Czech Republic - Supreme Administrative Court, 9 October 2009, A.K.B. v. Ministry of the Interior, 6 Azs 34/2009-89

Facts:

The applicant, originally from the Ivory Coast, was suffering with HIV/AIDS. He claimed that in the case of return to his country of origin he would be threatened with inhuman and degrading treatment because he would not have access to necessary and affordable treatment, which will lead to deterioration of his health condition and precipitation of the terminal stage of his illness.

The Ministry of the Interior did not grant the applicant international protection on the grounds that information about the country of origin indicates that HIV/AIDS treatment is available in the country of origin, especially in Abidjan, the capital city, where the applicant lived before his departure.

The Regional Court in Brno dismissed the appeal.

The applicant lodged an appeal on a point of law with the Supreme Administrative Court against the judgment of the Regional Court.

Decision & reasoning:

Firstly, the Supreme Administrative Court pointed out an inaccurate transposition of Article 15(b) of the Qualification Directive in the Czech Asylum Act. While the Qualification Directive understands serious harm as "torture or inhuman or degrading treatment, or punishment of an applicant in the country of origin", the Czech equivalent in Article 14a(2)(b) of the Asylum Act does not contain the words "in the country of origin". The court found no duty to ask the European Court of Justice for preliminary ruling, since Article 3 of the Qualification Directive enables the member states to implement more favourable provisions. According to the expert literature, the intention of the Qualification Directive was to exclude granting subsidiary protection in so-called "humanitarian cases". The wording of Article 14a(2)(b) of the Asylum Act does not permit such restrictive interpretation; the court, however, did not have any doubts that the extension of the circle of persons to whom it is possible to grant subsidiary protection, is completely compatible with the Directive in this case.

Furthermore, the court dealt with the interpretation of the concept of "serious harm consisting of inhuman or degrading treatment” in relation to persons affected with HIV/AIDS. The court based it upon the scope of Article 3 of the ECHR and the jurisprudence of the European Court of Human Rights (ECtHR).

The Supreme Administrative Court recalled that the ECtHR had repeatedly addressed the question of whether a member state of the Council of Europe violates Article 3 of the ECHR when it expels a foreigner to their country of origin, where they would not be provided with medical care comparable to that provided in the member state, when this fact fundamentally affects the length and quality of life of that person. These so-called "humanitarian cases" are typically characterised by the fact that the person is not endangered by inhuman or degrading treatment as a result of the state or nongovernmental entities in the country of origin (caused by their acts) but for objective reasons (because of the nature of the illness from which the person is suffering).

The ECtHR is well aware of these particularities and therefore it found Article 3 of the ECHR to be violated only in exceptional cases. The only case where the expulsion was found to be in contradiction with Article 3 of the ECHR is the judgement in D. vs. the United Kingdom. A judgment from the Grand Chamber of the ECtHR in N vs. the United Kingdom followed this decision; the applicant was not, however, successful.

The Supreme Administrative Court acknowledged that no generalising test of the "importance of the circumstances of the case" can be found in the quoted decisions that cause a violation of Article 3 of the ECHR, which is why it is necessary to examine the circumstances of each case evaluated, and compare them with cases assessed by the ECtHR.

The Supreme Administrative Court found the applicant was in an advanced (but not terminal) stage of the disease medically known as stage B3 and was being treated with combined antiretroviral therapy. Based on reports on the country of origin, it was found that necessary treatment was accessible in the country of origin of the applicant even though it can be expensive. The court also considered the family background of the applicant in the country of origin – both parents and four brothers.

The conclusion of the court was that the factual circumstances of the case do not reach the high standard set in judgment D. vs. the United Kingdom but, on the contrary, are similar to cases where the ECtHR did not find Article 3 of the ECHR to be violated.

Outcome:

The cassation complaint was dismissed.

Observations/comments:

The court did not deal with the objection to granting humanitarian asylum pursuant to Article 14 of the Asylum Act as it found this objection inadmissable. According to Act No. 150/2002 Coll., the Administrative Procedure Code, the cassation complaint in matters of international protection is only acceptable if its importance significantly surpasses the claimant’s own interests. According to the jurisprudence of the Supreme Administrative Court, an interest surpassing the claimant’s own interests cannot be determined , inter alia, when the question has already been sufficiently decided by previous jurisprudence and the Regional Court has not made any serious errors that could have had a substantive impact on the status of the applicant.

The question of the possibility of granting subsidiary protection according to Article 14A(2)(b) in so-called humanitarian cases was resolved by the court for the first time, which is why the cassation complaint in this part was admissable.

Other sources:

Barnes J., IARLJ, European Chapter. A manual for refugee law judges relating to European Council qualification directive 2004/83/EC and European Council Procedures Directive