Czech Republic – Supreme Administrative Court, 7 September 2012, A.S. v Ministry of Interior, 4 Azs 60/2007-19

Facts:

The applicant was excluded from international protection as there were reasons to believe that he had committed a serious non-political crime. In the Ukraine he was prosecuted for the crime of human trafficking and his extradition to the Ukraine was also requested.

However, the applicant alleged that the he helped the opposition in the Ukraine before the elections and that he supported Yushchenko. The applicant claimed that he and his wife were threatened and told to abandon opposition activities. He also argued that the prosecution was fabricated. He pointed out that the Ukraine violated his procedural rights and also that the women he allegedly trafficked were forced to make statements under pressure from the investigator.

The applicant also claimed that the MOI, and also the Regional Court which dismissed his appeal, did not evaluate if the conditions for granting asylum (protection) were fulfilled and immediately considered the application of the exclusion clause. The applicant sought annulment of the Regional´s Court decision before the Supreme Administrative Court (SAC). As the SAC’s case law on this issue varied, the proceedings were suspended and the matter referred to the extended bench of the SAC.

Decision & reasoning:

The extended bench concluded that a claim for asylum does not have to be investigated prior to findings of grounds for exclusion from protection. Neither the 1951 Refugee Convention nor the Qualification Directive preclude the procedure chosen by the MOI, where if during the proceedings facts come to light justifying exclusion from protection, there is no need to consider whether the person concerned fulfilled also the conditions for granting protection. The Asylum Act, as well as above-mentioned instruments, distinguish between these two principles and allow an assessment of exclusion from protection separately.

The Court also generally noted that exclusion clauses must be interpreted restrictively and must be thoroughly investigated, especially if there really are serious reasons to believe the person has committed the crime. It is also necessary to consider whether the criminal prosecution could actually be politically motivated prosecution.

The SAC also noted that if an exclusion clause is to be applied it is necessary to disclose this fact to the applicant and question him about issues relevant to it.

It was also noted that:

"the current text of the Asylum Act reflects the Refugee Convention, the  Convention on protection of Human Rights and Fundamental Freedoms (ECHR) and also the Qualification Directive.  . . . all these instruments present different layers of protection offered to asylum seekers. Resulting protection offered in the Czech Republic reflects the highest common denominator of protection offered by all four layers. Protection given in one of the layers cannot be taken as a reason for lowering the standard offered by another layer”

Outcome:

The matter was returned to the basic bench of the SAC for decision and the decision of the Regional Court was annulled by the SAC.

Subsequent proceedings:

The SAC concluded that the MOI and the Regional Court did not assess the facts properly.

Observations/comments:

Decision n. 4 Azs 60/2007-19 available at www.nssoud.cz