Czech Republic, Supreme Administrative Court, 21 May 2008, L.V. v Ministry of Interior, 2 Azs 48/2007
| Country of Decision: | Czech Republic |
| Country of applicant: | Belarus |
| Court name: | Supreme Administrative Court |
| Date of decision: | 21-05-2008 |
| Citation: | 2 Azs 48/2007 |
Keywords:
| Keywords |
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Persecution (acts of)
Description
"Human rights abuses or other serious harm, often, but not always, with a systematic or repetitive element. Per Article 9 of the Qualification Directive, acts of persecution for the purposes of refugee status must: (a) be acts sufficiently serious by their nature or repetition as to constitute a severe violation of basic human rights, in particular the rights from which derogation cannot be made under Article 15(2) of the ECHR; or (b) be an accumulation of various measures, including violations of human rights which is sufficiently severe as to affect an individual in a similar manner as mentioned in (a). This may, inter alia, take the form of: acts of physical or mental violence, including acts of sexual violence; legal, administrative, police and/or judicial measures which are in themselves discriminatory or which are implemented in a discriminatory manner; prosecution or punishment, which is disproportionate or discriminatory; denial of judicial redress resulting in a disproportionate or discriminatory punishment; prosecution or punishment for refusal to perform military service in a conflict, where performing military service would include crimes or acts falling under the exclusion clauses in Article 12(2). " |
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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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Standard of proof
Description
The degree or level of persuasiveness of the evidence required in a specific case. For example, in the refugee context, ‘well-founded’ is a standard of proof when assessing the fear of persecution. |
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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. |
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Real risk
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. The fact that an applicant has already been subject to persecution or serious harm or to direct threats of such persecution or such harm, is a serious indication of the applicant's well-founded fear of persecution or real risk of suffering serious harm, unless there are good reasons to consider that such persecution or serious harm will not be repeated. |
Headnote:
The case concerns the extent to which decision-makers should take into account a change of circumstances or situation in the country of origin.
Facts:
The applicant, a Belarusian citizen, applied for asylum in the Czech Republic in 2005. He claimed that a murder had taken place in his house and he was interrogated during the investigation. That same year, the applicant was detained by a police patrol and subjected to a body search. The police claimed that he looked the same as a criminal they were looking for. Eventually the police released the applicant, however they threatened that they would see him again soon.
The MOI refused the applicant’s claim. The MOI and also the Regional Court concluded that the police actions described by the applicant, could not be considered as illegal or motivated by an effort to persecute the applicant for political or other reasons according to Art 12 of the Asylum Act. Therefore the applicant’s fear seemed to be unfounded and subjective.
The applicant lodged an appeal to Supreme Administrative Court (SAC). He provided new facts, namely that a law had been adopted in the Republic of Belarus on the 20th December 2005 according to which every citizen, who provides false information regarding the political, economic, military or international situation in Belarus, may be sentenced to up to two years imprisonment.
The MOI challenged the legitimacy of the appeal, inter alia, as its decision preceded the adoption of the above-mentioned law in Belarus. Therefore, these facts could not be reflected in its decision.
Decision & reasoning:
The change of situation in the country of origin, which occurred after the decision of the deciding authority, should be taken into account, especially if that change, with regard to the specific facts of the case, is so substantial and intense that it could present a "real risk" that the applicant would be subjected to torture or inhuman and degrading treatment or punishment, or if it would be "reasonably likely" that in case of his return to the country of origin, the applicant would face the persecution for the reasons mentioned in Article 1 of the 1951 Refugee Convention.
However, the change in the applicant’s country of origin was not of such nature. According to available reports, there were no cases of people penalised in Belarus solely because of their asylum applications in another country, except individuals who were of interest to the regime (e.g. journalist).
Outcome:
The appeal was dismissed.
Observations/comments:
Case available on the website of the Supreme Administrative Court - www.nssoud.cz
According to the Court’s case law, a “reasonable probability” of the undesirable consequence upon return to the country of origin is established if in similar cases this consequence is not sporadic.
A “real risk" means that in a significant percentage of cases similar to the applicant’s situation, this undesirable consequence will happen, so that the claimant has good reason to believe that such a consequence can happen also to him with significant probability.
The test for "real risk" is stricter than the test of "reasonable probability.”
The SAC also noted that if the application of a provision of national law would cause violation of international obligations, it cannot be applied.
Relevant International and European Legislation:
Cited National Legislation:
| Cited National Legislation |
| Czech Republic - Asylum Act (325/1999 Coll.) |
| Czech Republic - Constitutional Act (No. 1/1993 Coll.) |
Cited Cases:
| Cited Cases |
| Czech Republic - Supreme Administrative Court, 26 March 2008, A.H.M. v. Ministry of the Interior, 2 Azs 71/2006-82 |
| Czech Republic - 2 Azs 75/2005-75 (Supreme Administrative Court) |