Czech Republic - Supreme Administrative Court, 20 June 2007, R.K. v Ministry of Interior, 6 Azs 142/2006–58
| Country of Decision: | Czech Republic |
| Country of applicant: | Russia Russia (Chechnya) , |
| Court name: | The Supreme Administrative Court |
| Date of decision: | 20-06-2007 |
| Citation: | n.6 Azs 142/2006–58 |
| Additional citation: | N.10/2007 of The Law Reports and Opinions Collection of the Supreme Administrative Court |
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. |
|
Burden of proof
Description
"In the migration context, a non-national seeking entry into a foreign State must prove that he or she is entitled to enter and is not inadmissible under the laws of that State. In refugee status procedures, where an applicant must establish his or her case, i.e. show on the evidence that he or she has well-founded fear of persecution. Note: A broader definition may be found in the Oxford Dictionary of Law." |
|
Crime against humanity
Description
"Any of the following acts when committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack: (a) Murder; (b) Extermination; (c) Enslavement; (d) Deportation or forcible transfer of population; (e) Imprisonment or other severe deprivation of physical liberty in violation of fundamental rules of international law; (f) Torture; (g) Rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization, or any other form of sexual violence of comparable gravity; (h) Persecution against any identifiable group or collectivity on political, racial, national, ethnic, cultural, religious, gender as defined in paragraph 3, or other grounds that are universally recognized as impermissible under international law, in connection with any act referred to in this paragraph or any crime within the jurisdiction of the Court; (i) Enforced disappearance of persons; (j) The crime of apartheid; (k) Other inhumane acts of a similar character intentionally causing great suffering, or serious injury to body or to mental or physical health." |
|
Exclusion from protection
Description
Exclusion from being a refugee on any of the grounds set out in Article 12 of the Qualification Directive or exclusion from being eligible for subsidiary protection on any of the grounds set out in Article 17 of the Qualification Directive. |
|
Procedural guarantees
Description
“In the interests of a correct recognition of those persons in need of protection … every applicant should, subject to certain exceptions, have an effective access to procedures, the opportunity to cooperate and properly communicate with the competent authorities so as to present the relevant facts of his/her case and sufficient procedural guarantees to pursue his/her case throughout all stages of the procedure.” Procedures should satisfy certain basic requirements, which reflect the special situation of the applicant for refugee status, and which would ensure that the applicant is provided with certain essential guarantees. Some of these basic requirements are set out in on p.31 of the UNHCR Handbook as well as the APD Arts. 10, 17 and 34 and include: a personal interview, the right to legal assistance and representation, specific guarantees for vulnerable persons and regarding the examination procedure, and those guarantees set out in the Asylum Procedures Directive. |
|
War crimes
Description
"(a) Grave breaches of the Geneva Conventions of 12 August 1949, as defined in Article 8(2a) of the Rome Statute of the International Criminal Court; and (b) Other serious violations of the laws and customs applicable in international armed conflict, within the established framework of international law, as defined in Article 8(2b) of the Rome Statute of the International Criminal Court." |
Headnote:
This case examines the differences between the procedure for examining a claim for asylum and the procedure for examining the application of exclusion clauses.
Facts:
A substantive examination of the applicant’s claim did not take place. The MOI claimed that there was a justified suspicion that the applicant had committed a crime against peace, a war crime, or a crime against humanity, according to section 15 of the Asylum Act, implementing Art 1F of the 1951 Geneva Convention.
The MOI based it's decision on a report compiled by the Security Information Service, which was designated as “restricted.” As the report was considered classified information, the competent authority did not allow the applicant to access it. The applicant brought an action against the authority to the Regional Court. The Court annulled the decision of the MOI; the authority brought a cassation complaint to the Supreme Administrative Court (SAC).
Decision & reasoning:
The SAC confirmed that when an asylum claim is being determined, according to section 12 of the Asylum Act or Art 1A(2) of the 1951 Geneva Convention, it is the competent authority which carries out the relevant assessment and makes findings based on objective facts and the credibility of the applicant.
On the other hand, when the application of an exclusion clause is being considered, (according to section 15 of the Asylum Act or Art 1F of the 1951 Geneva Convention) the competent authority is only required to ascertain whether there are serious reasons for considering that a relevant crime has taken place, which would exclude the applicant from being granted asylum.
The burden of proof is transferred to the applicant, only the applicant can refute a presumption. If the competent authority makes it impossible for an applicant to refute a presumption, then he is placed in a disadvantageous situation (in this instance the report used against the applicant was classified). The fact that one piece of evidence is classified information cannot be a sufficient reason to restrict the basic (constitutional) right of the applicant to challenge all of the evidence used against him.
If the disclosure of the classified information results in a denial of the basic aim of the Protection of Classified Information Act, then the competent authority should disclose only information relevant to the procedure, and in a suitable format. On these grounds the Supreme Administrative Court held that they would not deviate from the decision of the court of first instance and the cassation complaint was dismissed.
Outcome:
The appeal of the MOI was dismissed and the decision of the regional court conformed.
Observations/comments:
Case available on the website of the Supreme Administrative Court - www.nssoud.cz
Relevant International and European Legislation:
Cited Cases:
| Cited Cases |
| Czech Republic - II. ÚS 28/02 (Constitutional Court) |
| Czech Republic - Pl. ÚS 11/2000 (Constitutional Court) |
| Czech Republic - Pl. ÚS 41/02 (Constitutional Court) |
Follower Cases:
| Follower Cases |
| Czech Republic – Supreme Administrative Court, 7 September 2012, A.S. v Ministry of Interior, 4 Azs 60/2007-19 |