Czech Republic - Supreme Administrative Court, 4 February 2009, Ö.S. v. Ministry of the Interior, 1 Azs 105/2008-81_

Facts:

The applicant, originally from Turkey, stated that he refused to complete compulsory military service in the Turkish army because of his Kurdish nationality, as he would have to fight against rebels of the same nationality. He further explained that he supported the DTP, the opposing Kurdish party. He had been arrested during celebrations for the Kurdish national holiday of Nawroz, and was held in prison for 2 weeks.

The Ministry of the Interior did not grant international protection to the applicant.

The Regional Court in Prague revoked the decision of the Ministry and returned the case for further proceedings. The Court reasoned that as a result of out-of-date and unsuitable country of origin information, the Ministry did not investigate the facts sufficiently.

The Ministry filed a cassation complaint with the Supreme Administrative Court.

Decision & reasoning:

The Supreme Administrative Court agreed with the judgment of the Regional Court that the Ministry based its judgment on out-of-date information about the country of origin of the applicant. The report was based on the situation in south-east Turkey up until 2006, and did not consider that during 2007, these circumstances ceased to exist for Kurdish minorities. With regard to this change in situation, the report was already out-of-date by the time the Ministry made its decision (in 2008).

Further, the court dealt with the matter of whether, and to what extent an administrative body may base its conclusions on a European Commission evaluation report about progress made by candidate countries for membership in the European Union.

Firstly, the Court was reminded of the standards the country of origin information has to meet: ”As much as is possible, the country of origin information is to be (1) relevant, (2) credible and well-balanced, (3) up-to-date and verified by various resources, and (4) transparent and traceable (see Criteria for processing information about countries of origin in asylum procedures, in: GYULAI, G.: Country Information in Asylum Procedures: Quality as a Legal Requirement in EU, Budapest, 2007)“.

With reference to the judgment of the Grand Chamber of the European Court of Human Rights (ECTHR) in Saadi vs. Italy, the Supreme Administrative Court stated that the credibility of country of origin information is to be examined with regard to the authority and reputation of the authors of the report, the respectability of the investigations, the follow-up and consistency of the conclusions, and whether the presented statements are supported by other sources.

Furthermore, the ECTHR judgment of NA vs. the United Kingdom shows that an examination of the report that contains country of origin information is necessary to determine the independence, reliability and objectivity of the author of the report. It is also important to consider the degree to which the author is represented in the country of origin and his ability to obtain information directly on the spot. If there are a large number of reports that deal with the situation in the country of origin, it is necessary to prioritise those that deal with the condition of human rights and that indicate circumstances directly relevant to the assessment of the realistic threat of inhuman or cruel treatment. The relevance and weighting of the report depends upon the extent to which the report deals directly with the matters under consideration in the proceedings in question. A report that describes general socio-economic conditions in the country of origin and does not deal with specific matters that have to be clarified in the proceedings, will usually be given less weight.

The Court then applied these criteria to examine the evaluation report of the European Commission about progress reached by Turkey in 2007. The Court stressed that this report was not intended for use in international protection proceedings by the bodies of EU member states.

Although the evaluation report includes a chapter on the protection of human rights and rights of minorities, its purpose is primarily to assess the extent of progress made in preparation for EU membership. The accession of candidate countries into the EU is always a supremely political matter as it represents the clash of geopolitical, military and economic interests of the European Union or its member states, as well as those of the candidate country. This report is thus a supremely politically sensitive document, in which every sentence is carefully considered in order not to give rise to unwanted diplomatic quarrels and not to threaten the interests of the various actors in the accession negotiations. The fact that the report is written using diplomatic language that does not enable the real situation in the country of origin to be deciphered, should also be remembered.

According to the conclusion of the Court, the evaluation report of the European Commission may be used as one of the proofs in international protection proceedings. Nevertheless it may only be used as supporting evidence together with other reports about the country of origin that are not encumbered by the afore-mentioned imperfections. It is also necessary to consider that this is a diplomatic document that has not been drawn up for the purposes of international protection proceedings and so does not focus on analysis of circumstances and phenomena relevant to the granting of international protection.

Outcome:

The cassation complaint of the Ministry of the Interior was dismissed.

Observations/comments:

The proceedings previous to the judgment of the Regional Court in Prague are also a part of the EDAL database entitled: Czech Republic – Regional Court Prague, O.S. v. Ministry of the Interior, 14.08.2008, 48 Az 57/2008.

Other sources:

GYULAI, G.: Country Information in Asylum Procedures: Quality as a Legal Requirement in EU, Budapest, 2007