Spain - The Supreme Court of Spain (Tribunal Supremo), 23 February 2015, Legal Appeal (Recurso de Casación), Case No. 2944/2014
| Country of Decision: | Spain |
| Country of applicant: | Kazakhstan |
| Court name: | The Supreme Court of Spain, Administrative Division, Third Chamber (the “Supreme Court”) |
| Date of decision: | 23-02-2015 |
| Citation: | The Supreme Court of Spain, Case No. 2944/2014, of 23 February 2015 |
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 held that the National High Court of Spain (Audiencia Nacional) erred in annulling the General Deputy Director of Asylum’s decision to reject the Appellant’s request for international protection because the National High Court of Spain failed to consider the substance of the Appellant’s request for asylum.
Facts:
The Appellant appealed a decision of the Administrative Chamber of the Spanish National High Court (“Audiencia Nacional”) in which the court annulled the General Deputy Director of Asylum’s decision to reject the Appellant’s request for international protection but did not grant the Appellant’s request for asylum. Instead, the National High Court delegated the responsibility to reconsider the Appellant’s request to the Ministry of Internal Affairs. The Appellant decided to appeal the National High Court of Spain’s decision to the Supreme Court.
Decision & reasoning:
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 and submitted various documents, including reports from Amnesty International and Human Rights Watch, in support of his account;
- based on prior Spanish case law, in light of the evidence of persecution the Applicant had suffered, the Applicant did not need to prove a fear of being persecuted ;
- other persons, whose cases were similar to the Appellant’s case, had been granted asylum in other countries; and
- various witnesses provided evidence of Kazakhstan’s failure to uphold human rights.
Moreover, the Court held that the fact that the Criminal Division of the National High Court of Spain had already agreed to the passive extradition of the Appellant was irrelevant.
In light of these considerations, the Supreme Court upheld the Appellant’s case and concluded that the National High Court of Spain should have considered the Appellant’s request for international protection since it was in possession of all the required evidence.
Outcome:
The appeal was upheld and the Appellant’s request for asylum was granted.
Observations/comments:
This case summary was written by Linklaters LLP.
Relevant International and European Legislation:
Cited National Legislation:
Other sources:
The European Parliament Resolution of 18 April 2013 on the human rights situation in Kazakhstan.
Reports by Amnesty International, the Human Rights Watch and odfoundation (Diálogo Abierto) with regards to the situation in Kazakhstan.