Spain - Spanish Supreme Court (Tribunal Supremo), Cassation Appeal, 23 February 2015 (Appeal No. 2944/2014)
| Country of Decision: | Spain |
| Country of applicant: | Kazakhstan |
| Court name: | Spanish Supreme Court, Administrative Chamber, Section 3 (the “Court”) |
| Date of decision: | 23-02-2015 |
| Citation: | Spanish Supreme Court, Cassation Appeal, 23 February 2015, Appeal Nº 2944/2014 |
Keywords:
| Keywords |
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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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Effective remedy (right to)
Description
A general principle of EU law now set out in Article 47 of the Charter of Fundamental Rights: "Everyone whose rights and freedoms guaranteed by the law of the Union are violated has the right to an effective remedy before a tribunal in compliance with the conditions laid down in this Article.” “[It] is based on Article 13 of the ECHR: ‘Everyone whose rights and freedoms as set forth in this Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.’ However, in Community law the protection is more extensive since it guarantees the right to an effective remedy before a court. The Court of Justice enshrined the principle in its judgment of 15 May 1986 (Case 222/84 Johnston [1986] ECR 1651; see also judgment of 15 October 1987, Case 222/86 Heylens [1987] ECR 4097 and judgment of 3 December 1992, Case C-97/91 Borelli [1992] ECR I-6313. According to the Court, this principle also applies to the Member States when they are implementing Community law. The inclusion of this precedent in the Charter is not intended to change the appeal system laid down by the Treaties, and particularly the rules relating to admissibility. This principle is therefore to be implemented according to the procedures laid down in the Treaties. It applies to the institutions of the Union and of Member States when they are implementing Union law and does so for all rights guaranteed by Union law.” |
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Protection
Description
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. According to Article 2(a) of the Qualification Directive, international protection meansrefugee and subsidiary protection status as defined in (d) and (f). According to Recital 19 of the Qualification Directive “Protection can be provided not only by the State but also by parties or organisations, including international organisations, meeting the conditions of this Directive, which control a region or a larger area within the territory of the State”. According to Annex II of the Asylum Procedures Directive, in the context of safe countries of origin, protection may be provided against persecution or mistreatment by: “(a) the relevant laws and regulations of the country and the manner in which they are applied; (b) observance of the rights and freedoms laid down in the ECHR and/or the International Covenant for Civil and Political Rights and/or the Convention against Torture, in particular the rights from which derogation cannot be made under Article 15(2) of the said European Convention; (c) respect of the non-refoulement principle according to the Geneva Convention; (d) provision for a system of effective remedies against violations of these rights and freedoms. |
Headnote:
The Supreme Court declared that the National High Court erred when annulling the decision of the General Sub-Directorate for Asylum (Ministry of Interior) to reject the Appellant’s request for international protection. The National High Court annulled the decision but did not consider the Appellant’s core claim: the request for international protection.
As the National High Court was in possession of all necessary facts required to decide on the substance of the request by the Appellant for international protection, it should have been able to determine as such. As a result, the Supreme Court upheld the appeal.
Facts:
Mr. Alexander Pavlov (the “Appellant”) appealed the decision of the Administrative Chamber of the Spanish National High Court (“Audiencia Nacional”). In its ruling, the National High Court had annulled the decision of the General Sub-Directorate for Asylum and had rejected the Appellant’s request for international protection, but it did not grant the Appellant’s request for asylum. The National High Court limited itself to ask the Ministry of the Interior to reconsider the Appellant’s request, taking into account its decision.
Decision & reasoning:
The Appellant appealed the decision of the Spanish National High Court arguing that it erred when annulling the decision of the General Sub-Directorate for Asylum because it did not adopt a final decision on the substance of the request for international protection.
The Supreme Court agreed with this argument. The core claim of the Appellant was the granting of asylum. As the National High Court was in possession of all necessary facts to decide on the substance of the request for international protection, it should have done so.
The Supreme Court granted the Appellant’s request for asylum on the basis that:
- the Appellant offered a coherent and credible account of the persecution he suffered, which was supported by a number of documents (including reports from Amnesty International and Human Rights Watch);
- in agreement with previous case law, there was no need for proof regarding the fear of persecution;
- other persons related to the Appellant’s case had been granted asylum in other countries; and
- witnesses provided examples of failures to uphold human rights in Kazakhstan.
It was irrelevant to the case at hand that the Criminal Chamber of the Spanish High Court had already agreed to the passive extradition of the Appellant.
Outcome:
Appeal granted and application accepted.
Observations/comments:
This case summary was written by Linklaters LLP.
This case summary was proof read by Markel Redondo Ibarrondo, Junior Project Officer at ICMPD.
Relevant International and European Legislation:
Cited National Legislation:
Other sources:
Reports by Amnesty International, Human Rights Watch and odfoundation (Diálogo Abierto) with regard to the situation in Kazakhstan.
European Parliament resolution of 18 April 2013 on the human rights situation in Kazakhstan.