Czech Republic - Supreme Administrative Court, 15 May 2013, A.S. v. Ministry of the Interior, Azs 56/2012-81
| Country of Decision: | Czech Republic |
| Country of applicant: | Russia |
| Court name: | Supreme Administrative Court |
| Date of decision: | 15-03-2013 |
| Citation: | Azs 56/2012-81 |
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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Actor of persecution or serious harm
Description
Per Art. 6 QD actors who subject an individual to acts of serious harm (as defined in Art. 15). Actors of persecution or serious harm include: (a) the State; (b) parties or organisations controlling the State or a substantial part of the territory of the State; (c) non-State actors, if it can be demonstrated that the actors mentioned in (a) and (b), including international organisations, are unable or unwilling to provide protection against persecution or serious harm as defined in Article 7. |
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Serious harm
Description
In order to be eligible for subsidiary protection, a third country national or stateless person must demonstrate that if returned to his or her country of origin, or in the case of a stateless person, to his or her country of former habitual residence, s/he would face a real risk of serious harm as defined in QD Art. 15 and that s/he is unable, or owing to such risk, unwilling to avail her/himself of the protection of that country. Per Art.15:"(a) death penalty or execution; or (b) torture or inhuman or degrading treatment or punishment of an applicant in the country of origin; or (c) serious and individual threat to a civilian's life or person by reason of indiscriminate violence in situations of international or internal armed conflict." “Risks to which a population of a country or a section of the population is generally exposed do normally not create in themselves an individual threat which would qualify as serious harm.” |
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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:
Regardless of the parallel extradition proceedings, the Ministry of the Interior is obliged within the proceedings to assess the consequences of prosecution of the Applicant for a criminal offence in the country of origin in the context of fulfilling the conditions for international protection. In case of fear of action by private persons, the possibility and effectiveness of protection provided by the state against such actions is to be assessed.
Facts:
The Applicant, a citizen of the Russian Federation, applied for international protection because of fear of threats and blackmail from another business person and allegedly fabricated prosecutions against him for criminal offences in Russia, for which reason his extradition was sought. The prosecution for a criminal offence was, according to the Applicant, as a result of the fact that he tried to complain about the aforementioned influential entrepreneur and his actions. The Ministry of the Interior did not find reasons for granting either of the forms of international protection and refused the application. The Municipal Court subsequently confirmed this decision, reasoning that it was not possible to assess the nature of prosecution for a criminal offence committed by the Applicant in the country of origin, or the conditions in prisons, as part of the procedure for international protection. These facts are assessed in the extradition procedure. The Applicant filed a cassation complaint with the Supreme Administrative Court appealing the ruling of the Municipal Court.
Decision & reasoning:
The Court first ruled on the parallel proceedings for international protection and the so-called extraditionproceedings. According to the Court, it is primarily the responsibility of the Ministry of the Interior to oversee that the Czech Republic does not breach its obligation of non-refoulement within the context of international protection proceedings. This obligation cannot be renounced in the context of extraditionproceedings. If the two proceedings are concurrent, it is necessary, according to the Court that:
- the procedure for granting international protection and the extraditionproceedings run separately,
- the decision on permitting extradition is not issued before the proceedings on international protection are lawfully completed, and
- the Ministry of the Interior is obliged, despite the ongoing extraditionproceedings, to examine the application for granting international protection not only from the point of view of national law but also from the point of view of international obligations, and in particular with regard to the obligation of non-refoulement.
Both the Ministry of the Interior and the Court were obliged to examine the consequences of the prosecution of the Applicant for a criminal offence in the country of origin. This should happen regardless of the fact that they do not examine whether the Applicant committed the acts in Russia for which his extradition is requested.
The Court also mentioned that if the Applicant claimed his fear of serious harm resulted from the actions of private persons, so-called non-state actors of persecution, it is necessary to examine the effectiveness of protection against such actions by the Russian authorities.
Outcome:
The judgment of the Municipal Court was overturned and the case was returned for further proceedings.
Relevant International and European Legislation:
Cited National Legislation:
Cited Cases:
| Cited Cases |
| Czech Republic - Supreme Administrative Court, 16 September 2008, N.U. v Ministry of Interior, 3 Azs 48/2008-57 |
| Czech Republic - Azs 13/2006-39 (Supreme Administrative Court) |
Other sources:
UNHCR Guidance Note on Extradition and International Refugee Protection, April 2008;
Šturma. P, Azyl vs. extradice pachatelů teroristických činů: malé zamyšlení k jednomu aktuálnímu tématu a klinickému právnímu vzdělávání, Bulletin advokacie, č. 4/2006