Czech Republic - Supreme Administrative Court, 25 Nov 2011, D.A. v Ministry of Interior, 2 Azs 100/2007-64
| Country of Decision: | Czech Republic |
| Country of applicant: | Congo (DRC) |
| Court name: | Supreme Administrative Court |
| Date of decision: | 25-11-2011 |
| Citation: | 2 Azs 100/2007-64 |
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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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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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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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:
In cases concerning countries which are not democratic and secure decision-makers must not only look to ratified international treaties as evidence of the human rights situation. It is necessary to examine carefully how international obligations and the legal system as a whole are applied in practice.
Facts:
The applicant applied for international protection in 2006. He left the Democratic Republic of Congo in 1999 and lived in a neighboring state before coming to the Czech Republic He claimed that he left the DRC as he was called for military service. He was forced by soldiers to go into a military camp from which he escaped after 14 days. He stated that if he remained he would have been sent to fight in the east of the country. At this time he was still a minor (under 18 years). He also stated that he was called into the army by the government soldiers (FAC members) and he expressed concern that he would be considered a deserter or a rebel and that it was impossible to determine in advance how he would be treated by them.
The Ministry of Interior rejected the application stating that his fear of a risk of serious harm as a result of his desertion was not reasonable as the DRC signed the Optional Protocol to the Convention on the Rights of the Child where it committed not to divert children into the armed forces. Entry into the army in DRC was voluntary, there is no compulsory military service and the applicant had not signed any binding entry form (he only filled in a document by hand). Thus, he would not fall into the scope of the law on desertion. The Ministry's decision was confirmed by the Regional Court. The applicant appealed to the SAC.
Decision & reasoning:
The SAC concluded that in countries which are not democratic and secure, decision-makers must not only look to ratified international treaties (in this case the Optional Protocol) and take them as evidence of the human rights situation in the country. On the contrary, the situation in countries that cannot be described as democratic and do not abide by the rule of law, it is necessary to examine carefully how international obligations and the legal system as a whole are applied in practice. The DRC has a weak judiciary, targets activists and journalists and widely violates human rights. It cannot be described as a democratic country.
It was therefore the duty of the Ministry to take a deeper look into the country of origin information (COI) concerning practices in the DRC. The Court pointed to the UN Secretary General's Report on the UN Organization Mission in the Democratic Republic of the Congo 28 Dec 2005, which explicitly refers to the fact that minors are forced to engage in combat.
Similarly, the conclusion that the applicant would not be considered a deserter as he had not signed any binding form, cannot be reached without further consideration of the COI. The MOI is firstly obliged to determine whether the law on desertion applies on the applicant. Then the nature of the punishment, and the possible manner of imprisonment, has to be considered in connection with the risk of serious harm.
Outcome:
The decision of the Regional Court was cancelled.
Observations/comments:
The Court also commented on the issue of the right to an interpreter (the applicant argued inter alia that the right to interpretation was breached). The Court rejected this argument claiming that the need for an interpreter in Court proceedings had yet be decided upon and was not at issue in this case. The Court also referred to the jurisprudence of the Constitutional Court, where it has been declared that the right to interpretation applies mostly to Court hearing or proceedings before government authorities.
Relevant International and European Legislation:
Cited National Legislation:
| Cited National Legislation |
| Czech Republic - Asylum Act (325/1999 Coll.) - Art 14a |
| UNCRC - First Optional Protocol |
Cited Cases:
Follower Cases:
| Follower Cases |
| Czech Republic - Supreme Administrative Court, 27 October 2011, D.K. v Ministry of Interior, 6 Azs 22/2011 |
Other sources:
Twentieth Report of the Secretary-General on the UN Organization Mission in the Democratic Republic of the Congo 28 Dec 2005
Human Rights Watch World Report 2006
UK Boarder Agency Coutry of Origin Report, April 2005