Hungary - Metropolitan Court of Public Administration and Labour, 8 June 2016, 30.K.31.507/2016/8
Keywords:
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Detention
Description
"Restriction on freedom of movement through confinement that is ordered by an administrative or judicial authority(ies) in order that another procedure may be implemented. In an EU asylum context, this means confinement of an asylum seeker by a Member State within a particular place, where the applicant is deprived of his or her freedom of movement. This may occur during any stage of or throughout the asylum process, from the time an initial application is made up to the point of removal of an unsuccessful asylum seeker. In an EU Return context, Member States may only detain or keep in a detention facility a third-country national who is the subject of return procedures in order to prepare the return and/or carry out the removal process, in particular when: (a) there is a risk of absconding; or (b) the third-country national concerned avoids or hampers the preparation of return or the removal process. Any detention shall be for as short a period as possible and only maintained as long as removal arrangements are in progress and executed with due diligence." |
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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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Relevant Facts
Description
An assessment of an application for international protection must take into account all relevant facts, including those relating to: the country of origin at the time of taking a decision on the application, including laws and regulations of the country of origin and the manner in which they are applied; relevant statements and documentation presented by the applicant; the individual position and personal circumstances of the applicant; and other matters set out in Article 4 of the Qualification Directive |
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Relevant Documentation
Description
“All documentation at the applicants disposal regarding the applicant's age, background, including that of relevant relatives, identity, nationality(ies), country(ies) and place(s) of previous residence, previous asylum applications, travel routes, identity and travel documents and the reasons for applying for international protection.” |
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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:
The Court quashed the decision of the Office of Immigration and Nationality (OIN) and ordered a new procedure because of the failure to thoroughly examine every claim presented by the Claimant and the incorrect application of the res iudicata principle.
Facts:
The Claimant is a Kurdish national, a citizen of Turkey. He had been detained previously on two occasions for deserting the Turkish army and for being a member of the Kurdistan Workers’ Party (PKK). He had also been captured by the Turkish army once and personally threatened.
The present case was the 4th time the Claimant applied for asylum in Hungary. In the relevant previous cases the OIN ruled that he may not be granted any form of international protection but shall not be returned to Turkey because of the inhuman prison conditions (overcrowding, abuses). This decision was challenged at the Court, but the OIN withdrew its decision and started a new procedure, the result of which declared that he could be returned to Turkey because prison conditions are not inhuman after all and the violence in the region of the Claimant does not reach such a level that would suggest that the principle of non-refoulement would be breached.
The Claimant did refer to the persecution he would probably face in Turkey because of his nationality and for having deserted the army, but these claims were excluded from the procedure because they had already been referred to in the previous procedures and were thus considered res iudicata and were not examined again.
Decision & reasoning:
The Court found the appeal to be well-founded.
The Court emphasised that under Article 50 of the Act on the general rules of administrative proceedings and services (Act CXL of 2004) it is the duty of the authority to thoroughly examine the case in question and to find out the relevant facts in order to be able to draw up a correct factual basis for the given claim. Article 72 of the same Act also requires the authorities to provide a well-founded, clear and sound reasoning for the decisions they take where all relevant facts are considered and the way a decision was reached is explained. The Article also requires that reasons shall be provided as to why facts, claims or evidence relating to the case had been excluded from the deliberation procedure.
The Court ruled that the OIN failed to provide a well-founded reasoning as to why it did not properly assess claims based on the nationality of the Claimant or the fact that he deserted the army in the first procedure. Referring to this decision in the procedures that followed as res iudicata is therefore unlawful since these claims were not assessed properly, hence the OIN did not meet its legal obligations.
The Court emphasised that the proximity of the Islamic State to the hometown of the Claimant, the fact that the applicant had been threatened by the army, that his brother is in detention, the situation of the Kurdish population in Turkey and the atrocities they face need to be clearly assessed. When it comes to the previous prison sentences the Claimant had to serve, the Court emphasised that under Article 4 (4) of the recast Qualification Directive, previous persecution may also be the foundation of a well-founded fear.
The Court ordered the OIN to examine all claims of the Claimant and take every piece of relevant information into account. It also ruled that facts shall be deliberated and that decisions shall be duly reasoned.
Outcome:
Appeal granted, decision quashed, new procedure ordered.