; or - the applicant has failed without reasonable cause to make his/her application earlier, having had opportunity to do so; or - the applicant is making an application merely in order to delay or frustrate the enforcement of an earlier or imminent decision which would result in his/her removal; or - the applicant has failed without good reason to comply with obligations referred to in Article 4(1) and (2) of Directive 2004/83/EC or in Articles 11(2)(a) and (b) and 20(1)of this Directive; or - the applicant entered the territory of the Member State unlawfully or prolonged his/her stay unlawfully and, without good reason, has either not presented himself/herself to the authorities and/or filed an application for asylum as soon as possible, given the circumstances of his/her entry; or - the applicant is a danger to the national security or public order of the Member State, or the applicant has been forcibly expelled for serious reasons of public security and public order under national law; or - the applicant refuses to comply with an obligation to have his/her fingerprints taken in accordance with relevant Community and/or national legislation; or - the application was made by an unmarried minor to whom Article 6(4)(c) applies, after the application of the parents or parent responsible for the minor has been rejected and no relevant new elements were raised with respect to his/her particular circumstances or to the situation in his/her country of origin. In line with UNHCR Executive Committee Conclusion No. 30 (XXXIV) of 1983, cases that are “clearly abusive” (i.e. clearly fraudulent), or “manifestly unfounded”, (i.e. not related to the grounds for granting international protection), may be considered for accelerated procedures. Similarly appeal or review procedures may also be more simplified than those generally available in the case of other rejected asylum applications. |
|
Medical Reports/Medico-legal Reports
Description
“Expert medical report used as evidence relevant to the application for international protection. Where psychological elements are relevant, the medical report should provide information on the nature and degree of mental illness and should assess the applicant's ability to fulfil the requirements normally expected of an applicant in presenting his case. The conclusions of the medical report will determine the examiner's further approach.” |
|
Obligation/Duty to cooperate
Description
Obligations imposed byMember States upon applicants for asylum to cooperate with the competent authorities insofar as these obligations are necessary for the processing of the application. These may include obligations to: (a) report to the competent authorities or to appear before them in person; (b) to hand over documents in their possession relevant to the examination of the application, such as their passports; (c) to inform the competent authorities of their current place address; (d) to be personally searched and the items he/she carries with him/her; (e) to have ones photograph taken; and (f) to have ones oral statements recorded provided. Alternatively the duty of the decision-maker to cooperate with the applicant in carrying out its assessment of facts and circumstances |
|
Personal interview
Description
"The process of questioning or talking with a person in order to obtain information or determine the personal qualities of the person. An interview is a common step in the adjudication of an application for refugee or other immigration status.” An applicant for asylum must be given the opportunity of a personal interview subject to the provisions of the Asylum Procedures Directive: - A personal interview must normally take place without the presence of family members unless considered necessary for an appropriate examination. - It must be conducted under conditions which allow applicants to present the grounds for their applications in a comprehensive manner and which ensure appropriate confidentiality. - the person who conducts the interview must be sufficiently competent to take account of the personal or general circumstances surrounding the application, including the applicant’s cultural origin or vulnerability, insofar as it is possible to do so - interpreters must be able to ensure appropriate communication between the applicant and the person who conducts the interview but it need not necessarily take place in the language preferred by the applicant if there is another language which he/she may reasonably be supposed to understand and in which he/she is able to communicate. - Member States may provide for rules concerning the presence of third parties at a personal interview. - a written report must be made of every personal interview, containing at least the essential information regarding the application as presented by the applicant - applicants must have timely access to the report of the personal interview and in any case as soon as necessary for allowing an appeal to be prepared and lodged in due time." |
Facts:
The applicant, a national of the People’s Democratic Republic of Algeria, has repeatedly requested international protection on the territory of the Slovak Republic. Prior to submitting the applications for international protection, the applicant was twice admitted to a psychiatric hospital. During previous asylum procedures, the applicant stated that his mother tongue was Berber, and that he spoke Arabic and French. Interviews with the applicant were conducted in Arabic. He was summoned for an interview in order to substantiate his next application for international protection, but he twice refused to speak, on the grounds that he did not understand the Arabic interpreter, and he requested a Berber interpreter. An outpatient doctor (an intern) has stated in writing that the applicant is well and is capable of participating in an interview. He was informed, in Arabic, of his rights and obligations, as well as the possible consequences of refusing to cooperate. In view of these facts, the Ministry of Interior – Migration Office issued a decision in which it dismissed the application as manifestly unfounded.
The applicant filed an appeal with the Regional Court against the above decision through a legal representative. The Regional Court upheld the contested decision of the administrative authority as correct and lawful, on the grounds that the applicant was informed of his rights and obligations and was summoned to the interviews duly and in accordance with the law, both of these procedural steps being taken by the administrative authority in Arabic, which the applicant understood, and because the interpreting for the interviews and their actual termination was conducted in a lawful manner, but specifically because the applicant refused to cooperate with the administrative authority, without giving a reason.
The applicant then appealed, through a legal representative, to the Supreme Court of the Slovak Republic.
Decision & reasoning:
The Supreme Court of the Slovak Republic reversed the decision of the Regional Court, setting aside the decision of the Ministry of Interior – Migration Office, and referring the case back to the Migration Office.
The Supreme Court of the Slovak Republic stated in its decision that the primary task when assessing an application for international protection was to decide whether to grant protection, and without the statement of the applicant it was not possible to assess the relevance of the application. The statement of the applicant cannot be replaced by other evidence, and the applicant therefore has an obligation to cooperate with the administrative authority. If, however, the administrative authority determines that the applicant is failing to cooperate merely on the grounds that the applicant has refused to speak, without examining the reasons for such behaviour, its resulting rejection of the application as manifestly unfounded is premature. Moreover, the administrative authority knew that the applicant was admitted to a psychiatric hospital in P. and in M. The applicant also stated in the appeal that he suffered from mental disorders, and he presented the court with a release report from the Psychiatric Hospital of M together with the appeal. The Regional Court failed to adopt any opinion in respect of this evidence. In addition, the Supreme Court of the Slovak Republic did not agree with the Regional Court’s conclusion, and stated that the applicant’s mental state should be assessed by a specialist – a psychiatrist and not an intern such as the outpatient doctor. With regard to the matter of assessing the applicant’s refusal to make a statement and the objection that he was unable to understand the interpreter, the Supreme Court of the Slovak Republic also concluded that the administrative authority should have requested a report on the applicant’s mental state, as it knew that the applicant had been treated in a psychiatric hospital and suffered from mental health problems. In addition, the Supreme Court of the Slovak Republic imposed an obligation on the administrative authority to consider the possibility of granting asylum on humanitarian grounds in future proceedings.
Outcome:
Appeal upheld
The Supreme Court of the Slovak Republic reversed the decision of the Regional Court and referred the decision of the Ministry of Interior – Migration Office back to that authority.
Observations/comments:
Senát zložený z predsedu senátu JUDr. Igor Belko a z členov Ing. JUDr. Miroslav Gavalec a JUDr. Elena Berthotyová PhD.