Czech Republic - Regional Court of Prague, 29 December 2009, S.R.J v Ministry of Interior, 47 Az 17/2009-52
| Country of Decision: | Czech Republic |
| Country of applicant: | Sri Lanka |
| Court name: | Regional Court Prague |
| Date of decision: | 29-12-2009 |
| Citation: | 47 Az 17/2009-52 |
Keywords:
| Keywords |
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Accelerated procedure
Description
Prioritisation or acceleration of any examination in accordance with the basic principles and guarantees of Chapter II of the Asylum Procedures Directive, including where the application is likely to be well-founded or where the applicant has special needs or for any of the reasons in Article 23(4) of the Asylum Procedures Directive |
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Assessment of facts and circumstances
Description
The duty of the state to carry out an individual assessment of all relevant elements of the asylum application according to the provisions of Article 4 of the Qualification Directive, including considering past persecution and credibility; and the duty of the applicant to submit as soon as possible all statements and documentation necessary to substantiate the application. |
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Inhuman or degrading treatment or punishment
Description
A form of serious harm for the purposes of the granting of subsidiary protection. The Trial Chamber of the International Criminal Tribunal for the Former Yugoslavia in Celibici defined cruel or inhuman treatment as ‘an intentional act or omission, that is an act which, judged objectively, is deliberate and not accidental, that causes serious mental or physical suffering or injury or constitutes a serious attack on human dignity.’ “Ill-treatment means all forms of cruel, inhuman or degrading treatment or punishment, including corporal punishment, which deprives the individual of its physical and mental integrity." |
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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. |
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Persecution (acts of)
Description
"Human rights abuses or other serious harm, often, but not always, with a systematic or repetitive element. Per Article 9 of the Qualification Directive, acts of persecution for the purposes of refugee status must: (a) be acts sufficiently serious by their nature or repetition as to constitute a severe violation of basic human rights, in particular the rights from which derogation cannot be made under Article 15(2) of the ECHR; or (b) be an accumulation of various measures, including violations of human rights which is sufficiently severe as to affect an individual in a similar manner as mentioned in (a). This may, inter alia, take the form of: acts of physical or mental violence, including acts of sexual violence; legal, administrative, police and/or judicial measures which are in themselves discriminatory or which are implemented in a discriminatory manner; prosecution or punishment, which is disproportionate or discriminatory; denial of judicial redress resulting in a disproportionate or discriminatory punishment; prosecution or punishment for refusal to perform military service in a conflict, where performing military service would include crimes or acts falling under the exclusion clauses in Article 12(2). " |
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Torture
Description
“Any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him/her or a third person information or a confession, punishing him/her for an act s/he or a third person has committed or is suspected of having committed, or intimidating or coercing him/her or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions.” |
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Well-founded fear
Description
One of the central elements of the refugee definition under Article 1A ofthe1951 Refugee Convention is a “well-founded fear of persecution”: "Since fear is subjective, the definition involves a subjective element in the person applying for recognition as a refugee. Determination of refugee status will therefore primarily require an evaluation of the applicant's statements rather than a judgement on the situation prevailing in his country of origin. To the element of fear--a state of mind and a subjective condition--is added the qualification ‘well-founded’. This implies that it is not only the frame of mind of the person concerned that determines his refugee status, but that this frame of mind must be supported by an objective situation. The term ‘well-founded fear’ therefore contains a subjective and an objective element, and in determining whether well-founded fear exists, both elements must be taken into consideration." |
Headnote:
If an applicant raises circumstances that could present a potential breach of Art 3 ECHR it is impossible to reject the application as manifestly unfounded. The case must be considered on its merits and the deciding authority needs to have accurate COI.
Facts:
The applicant applied for asylum in the Czech Republic in 2009 at the airport. He stated that he had been endangered by the long running conflict in Sri Lanka. He claimed that one night, he and his employee were shot at. In addition unidentified persons came to his home to harass him and his family. The Ministry of Interior (MOI) rejected his claim as manifestly unfounded because the applicant had not provided any reasons to establish a claim for international protection. With regard to the armed conflict, the MOI concluded that according to reports, the conflict was taking place only in one part of the country and the applicant could relocate. The applicant filed an action before to the Regional Court in Prague.
Decision & reasoning:
If the applicant comes from a country that cannot be considered as a safe country of origin and he claims facts indicating severe (life threatening) circumstances, then it is impossible to process the application in an accelerated procedure and reject it as unfounded. It must be assessed on its merits. For such an assessment the deciding authority must have proper information on the country of origin. UK Border Agency information on human rights cannot be regarded as such, and cannot be taken as a guide on how to decide an application; it can only serve as an information source on the situation in the country of origin and it should not be the only source of information. For the assessment of subsidiary protection in 2009 it is not sufficient to have information from 2007.
Outcome:
The appeal was successful and decision of the MOI was dismissed.
Relevant International and European Legislation:
Cited National Legislation:
| Cited National Legislation |
| Czech Republic - Code of Administrative Procedure (500/2004 Coll.) |
| Czech Republic - Asylum Act (325/1999 Coll.) |
Cited Cases:
| Cited Cases |
| Czech Republic - 5 Azs 18/2008 (The Supreme Administrative Court) |