Netherlands - ABRvS, 29 May 2012, 201108872/1/V1
| Country of Decision: | Netherlands |
| Country of applicant: | Belarus |
| Court name: | ABRvS (Administrative Jurisdiction Division of the Council of State) |
| Date of decision: | 29-05-2012 |
| Citation: | 201108872/1/V1 |
Headnote:
Domestic protection is deemed to exist even if it is not determined in advance how effective it is.
Facts:
An appeal by the Minister against the judgment by the Court of Arnhem of 19 July 2011, case number AWB 10/40459. The Minister's appeal stated that the Court had incorrectly found that the decision of 26 October 2010 had been made in breach of Articles 3(2) and 3(46) of the General Administrative Law Act and that the decision thus lacked sufficient grounds. The Court based this finding on the conclusion that the Minister should have provided grounds for presuming that protection can generally be obtained from the authorities in Belarus. In the view of the Court, it was not clear that the Minister had researched this point.
Decision & reasoning:
As the Council of State found in its judgment of 5 August 2008 (case number 200708107/1), the wording of Article 7(2) of the Qualification Directive does not provide a basis for the view that the existence of an effective legal system for the detection, prosecution, and punishment of acts constituting persecution or serious harm is an independent criteria for answering the question of whether or not protection is provided. Consequently, if there is no such effective legal system, this does not automatically mean that the answer to the question is 'no'. The Minister, based on information about the general situation in Belarus, investigated whether protection is provided in general and took the substantiated view that the answer to the question was 'yes'. Contrary to what the Court found, there is no basis for finding that the Minister took this view without undertaking further research, as the documents cited by the Minister show that, although there is widespread police corruption in Belarus and this is often not combated, complaints may nonetheless be submitted to higher authorities about such corruption. The fact that the effectiveness of protection cannot be determined in advance does not mean, as the Council of State found previously in its judgment of 30 May 2011 (case № 200909548/1/V2), that no protection can be provided in practice.
The Court thus found incorrectly that the decision of 26 October 2010 was not prepared with due care and lacked sufficient grounds.
Outcome:
The appeal by the Minister was upheld.
Relevant International and European Legislation:
Cited National Legislation:
| Cited National Legislation |
| Netherlands - Algemene wet bestuursrecht (General Administrative Law Act) - Art 3(2) |
| Netherlands - Algemene wet bestuursrecht (General Administrative Law Act) - Art 3(46) |