Czech Republic - Supreme Administrative Court, 16 September 2008, N.U. v Ministry of Interior, 3 Azs 48/2008-57
| Country of Decision: | Czech Republic |
| Country of applicant: | Kyrgyzstan |
| Court name: | Supreme Administrative Court |
| Date of decision: | 16-09-2008 |
| Citation: | 3 Azs 48/2008-57 |
Keywords:
| Keywords |
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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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Non-state actors/agents of persecution
Description
People or entities responsible for acts or threats of persecution, which are not under the control of the government, and which may give rise to refugee status if they are facilitated, encouraged, or tolerated by the government, or if the government is unable or unwilling to provide effective protection against them. |
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Subsidiary Protection
Description
The protection given to a third-country national or a stateless person who does not qualify as a refugee but in respect of whom substantial grounds have been shown for believing that the person concerned, 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, would face a real risk of suffering serious harm as defined in Article 15 of 2004/83/EC, and to whom Article 17(1) and (2) of 2004/83/EC do not apply, and is unable, or, owing to such risk, unwilling to avail himself or herself of the protection of that country.” “Note: The UK has opted into the Qualification Directive (2004/83/EC) but does not (legally) use the term Subsidiary Protection. It is believed that the inclusion of Humanitarian Protection within the UK Immigration rules fully transposes the Subsidiary Protection provisions of the Qualification Directive into UK law. |
Headnote:
Non-state actors (private individuals) can be actors of persecution in relation to persons entitled to asylum, as well as actors of serious harm in relation to persons entitled to subsidiary protection.
Facts:
The applicant from Kyrgyzstan applied for international protection in the Czech Republic because of domestic violence perpetrated by her husband. She was beaten and mentally maltreated by him for at least five years. The Czech Ministry of Interior (MOI) dismissed the application as manifestly unfounded according to the provision of Art 16(1)(g) of the Asylum Act. The MOI stated that the applicant did not provide grounds upon which it could be concluded a risk of serious harm existed according to the provisions of Art 14(a) of the Asylum Act.
Subsequently the applicant appealed to the Regional Court. The Court dismissed her appeal and confirmed the decision of the administrative body. It also confirmed the MOI finding, that the applicant did not present any relevant grounds in her asylum claim.
The applicant brought a cassation complaint to the Supreme Administrative Court. She argued that her case should be judged according to the provision of Art 14(a) of the Asylum Act, in connection with Art 1(2) of the Constitution, Art 1 of 1951 Refugee Convention and Art 3 of European Convention on Human Rights.
Decision & reasoning:
The Supreme Administrative Court stated that was necessary to interpret the issue of actors of persecution and serious harm. The Court found that the manner in which the Qualification Directive was transposed was inadequate in the way it dealt with the issue of acts carried out by private individuals in relation to actors of persecution and of serious harm.
The Court concluded that private individuals can be actors of persecution according to the provision of Art 12 of the Asylum Act, as well as actors of serious harm according to the provision of Art 14(a) of the Asylum Act.
The Court concluded:
I. It is necessary to interpret the provision of Art 2 (7) of the Asylum Act (in force until the 20th December 2007) in agreement with Art 6 of the Qualification Directive (2004/83/EC). Concerning the nature of actors of persecution or serious harm, the definition contained in this provision will be applied also to persons entitled to supplementary protection. In other words, non-state actors (private individuals) can be actors of persecution in relation to persons entitled to asylum, as well as actors of serious harm in relation to persons entitled to supplementary protection.
The Court also stated, that:
II. The interpretative rule of Art 7.2 of the Qualification Directive (2004/83/EC) will be applied when considering the question of whether there is sufficient protection from serious harm from the state where the applicant is to be returned. According to this rule, it is generally considered that protection is provided if the state, or parties or organisations controlling the state, take reasonable steps to prevent the persecution or serious harm. This should be done, among others, by the establishment of an effective legal system for the detection, prosecution and punishment of acts constituting persecution or serious harm.
The Court held that the applicant would have access to such protection and dismissed the complaint.
Outcome:
The cassation complaint was dismissed.
Observations/comments:
Judgment of The Supreme Administrative Court, No. 3 Azs 48/2008 – 57 available at www.nssoud.cz
Relevant International and European Legislation:
Cited National Legislation:
Cited Cases:
| Cited Cases |
| Czech Republic - 2 Azs 66/2006-52 (Supreme Administrative Court) |