Czech Republic - Supreme Administrative Court, 25 January 2011, R.S. v Ministry of Interior, 6 Azs 36/2010-274
| Country of Decision: | Czech Republic |
| Country of applicant: | Kyrgyzstan |
| Court name: | Supreme Administrative Court |
| Date of decision: | 25-01-2011 |
| Citation: | 6 Azs 36/2010-274 |
Keywords:
| Keywords |
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Actors of protection
Description
"Actors such as: (a) the State; or (b) parties or organisations, including international organisations, controlling the State or a substantial part of the territory of the State; who take reasonable steps to prevent the persecution or suffering of serious harm, inter alia, by operating an effective legal system for the detection, prosecution and punishment of acts constituting persecution or serious harm, and the applicant has access to such protection." |
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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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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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Persecution Grounds/Reasons
Description
Per Article 1A ofthe1951 Refugee Convention, one element of the refugee definition is that the persecution feared is “for reasons of race, religion, nationality, membership of a particular social group or political opinion“. Member States must take a number of elements into account when assessing the reasons for persecution as per Article 10 of the Qualification Directive. |
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Religion
Description
One of the grounds of persecution specified in the refugee definition under Article 1A ofthe1951 Refugee Convention. According to the Qualification Directive, the concept of religion includes in particular the holding of theistic, non-theistic and atheistic beliefs, the participation in, or abstention from, formal worship in private or in public, either alone or in community with others, other religious acts or expressions of view, or forms of personal or communal conduct based on or mandated by any religious belief. |
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Gender Based Persecution
Description
‘Gender-related persecution’ is used to encompass the range of different claims in which gender is a relevant consideration in the determination of refugee status. Gender refers to the relationship between women and men based on socially or culturally constructed and defined identities, status, roles and responsibilities that are assigned to one sex or another. Gender is not static or innate but acquires socially and culturally constructed meaning over time. Gender-related claims may be brought by either women or men, although due to particular types of persecution, they are more commonly brought by women. Gender-related claims have typically encompassed, although are by no means limited to, acts of sexual violence, family/domestic violence, coerced family planning, female genital mutilation, punishment for transgression of social mores, and discrimination against homosexuals." |
Headnote:
According to the Qualification Directive, forced marriage, along with domestic violence and issues of faith, can be considered as persecution on a cumulative basis having regard to the situation in the country of origin.
Facts:
The applicant, a women of Uzbek nationality from Kyrgyzstan, applied for international protection in the Czech Republic on the grounds that she was in a forced polygamous marriage. She also feared domestic violence from her husband due to her decision to change her religion.
The Czech Ministry of Interior (MOI) dismissed her application. The applicant appealed to the Regional Court. However this action was dismissed. The Court stated that Kyrgyzstan would be able and willing to prevent the persecution or the serious harm, including domestic violence, which might be a threat to the applicant in case of her return to her country of origin. The applicant appealed to the Supreme Administrative Court.
The applicant, inter alia, argued that insufficient consideration had been given to the question of whether living in a forced and a bigamous relationship against her religious beliefs could be taken as a restriction on her religious freedom. Moreover, if the religious rules held and enforced by her husband’s family, which were the opposite of her own religious beliefs, were a restriction on her religious freedom.
Decision & reasoning:
I. The fact, that the applicant was forced to marry or to remain in the marriage against her will, can be considered as persecution in concurrence with other violations of human rights (for example domestic violence) and according to the situation in the country of origin [Art 9.1(b) of the Qualification Directive].
II. When assessing the situation in the country of origin it is necessary to consider if there is accessible and efficient protection against domestic violence for women in a similar situation to the applicant, as the second legally unrecognized wife in the polygamous marriage, who was forced to remain in the marriage against her will and who was also the victim of domestic violence [Art 6 and Art 7 of the Qualification Directive].
III. There must be a causal nexus between acts of persecution and persecution grounds; however the persecution grounds do not have to be necessarily connected to actors of persecution (husband) but must be connected to actors of protection. The condition of persecution for asylum relevant (religious) grounds can therefore be met, if authorities that can or should offer protection from behavior the applicant fears fail to do so for one of the asylum relevant grounds (persecution grounds).
Outcome:
The appeal was successful and the decision of Regional Court dismissed.
Observations/comments:
Judgment of the Supreme Administrative Court, No. 6 Azs 36/2010-274 available at www.nssoud.cz
Published in 6/2011 of The Law Reports and Opinions Collection of the Supreme Administrative Court (Sbírka rozhodnutí Nejvyššího správního soudu)
Relevant International and European Legislation:
Cited Cases:
| Cited Cases |
| Czech Republic - 5 Azs 36/2008-119 (Supreme Administrative Court) |
Other sources:
US Department of State Annual Report on Human Rights Practices in 2005 and 2008