Poland - Supreme Administrative Court in Warsaw, 4 June 2002, V SA 2817/01
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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Standard of proof
Description
The degree or level of persuasiveness of the evidence required in a specific case. For example, in the refugee context, ‘well-founded’ is a standard of proof when assessing the fear of persecution. |
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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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Real risk
Description
In order to be eligible for subsidiary protection, a third country national or stateless person must demonstrate that if returned to his or her country of origin, or in the case of a stateless person, to his or her country of former habitual residence, s/he would face a real risk of serious harm as defined in QD Art. 15 and that s/he is unable, or owing to such risk, unwilling to avail her/himself of the protection of that country. The fact that an applicant has already been subject to persecution or serious harm or to direct threats of such persecution or such harm, is a serious indication of the applicant's well-founded fear of persecution or real risk of suffering serious harm, unless there are good reasons to consider that such persecution or serious harm will not be repeated. |
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Internal armed conflict
Description
“A conflict in which government forces are fighting with armed insurgents, or armed groups are fighting amongst themselves.” |
Headnote:
When assessing an application for refugee status, what is important is whether the acts of persecution were carried out for the reasons identified in the Geneva Convention, and not whether or to what extent the victim of persecution can be identified with those reasons.
Fear of persecution within the meaning of Article 1A(2) of the Geneva Convention need not mean that persecution is certain or even probable. Recognition of refugee status is already justified where there are reasonable grounds for asserting the possibility of persecution. “Possibility” means that persecution may take place although it is neither certain nor probable, and the “reasonable grounds” requirement indicates the need to establish real and objective evidence of the risk of persecution. The plausibility of the threat is shown by the situation in the country of origin of the person applying for refugee status as well as that person’s experience to date.
Facts:
S.E. submitted an application for refugee status in Poland. In the grounds of his application, S.E. explained that he had left Chechnya due to the ongoing armed conflict. His house had been bombed and he and his family had lived in constant fear of persecution from Russian soldiers, despite the fact that he had avoided involvement in the Chechen–Russian conflict and had defied the Chechen fighters when they had asked him to join them.
The Minister of Internal Affairs and Administration declined to grant the Applicant protection on the grounds that he did not meet the criteria for recognition of refugee status as laid down in the Convention. The Minister came to the conclusion that the foreigner could return to Chechnya or settle in another part of the Russian Federation, especially as there were approximately 300,000 people from the Caucasus living in Moscow alone. The application was also rejected due to the low credibility of the foreigner’s testimony and his lack of attachment to Chechen tradition.
The Polish Refugee Board dismissed the party’s appeal. It found that, although the foreigner was a victim of the civil war, he was not at risk of persecution and had come to Poland for economic reasons. The foreigner lodged an appeal against this decision with the Supreme Administrative Court.
Decision & reasoning:
The Court overturned the decision of the Polish Refugee Board in full.
The Court found that the fact that the foreigner had not participated in the fighting did not mean that he was not a Chechen. Indeed, even if he were not connected to his homeland through cultural, religious and family ties, this would not preclude the possibility of persecution for reasons of religion or nationality given that the state authorities commit acts of persecution precisely for those reasons. This statement would also be true if the state authorities had a mistaken belief about the Appellant’s religion or nationality. When assessing an application for refugee status, what is important is to determine whether the acts of persecution were carried out for the reasons identified in the Geneva Convention, and not whether or to what extent the victim of persecution can be identified with those reasons.
Secondly, the assertion that Chechens who were not involved in the armed conflict are not at risk of persecution from the Russian authorities is not sufficiently supported by the evidence gathered. The Court also stressed that fear of persecution within the meaning of Article 1A(2) of the Geneva Convention need not mean that persecution is certain or even probable. Recognition of refugee status is already justified where there are reasonable grounds for asserting the possibility of persecution. “Possibility” means that persecution may take place although it is neither certain nor probable, and the “reasonable grounds” requirement indicates the need to establish real and objective evidence of the risk of persecution. The plausibility of the threat is shown by the situation in the country of origin of the person applying for refugee status as well as that person’s experience to date.
Outcome:
The Court overturned the decision appealed against.
Observations/comments:
The importance of the ruling consists in the detailed reference made by the Court to the issue of assessing the likelihood of persecution in relation to the standards of the Geneva Convention. In particular, the Court emphasised that in order to meet the criteria for recognition of refugee status, it is not necessary for persecution to be certain or even probable; it is sufficient for it to be “possible” and for the fear of persecution to be “well-founded”.
The content of the judgment is available from the Central Database of Administrative Court Judgments:
http://orzeczenia.nsa.gov.pl/doc/B5520ACAC5
Relevant International and European Legislation:
Cited National Legislation:
Other sources:
Commission on Human Rights resolution 2001/24 – “Situation in the Republic of Chechnya of the Russian Federation”.