Spain - High National Court, 25 March 2009, 993/2007
| Country of Decision: | Spain |
| Country of applicant: | Russia Russia (Chechnya) , |
| Court name: | High National Court |
| Date of decision: | 25-03-2009 |
| Citation: | 993/2007 |
Keywords:
| Keywords |
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Exclusion from protection
Description
Exclusion from being a refugee on any of the grounds set out in Article 12 of the Qualification Directive or exclusion from being eligible for subsidiary protection on any of the grounds set out in Article 17 of the Qualification Directive. |
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Humanitarian considerations
Description
“Factors relevant to the consideration of a decision to grant humanitarian protection. Humanitarian protection is 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. Protection involves creating an environment conducive to respect for human beings, preventing and/or alleviating the immediate effects of a specific pattern of abuse, and restoring dignified conditions of life through reparation, restitution and rehabilitation.” The grant of permission tothird country nationals or stateless persons toremain in Member States for reasons not due to a need for international protection but on a discretionary basis on compassionate or humanitarian groundsis not currently harmonised at a European level. However per Art. 15 Dublin II Reg., even where it is not responsible under the criteria set out in the Regulatiosn, aMember Statemay bring together family members, as well as other dependent relatives, on humanitarian grounds based in particular on family or cultural considerations. |
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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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Non-refoulement
Description
A core principle of international Refugee Law that prohibits States from returning refugees in any manner whatsoever to countries or territories in which their lives or freedom may be threatened. Note: The principle of non-refoulement is a part of customary international law and is therefore binding on all States, whether or not they are parties to the Geneva Convention. |
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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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Terrorism
Description
Any act intended to cause death or serious bodily injury to a civilian, or to any other person not taking an active part in the hostilities in a situation of armed conflict, when the purpose of such act, by its nature and context, is to intimidate a population, or to compel a government or an international organization to do or abstain from doing an act. |
Headnote:
The applicant lodged an appeal before the High National Court against the decision of the Ministry of Interior to refuse granting refugee status. The refusal was based on the application of an exclusion clause due to the applicant’s alleged membership of a terrorist group and for having committed serious crimes.
It was discussed whether this exclusion clause had been applied lawfully and also if, alternatively, the applicant could be authorised to stay in Spain for humanitarian reasons since, if he was expulsed, there was a risk of suffering inhuman or degrading treatment
Facts:
The applicant submitted the asylum application in Spain on the 3rd of June 2005 alleging the following facts:
He is from Chechnya and lived in Grozny with his wife and children from where he moved to Ingushetia when, in 1999, the second war between Chechnya and Russia broke out; on the night of the 21st October 2004 a terrorist group invaded Ingushetia and killed 57 people; he was detained by Russian authorities as he was suspected of belonging to the terrorist group and was tortured for three days; he was released in September; in May he became aware that a university student accused him of being a member of the terrorist group who attacked Ingushetia in October 2004; after becoming aware of the accusation he escaped and arrived in Barcelona some days later.
The application was refused by the Ministry of Interior ruling that the applicant fell under the scope of Art 1F(b) of 1951 Refugee Convention since there were serious reasons for considering that he had committed serious crimes and belonged of a terrorist group. Moreover, there was an extradition request from the Russia Federation founded on an accusation of terrorism.
Decision & reasoning:
The applicant lodged an appeal before the High National Court and presented, among other documents, the declaration of the student withdrawing his accusations and also a report from UNHCR containing requests from different human rights’ organisations asking for the extradition of the applicant not to be carried out on the basis that if he was prosecuted in Russia, a criminal investigation respecting all the procedural guarantees was not guaranteed.
The High National Court declared that considering the reasoning of the Criminal Chamber of the High National Court which ruled that it was lawful to carry out the extradition of the applicant to the Russian Federation, – there were well founded reasons for the applicant come under the scope of Art 1F(b) of 1951 Refugee Convention. The Court added that it was not competent to decide whether the applicant was or wasn’t guilty of the accusations made by the Russian Federation.
Concerning the possibility of authorising the applicant to stay in Spain for humanitarian reasons, the Court had to assess if the decision complied with the principle of non-refoulement and Art 3 of ECHR. Thus, it had to be examined if the extradition of the applicant entailed a risk of suffering inhuman or degrading treatment.
The Court, analysing the documents presented, stated that the Russian authorities had agreed to respect the guarantees requested by the Spanish judicial authorities, assuring the applicant’s fundamental rights (the so-called “Diplomatic guarantees”): there were no well-founded reasons to have doubts regarding the Russian authorities’ commitment. Therefore, there were no well- founded reasons to believe that the applicant would suffer inhuman or degrading treatment.
Outcome:
The appeal was not successful. Neither in its principal request for refugee status, nor in its subsidiary request authorising the applicant to stay in Spain for humanitarian reasons. The extradition to the Russian Federation was ordered.
Relevant International and European Legislation:
Cited National Legislation:
| Cited National Legislation |
| UNCAT |
| Spain - Constitution - Art 15 |
Cited Cases:
| Cited Cases |
| ECtHR - Müslim v Turkey (Application no. 53566/99) |
| ECtHR - Sultani v France (Application no. 45223/05) - (UP) |
Other sources:
Section 13: European Union, Joint Position Defined by the Council on the basis of Article K.3 of the Treaty on European Union on the Harmonized Application of the Definition of the Term "Refugee" in Article 1 of the Geneva Convention of 28 July 1951 Relating to the Status of Refugees (Annex 1), 4 March 1996, 96/196/JHA