Hungary - Administrative and Labour Court of Pécs, 25 February 2017, 8.K.27.195/2016/22
Keywords:
| Keywords |
|
Effective access to procedures
Description
Effective access to legal and administrative procedures undertaken by UNHCR and/or States in accordance with the Asylum Procedures Directive to determine whether an individual should be recognized as a refugee in accordance with national and international law. |
|
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.” |
Headnote:
The Court quashed the decision of the Office of Immigration and Nationality (OIN). The OIN based its decision on classified information obtained from the Constitutional Protection Office (CPO), which stated that the Applicant poses a threat to Hungary’s national security, and that he shall not be granted protection, with due regard to Article 1 f) c) of the Geneva Convention. The OIN failed to communicate the CPO’s opinion to the Applicant for nine months. The Court assessed that the proceedings were ‘exceptionally unlawful’.
Facts:
The Applicant was an entrepreneur in Russia and a member of an opposition liberal right wing party which opposes Russia’s current Head of State, Vladimir Putin. The Applicant reported a public interior affairs servant to the police, but when the procedure started, charges were brought against the Applicant himself. From 2008 onwards, several proceedings were initiated against him. He fled to the Czech Republic but was deported to Russia, despite the fact that his asylum case was still pending. The Czech Constitutional Court later found this act to be in violation of the Constitution of the Czech Republic.
Before his stay in the Czech Republic, the Applicant was in prison in Austria, where an inmate attacked him and stabbed his neck.
Having been brought back to Russia, the Applicant was given bail during the procedure. Making use of this possibility, he fled Russia and entered Hungary through the Ukraine on 9 December 2013 and applied for asylum on the same day.
The OIN rejected his claim on 15 August 2014 and ordered his return, which was overturned by the Court, which ordered the OIN to conduct a new procedure.
In the new procedure, the OIN again rejected the application based on the opinion of the CPO, which held that the Applicant posed a threat to national security and that Article 1. f) c) of the Geneva Convention was applicable. The OIN noted that the right to fair trial was guaranteed in Russia and even if the Applicant would be convicted, the sentence would not reach a threshold which could be labelled persecution. The Applicant challenged the decision.
Decision & reasoning:
The Court noted that the OIN collected relevant country of origin information on the persecution of those who oppose the Russian Government. The information included that even those distributing flyers could be jailed. The information demonstrates the serious procedural flaws of the Russian judicial system, which means that the right to fair trial is not respected. The Court noted that even though all this information was found by the OIN, its findings were in stark contrast with the information cited.
The Court noted that when assessing persecution for political opinion, it is not correct to reject a claim based on the presumption that a sentence issued against the applicant would not be serious enough to be considered persecution. The fact that proceedings were initiated against somebody for his political opinion is, in itself, already persecution.
The Court went on to say that as it can be seen in the case of several Russian opposition politicians (such as the murder of Boris Nemtsov), that many times it is not ‘just’ the personal liberty but the life of opposition politicians which may be at risk. These clearly indicate that the fear from persecution is well-founded. This means that when arguing against the well-foundedness of this fear, the OIN has to be absolutely certain that no harm will come to the Applicant in case of his return. This could not be deduced from the current case. The Court notes that this certainty needs to rely on facts and proof, not on presumptions the asylum authority makes based on the information obtained.
Assessing the opinion of the CPO, the Court noted that there were several flaws which tainted the procedure. The OIN obtained the opinion in September 2015 but only revealed it to the Applicant in June 2016. The opinion was kept from the Applicant, who could not know its contents. This was in breach of Article XXVIII (7) of the Fundamental Law of Hungary (Constitution) which guarantees the right to effective remedy.
Commenting on the evaluation of the opinion of the CPO by the OIN, the Court noted that it was exceptionally irrational, just as the opinion itself. The OIN did not assess the fact that in the first procedure the CPO did not signal that the Applicant would be a threat to national security. The CPO’s opinion itself was also irrational since its contents were in contrast with the Office declaring the Applicant to be a threat to national security.
The Court noted that the above-listed errors were so serious in themselves that they would have individually indicated that the decision should have been quashed. Commenting on the request of the Applicant’s legal representative, the Court noted that under the Asylum Act, it had no power to change the decision but only to quash it – even though the procedure started before the Asylum Act was amended this way.
The Court closed the decision with noting that it is obvious that the Applicant’s fear from persecution is well-founded and that this is reinforced by the country of origin information as well. The Court also noted that international protection cannot be deprived from the Applicant.
Outcome:
Appeal granted, decision quashed, new procedure ordered.
Relevant International and European Legislation:
Cited National Legislation:
| Cited National Legislation |
| Hungary - Section 6 (2) of Law LXXX of 2007 on Asylum |
| Article XXVIII of the Fundamental Law of Hungary |