Czech Republic - Supreme Administrative Court, 11 February 2009, A. R. V Ministry of Interior, 1 Azs 107/2008-78

Facts:

The applicant filed an application for international protection which was dismissed as manifestly unfounded according to Art 16 (2) of the Asylum Act. The Ministry of Interior found that the applicant’s only purpose for submitting the application was to avoid the enforcement of an expulsion decision. The applicant filed an action against this decision in the Regional Court, which was dismissed. Consequently, the applicant filed an appeal to the Supreme Administrative Court.

Decision & reasoning:

The Supreme Administrative Court first of all commented on the differences between “barriers in return” (the previous basis for non-refoulement in the Czech Republic) and subsidiary protection. The Supreme Administrative Court considered the differences between subsidiary protection according to the Qualification Directive to the provision in the Czech Asylum Act. The Court stated that the Asylum Act must be interpreted in compliance with the Qualification Directive.

The Supreme Administrative Court stated that where the Asylum Act considers that one is in danger of serious harm that consists of the death penalty and the enforcement of death penalty, in accordance with Art 15 (a) of the Qualification Directive, serious harm consists not only of the death penalty, but also of execution. The Supreme Administrative Court defined execution as a broader concept than enforcement of the death penalty, because an execution does not have to be based on a formal decision resulting from legal proceedings.

Consequently, the Supreme Administrative Court was dealing with the question of whether the circumstances for granting subsidiary protection are required to be considered when the application is dismissed as manifestly unfounded if it is clear that 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 or her removal and if the applicant has failed without reasonable cause to make his or her application earlier, having had opportunity to do so, if the applicant does not prove the opposite.

According to the Supreme Administrative Court, the fulfillment of the conditions for dismissing an application cannot be found sufficient to release the Ministry of Interior from its obligation to consider whether the applicant could be in danger of serious harm if returned to his or her country of origin. According to Art 28 (2) of the Asylum Act, when the Ministry of Interior does not grant international protection in either of its forms it is obliged to explain the reasons for such decision with regard both forms of international protection.

The Supreme Administrative Court also stated that in order to ensure compliance with the principle of non-refoulement, the Ministry of Interior has to engage in reasonable activity ex officio, while the extent of this activity depends on the nature of the possible serious harm .

Outcome:

The cassation complaint was successful and the decision of the Regional Court was cancelled.

Observations/comments:

Decision of the Supreme Administrative Court No 1 Azs 107/2008-78 available at www.nssoud.cz

The Supreme Administrative Court again referred to the decision of the Court of Justice of the European Union in Elgafaji (C-465/07) and stated that in cases where there is a possibility of serious harm in the form of the death penalty or execution, torture or inhuman or degrading treatment or punishment the applicant must be specifically targeted.

While in cases of serious harm, in the form of serious and individual threat to a civilian's life or person by reason of indiscriminate violence in situations of international or internal armed conflict, this refers to a general danger of serious harm, and does not require the applicant to submit evidence that he or she was specifically targeted, and the existence of such serious harm can be in certain cases considered to be established.