Czech Republic - Supreme Administrative Court, 24 February 2004, Y.A. v Ministry of Interior, 6 Azs 50/2003-89
| Country of Decision: | Czech Republic |
| Country of applicant: | Iran |
| Court name: | Supreme Administrative Court |
| Date of decision: | 24-02-2004 |
| Citation: | 6 Azs 50/2003-89 |
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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Benefit of doubt
Description
The advantage derived from doubt about guilt, a possible error, or the weight of evidence. “When statements are not susceptible of proof, even with independent research, if the applicant's account appears credible, he should, unless there are good reasons to the contrary, be given the benefit of the doubt. The requirement of evidence should thus not be too strictly applied in view of the difficulty of proof inherent in the special situation in which an applicant for refugee status finds himself. Allowance for such possible lack of evidence does not, however, mean that unsupported statements must necessarily be accepted as true if they are inconsistent with the general account put forward by the applicant." |
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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." |
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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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Personal interview
Description
"The process of questioning or talking with a person in order to obtain information or determine the personal qualities of the person. An interview is a common step in the adjudication of an application for refugee or other immigration status.” An applicant for asylum must be given the opportunity of a personal interview subject to the provisions of the Asylum Procedures Directive: - A personal interview must normally take place without the presence of family members unless considered necessary for an appropriate examination. - It must be conducted under conditions which allow applicants to present the grounds for their applications in a comprehensive manner and which ensure appropriate confidentiality. - the person who conducts the interview must be sufficiently competent to take account of the personal or general circumstances surrounding the application, including the applicant’s cultural origin or vulnerability, insofar as it is possible to do so - interpreters must be able to ensure appropriate communication between the applicant and the person who conducts the interview but it need not necessarily take place in the language preferred by the applicant if there is another language which he/she may reasonably be supposed to understand and in which he/she is able to communicate. - Member States may provide for rules concerning the presence of third parties at a personal interview. - a written report must be made of every personal interview, containing at least the essential information regarding the application as presented by the applicant - applicants must have timely access to the report of the personal interview and in any case as soon as necessary for allowing an appeal to be prepared and lodged in due time." |
Headnote:
If any fact emerges during the interview, which indicates that the applicant could be persecuted for exercising his political rights and freedoms, or has a well-founded fear of being persecuted on the grounds upon which asylum can be granted, the Ministry of Interior obliged to conduct the interview in a way that would achieve an outcome which is sufficiently clear for the needs of considering the asylum claim. It is also necessary to evaluate the way in which state power is exercised in the country of origin, and the real possibility of exercising one’s political rights and other circumstances that could establish grounds for international protection.
Facts:
The applicant, from Iran, applied for asylum on the grounds that his life was in jeopardy because he participated in anti-government demonstrations for which he was imprisoned. He claimed that he could not express his opinions freely. The application was refused by the Ministry of Interior (MOI) on the grounds that the difficulties claimed by the applicant could not be considered as persecution. According to the IMinistry of Interior, personal dissatisfaction with the political situation in one’s country of origin, or having different political views than that of the government, does not as such constitute a reason for granting asylum. The MOI stated that if the applicant had applied for international protection for political reasons and also because he could not freely express his opinions, to the obligation is on the applicant to specifically describe what opinions he had or has.
The applicant appealed against this decision. to Regional Court. The appeal was rejected and the applicant appealed to the Supreme Administrative Court (SAC).
Decision & reasoning:
The SAC stated:
The personal interview with the applicant cannot be carried out in general terms only, without requesting specific information from the applicant. If any fact emerges during the interview, indicating that the applicant could be persecuted for exercising his political rights and freedoms, or has a well-founded fear of being persecuted for exercising his political rights and freedom, or has a well-founded fear of persecution by the state authorities on asylum grounds, the MOI is obliged to conduct the interview in a way that would achieve an outcome which is sufficiently clear for the needs of considering the asylum claim. This rule applies all the more so if the MOI does not have any other basis for its decision.
The MOI often has to make decisions in the proceedings where evidence is lacking. In these cases it is necessary to evaluate the way which state power is exercised in the country of origin, the possibility of exercising one’s political rights and other circumstances that might establish grounds for international protection.
In cases of doubt, this must be in favor of the applicant, for example where other evidence suggest that the respect for human rights in the country of origin is insufficient, where citizens are denied the right to change their government, where unlawful executions are often carried out, as well as disappearances and frequent torture occurs. On the contrary, if the country of origin of the applicant is a democratic state, the burden of proof to establish persecution is on the applicant.
Outcome:
The decision of the Regional Court was cancelled.
Observations/comments:
The SAC also concluded that the reasoning of the MOI concerning ‘obstacles to travel’ (danger of torture or ill-treatment) was impossible to understand. On one hand the MOI stated, referring to ECtHR judgments, that the mere possibility of torture and ill-treatment in the country of origin did not breach Art 3 of the European Convention on Human Rights, that the risk must be real. However, the MOI was not able to provide reasons as to why in the present case, the harsh conditions in prisons in Iran did not willful the definition of torture or ill–treatment. The SAC also noted that the ECHR cannot, in principle, be relied on as an argument for not granting asylum.
The ECtHR judgements cited in this case are often relied on by the MOI in negative decisions on international protection.
Decision of the Supreme Administrative Court n. 6 Azs 50/2003-89, available at www.nssoud.cz