Czech Republic - Supreme Administrative Court, 22 May 2009, A.R. v. Ministry of the Interior, 5 Azs 7/2009-98

Facts:

The Applicant, who came from Kazakhstan, stated that police arrested him during common prayer with other members of his religious group, and then he was taken to the police station where he was first punched in the face and then the questioning policeman kicked him in the kidneys. The Applicant feared that he was to be sentenced to many years imprisonment on the basis of a trumped-up trial (based on planted drugs or weapons). According to his statement, this is common practice in Kazakhstan. The main reason why his religious group became a target for the security units was the fact that they refused to comply with the mandatory registration of their religious group, so-called pure Islam, on the basis of their conscience.

The Ministry of the Interior did not grant international protection to the Applicant.

The Regional Court in Hradec Králové dismissed the action against the ruling of the Ministry.

The Applicant filed a cassation complaint with the Supreme Administrative Court against the ruling of the Regional Court.

Decision & reasoning:

The Supreme Administrative Court acknowledged that the Applicant was exposed to brutal physical violence at the police station. He left his country of origin after his brother informed him about possible fabricated criminal accusations that were being prepared against him by the security authorities. The Ministry did not cast doubts on the Applicant’s credibility.

According to the Supreme Administrative Court, the requirement to register religious groups in Kazakhstan cannot be considered as religious discrimination of such intensity as to allow it to be considered as persecution within the meaning of the Act on Asylum as interpreted in accordance with Article 9 of the Qualification Directive.

It is necessary to clearly distinguish between such possible repressive actions on the part of security authorities or other state bodies that represent obvious excesses beyond the sphere of provisions permitted by law and which, at the same time, may either individually or on a cumulative basis together with other provisions target a particular person and reach the intensity of persecution, and the legal requirement to register a religious group and its enforcement using instruments permitted by the law and reasonable means.

The Ministry did not collect sufficient information about the country of origin in order to make it possible to conclude whether this was an isolated police excess or a widespread practice tolerated by governing bodies. The Ministry therefore should focus on verifying these alleged threats in further proceedings. This detailed survey and examination cannot be avoided by merely stating that the Applicant first had the opportunity to seek protection from persecution (or exhaust the available means of protection) in the country of origin. It is necessary to examine instances of persecution by the State (or actors of persecution supported by the State) in a different way from cases of persecution caused merely by non-governmental actors of persecution. In the first case, it is important to carefully examine whether bodies of the aforementioned instances or other providers of protection are able and willing to provide effective protection according to Article 7(2) of the Qualification Directive. If not, it is not possible to request that the Applicant turn to such bodies.

In the case that in the further proceedings the Ministry does not find that any of the facts themselves reach the intensity of persecution according to Article 9(1)(a) of the Qualification Directive, it will be necessary to also examine the Applicant’s application from the point of view of Article 9(1)(b) of the Qualification Directive, i.e. to answer the question whether the concurrence of various measures (physical violence in the police station, warning from the brother that the Applicant was threatened with fabricated accusations of criminal offences, or discrimination in accessing jobs as mentioned by the Applicant) is in total, serious enough to affect the individual in a way similar to the one that is mentioned in Article 9(1)(a) of the Qualification Directive, so called “persecution on a cumulative basis.”

Outcome:

The Supreme Administrative Court set aside the ruling of the Regional Court and returned the case for further proceedings. At the same time it bound the Regional Court to set aside the judgment of the Ministry and return the case for further proceedings.

Observations/comments:

The Supreme Administrative Court examined many cassation complaints of applicants from Kazakhstan practising so-called pure Islam. However, it refused most of these complaints (e.g. rulings of 10 June 2008, file mark 8 Azs 23/2008-75; of 24 April 2008, file mark 7 Azs 12/2008-98) or refused them on the grounds of inadmissibility (e.g. decision of 16 July 2008, file mark 3 Azs 38/2008-117; of 30 June 2008, file mark 4 Azs 24/2008-58, and of 12 September 2008, file mark 5 Azs 74/2008-88: all the judgments cited are accessible at www.nssoud.cz). In this case, however, and in the case decided in the ruling of 30 September 2008, file mark 5 Azs 66/2008-70 the Supreme Administrative Court distinguished those Applicants for international protection from other “common” cases in which applicants usually equated persecution with the mere duty to register the religious group.