Poland - Regional Administrative Court in Warsaw, 19 August 2010, V SA/Wa 243/10
| Country of Decision: | Poland |
| Court name: | Regional Administrative Court in Warsaw |
| Date of decision: | 19-08-2010 |
| Citation: | V SA/Wa 243/10 |
Keywords:
| Keywords |
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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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Procedural guarantees
Description
“In the interests of a correct recognition of those persons in need of protection … every applicant should, subject to certain exceptions, have an effective access to procedures, the opportunity to cooperate and properly communicate with the competent authorities so as to present the relevant facts of his/her case and sufficient procedural guarantees to pursue his/her case throughout all stages of the procedure.” Procedures should satisfy certain basic requirements, which reflect the special situation of the applicant for refugee status, and which would ensure that the applicant is provided with certain essential guarantees. Some of these basic requirements are set out in on p.31 of the UNHCR Handbook as well as the APD Arts. 10, 17 and 34 and include: a personal interview, the right to legal assistance and representation, specific guarantees for vulnerable persons and regarding the examination procedure, and those guarantees set out in the Asylum Procedures Directive. |
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Refugee sur place
Description
In the EU context, a person granted refugee status based on international protection needs which arose sur place, i.e. on account of events which took place since they left their country of origin. In a global context, a person who is not a refugee when they leave their country of origin, but who becomes a refugee, that is, acquires a well-founded fear of persecution, at a later date. Synonym: Objective grounds for seeking asylum occurring after the applicant's departure from his/her country of origin Note: Refugees sur place may owe their fear of persecution to a coup d'état in their home country, or to the introduction or intensification of repressive or persecutory policies after their departure. A claim in this category may also be based on bona fide political activities, undertaken in the country of residence or refuge. |
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Political Opinion
Description
One of the grounds of persecution specified in the refugee definition per Article 1A ofthe1951 Refugee Convention. According to the Qualification Directive the concept of political opinion includes holding an opinion, thought or belief on a matter related to potential actors of persecution and to their policies or methods, whether or not that opinion, thought or belief has been acted upon by the applicant. |
Headnote:
A well-founded fear of persecution may also be based on events that took place after the Applicant left his country of origin (refugee sur place). Sur place evidence refers to circumstances which arose after the Applicant left his country of origin and which are as a rule connected with a change in the situation in the country of origin, but one cannot exclude other events which are closely linked with the person applying for refugee status and which occurred after he left his country of origin.
Facts:
V.Z. submitted an application for refugee status in Poland, citing fear of persecution for reasons of political opinion. The foreigner testified that in his country of origin he had worked for the customs office, where he had met I.M. prior to the election and had helped him by distributing leaflets.He explained that he and I.M. had identical political opinions that were opposed to the regime. He was summoned by the KGB, who informed him that he had been negligent in the performance of his official duties. Next he was summoned to the public prosecutor’s office where he was shown documents describing his alleged offences. The KGB gave him to understand that they knew everything about him, which he interpreted as a threat and as an allusion to his friendship with the opposition activist. Criminal proceedings were instigated against the foreigner, who in the end decided to leave the country.
The Polish Office for Foreigners refused to grant V.Z refugee status, provide subsidiary protection or grant a permit for tolerated stay, arguing that he did not need international protection and that he did not have a well-founded fear of persecution.
According to the head of the Office for Foreigners, the foreigner had not indicated, let alone demonstrated, that the state authorities or other entities had taken any actions against him that could be deemed harmful under the Geneva Convention. The office also alleged that the statements made by V.Z. in regard to his political activity were somewhat brief and did not reveal what political opinions he truly held. In his appeal, V.Z. pointed out that he is involved in political activity in Poland as well. The Polish Refugee Board shared the position taken by the first-instance authority, additionally pointing out that it would be difficult to regard the criminal proceedings against V.Z. as persecution, particularly as the foreigner had been employed until 2006 as a customs service official and that he had left his country of origin legally.
The foreigner appealed against this decision to the Regional Administrative Court seeking the decision to be overturned. He included documents in his appeal confirming his political activity within the Republic of Poland.
Decision & reasoning:
The Court overturned the decision of the Polish Refugee Board in full.
The Court found that the second-instance authority had not taken all the necessary steps to establish precisely the facts of the case, and consequently it had not gathered and examined all the evidence. In this context, the Court held that the Polish Refugee Board had omitted to assess the Applicant’s behaviour in Poland in terms of whether he met the conditions for being accorded the status of a refugee sur place.
A well-founded fear of persecution may also be based on events that took place after the Applicant left his country of origin (refugee sur place). The Court explained that sur place evidence refers to circumstances which arose after the Applicant left his country of origin and which are as a rule connected with a change in the situation in the country of origin, but that one cannot exclude other events which are closely linked with the person applying for refugee status and which occurred after he left his country of origin. A well-founded fear of persecution or serious harm may be based on events which took place after the Applicant left his country of origin, or on actions taken by the Applicant after he left his country of origin, particularly in cases where it is established that such actions are a manifestation and continuation of the beliefs or orientation that the Applicant expressed in his country of origin.
In view of the fact that the appeal authority had ignored these issues, the Court overturned the decision appealed against. The Court also instructed the Board to analyse and, if necessary, to supplement the evidence in the case, additionally taking into account events that took place in Poland (refugee sur place).
Outcome:
The Court overturned the decision appealed against.
Observations/comments:
The content of the judgment is available from the Central Database of Administrative Court Judgments: http://orzeczenia.nsa.gov.pl/doc/9B0A9C8DBE