Poland - Regional Administrative Court in Warsaw, 4 December 2012, V SA/Wa 931/12
Keywords:
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Actors of protection
Description
"Actors such as: (a) the State; or (b) parties or organisations, including international organisations, controlling the State or a substantial part of the territory of the State; who take reasonable steps to prevent the persecution or suffering of serious harm, inter alia, by operating an effective legal system for the detection, prosecution and punishment of acts constituting persecution or serious harm, and the applicant has access to such protection." |
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Actor of persecution or serious harm
Description
Per Art. 6 QD actors who subject an individual to acts of serious harm (as defined in Art. 15). Actors of persecution or serious harm include: (a) the State; (b) parties or organisations controlling the State or a substantial part of the territory of the State; (c) non-State actors, if it can be demonstrated that the actors mentioned in (a) and (b), including international organisations, are unable or unwilling to provide protection against persecution or serious harm as defined in Article 7. |
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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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Protection
Description
A concept that encompasses all activities aimed at obtaining full respect for the rights of the individual in accordance with the letter and spirit of human rights, refugee and international humanitarian law. According to Article 2(a) of the Qualification Directive, international protection meansrefugee and subsidiary protection status as defined in (d) and (f). According to Recital 19 of the Qualification Directive “Protection can be provided not only by the State but also by parties or organisations, including international organisations, meeting the conditions of this Directive, which control a region or a larger area within the territory of the State”. According to Annex II of the Asylum Procedures Directive, in the context of safe countries of origin, protection may be provided against persecution or mistreatment by: “(a) the relevant laws and regulations of the country and the manner in which they are applied; (b) observance of the rights and freedoms laid down in the ECHR and/or the International Covenant for Civil and Political Rights and/or the Convention against Torture, in particular the rights from which derogation cannot be made under Article 15(2) of the said European Convention; (c) respect of the non-refoulement principle according to the Geneva Convention; (d) provision for a system of effective remedies against violations of these rights and freedoms. |
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Well-founded fear
Description
One of the central elements of the refugee definition under Article 1A ofthe1951 Refugee Convention is a “well-founded fear of persecution”: "Since fear is subjective, the definition involves a subjective element in the person applying for recognition as a refugee. Determination of refugee status will therefore primarily require an evaluation of the applicant's statements rather than a judgement on the situation prevailing in his country of origin. To the element of fear--a state of mind and a subjective condition--is added the qualification ‘well-founded’. This implies that it is not only the frame of mind of the person concerned that determines his refugee status, but that this frame of mind must be supported by an objective situation. The term ‘well-founded fear’ therefore contains a subjective and an objective element, and in determining whether well-founded fear exists, both elements must be taken into consideration." |
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Refugee Status
Description
The recognition by a Member State of a third-country national or stateless person as a refugee. |
Headnote:
Acts of a criminal nature cannot be equated with persecution within the meaning of grounds cited under the Convention. Public authorities in the country of origin, which the family of the foreignor did not contact, are supposed to provide protection against risks posed by individual citizens.
Facts:
D.U., a citizen of Georgia, applied for refugee status for herself and for her two minor children. She applied for international protection on the grounds of persecution and bullying of her family on the basis of nationality and religion. For these reasons, the children were looked down upon at school by the teachers and poorly treated by schoolmates. The family had financial problems. The foreignor was not working. The situation improved when her husband borrowed money and started his own business. As the business went badly, and further debts built up, creditors started to threaten them.
On rejection of the application by the Office for Foreigners, the foreignor appealed. The Polish Council for Refugees shared the view of the Office for Foreigners and refused her protection. The Council stressed that the applicant had cited fear of persecution due to nationality and religion but in no way demonstrated the circumstances that might lend credibility to the assertion of a genuine threat of persecution. The authority took the view that the fear experienced and expressed by the foreignor could not be viewed as well founded.
The foreignor appealed to the Regional Administrative Court against the decision by the Council seeking to have it overturned.
Decision & reasoning:
The Regional Administrative Court dismissed the appeal.
The Court found that the evidence in this case had been collected and examined very carefully by the authorities at first and second instance. The Court stressed that the foreignor had in no way shown that the aggression of neighbours, teachers, or others expressing hostility towards her family was on such a scale as would fulfil the conditions for refugee status to be granted, for subsidiary protection to be provided, or for right to remain to be granted. The Court therefore concluded that she did not have a well-founded fear of persecution in her country of origin on the grounds of race, religion, nationality, political opinion, or membership of a particular social group, as her fears had apparently arisen only from the hostility towards other nationalities she said had been shown by some citizens, namely teachers and her sons' schoolmates.
If family members had indeed been humiliated and creditors had made criminal threats, then crimes had been committed. The case needed to be dealt with by law enforcement agencies, as the acts cited by the foreignor were crimes and were not covered by the rules governing international protection. The Court stressed that the case law of administrative courts is consistent in the view that acts of a criminal nature cannot be equated with persecution within the meaning of grounds cited under the Convention. Public authorities in the country of origin, which the family of the foreignor did not contact, are supposed to provide protection against risks posed by individual citizens.
The appeal was therefore dismissed.
Outcome:
The Court dismissed the appeal.
Observations/comments:
The judgment concerns the concept of persecution and indicates that acts of a criminal nature cannot be equated with persecution within the meaning of grounds cited under the Convention. The state is responsible for protection in such situations. The grounds do not indicate that, in this case, there may be a basis for recognising refugee status if the state does not provide the due protection against criminal acts and the reason for this failure to provide protection is race, religion, nationality, belonging to a particular social group, or political opinion, on the part of the victim.
The content of the judgment is available at the Central Database of Judgments: