Czech Republic - Supreme Administrative Court, 13 May 2010, A.T. v. Ministry of the Interior, 1 Azs 10/2010-139
| Country of Decision: | Czech Republic |
| Country of applicant: | Turkey |
| Court name: | Supreme Administrative Court |
| Date of decision: | 13-05-2010 |
| Citation: | 1 Azs 10/2010-139 |
Keywords:
| Keywords |
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Country of origin information
Description
"Information used by the Member States authorities to analyse the socio-political situation in countries of origin of applicants for international protection (and, where necessary, in countries through which they have transited) in the assessment, carried out on an individual basis, of an application for international protection.” It includes all relevant facts as they relate to the country of origin at the time of taking a decision on the application, obtained from various sources, including the laws and regulations of the country of origin and the manner in which they are applied, regulations of the country of origin, plus general public sources, such as reports from (inter)national organisations, governmental and non-governmental organisations, media, bi-lateral contacts in countries of origin, embassy reports, etc. This information is also used inter alia for taking decisions on other migration issues, e.g. on return, as well as by researchers. One of the stated aims of the European Asylum Support Office (EASO) is to progressively bring all activities related to practical cooperation on asylum under its roof, to include the collection of Country of Origin Information and a common approach to its use. |
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Persecution Grounds/Reasons
Description
Per Article 1A ofthe1951 Refugee Convention, one element of the refugee definition is that the persecution feared is “for reasons of race, religion, nationality, membership of a particular social group or political opinion“. Member States must take a number of elements into account when assessing the reasons for persecution as per Article 10 of the Qualification Directive. |
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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." |
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Nationality
Description
One of the grounds of persecution specified in the refugee definition per Article 1A ofthe1951 Refugee Convention. Nationality can be defined generally as the legal bond between a person and a State which does not indicate the person's ethnic origin. According to the Qualification Directive, when considered as a reason for persecution, the concept of nationality is not confined to citizenship or lack thereof and, in particular, includes membership of a group determined by its cultural, ethnic, or linguistic identity, common geographical or political origins or its relationship with the population of another State |
Headnote:
The Applicant’s fear that he will be forced to fight against persons of the same nationality as part of the compulsory military service may, regarding a particular country of origin and specific nationality, represent a well-founded fear of persecution relevant to asylum.
Facts:
The Applicant, who came from Turkey, was of Kurdish nationality. He stated that he was in fear of his life and fearful of being subjected to torture and degrading treatment. If he were forced to carry out military service in Turkey, he would be exposed to disproportionate trauma as a member of a national minority, since he would have to act repressively against members of his own nationality. Avoiding military service cannot be construed as avoiding civic duties in democratic countries but rather as a manifestation of the conviction of the Applicant. The Applicant was also a member of the Kurdish politic party DEHAP, later operating as DTP.
The Ministry of the Interior did not grant the Applicant international protection.
The Regional Court in Brno rejected the action against the ruling of the Ministry.
The Applicant filed a cassation complaint with the Supreme Administrative Court against the ruling of the Regional Court.
Decision & reasoning:
The Supreme Administrative Court stated that with regard to reports on the country of origin established on the file, the Ministry must have been aware of the fact that the situation between Turkish troops and Kurdish rebels was critical at that time. The Ministry should have procured sufficient up-to-date reports on Turkey, which should have focused in particular on developments in the Turkish army, especially on the status of Kurdish conscripts in the army or their deployment in the fight against Kurdish rebels.
If the Ministry is aware of significant change in the political or military situation in the Applicant’s country of origin, it cannot be satisfied with information that does not reflect such a change, even if date of such information is as in similar cases and so does not cause it to be out-of-date and thus unusable. This is especially so if, as in the present case, it concerns the position of conscripts in the army and their possible involvement in fighting against Kurdish rebels, where an escalation of the armed conflict between Turkish troops and these rebels may have a significant influence on attitudes within the Turkish army. The Supreme Administrative Court therefore confirmed the Applicant’s complaint that the facts of the matter were not sufficiently established in the proceedings of the administrative body.
The Supreme Administrative Court further stated that in general the opinion of the Ministry is correct insofar as carrying out military service itself does not constitute persecution in the sense of the Act on Asylum and therefore the fear of taking up military service cannot be considered a “well-founded fear of persecution”. However, there were other significant circumstances related to entering military service. If the Applicant stated he was afraid of being forced to fight against people of his own nationality as part of the military service, it is therefore necessary to examine this fear of entering military service in a completely different context. The Applicant’s fear was therefore not due to the military service itself, but in particular due to his duty to fight against the Kurds and the possible consequences of his attitude to such a duty. A circumstance like this may, especially in relation to the nationality of the Applicant and to the situation in the country of origin, indicate that it may be persecution under the Act on Asylum.
Outcome:
The Supreme Administrative Court set aside the judgment of the Regional Court and returned the case for reassessment.
Relevant International and European Legislation:
Cited National Legislation:
| Cited National Legislation |
| Czech Republic - Asylum Act (325/1999 Coll.) - Art 14a |
| Czech Republic - Asylum Act (325/1999 Coll.) - Art 12 |