Slovakia - A.H. – M.F.D. v Ministry of the Interior of the Slovak Republic, 1 October 2008, 8Sža/31/2008
Keywords:
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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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Relevant Documentation
Description
“All documentation at the applicants disposal regarding the applicant's age, background, including that of relevant relatives, identity, nationality(ies), country(ies) and place(s) of previous residence, previous asylum applications, travel routes, identity and travel documents and the reasons for applying for international protection.” |
Headnote:
The fact that a party to proceedings has an unknown residence must always be proven in a credible manner, as must the exact determination of an address of residence in the territory of the Slovak Republic, and this obligation rests with the Court, which must exhaust all possibilities in determining whether the participant’s address really is unknown, or whether his address is other than the one known to the Court. Everyone has the right to have their case heard in court in their presence and to be able to comment on all of the evidence (Article 38(2) of the Charter of Fundamental Rights and Freedoms, Article 48(2) of the Constitution of the Slovak Republic).
Facts:
The Regional Court in Bratislava upheld the decision of the Migration Office not to grant asylum and to provide subsidiary protection to the Applicant.
The Regional Court in Bratislava, after examining the case, concluded that the administrative authority had decided in accordance with the law on the basis of a sufficient finding and evaluation of the facts and with a proper statement of reasons. The reasons advanced by the Applicant in his next asylum application (fear of persecution and a death threat) were not regarded by the Regional Court as grounds for granting asylum. The Applicant failed to submit documents that would demonstrate the validity of his application. In the opinion of the Regional Court, the Respondent also assessed the matter of refusing to grant subsidiary protection correctly.
The Applicant filed an appeal against the above decision within the statutory period at the Supreme Court of the Slovak Republic, in which he proposed that the contested decision be amended, that the Respondent’s decision be set aside in so far as it did not grant asylum and that the case be referred back to the Respondent. He argued that the Regional Court had denied him the possibility of appearing before the Court in the proceedings, that the court of first instance had reached an incorrect finding of the facts after hearing the evidence, and that the decision of the court of first instance was based on an incorrect legal assessment of the case. The Applicant arguedthat the Regional Court had appointed a guardian for him in the proceedings, despite the fact that this was not necessary. He was staying in the Slovak Republic legally on the basis of a residence permit issued by the Aliens Police Division of the Dunajská Streda Police Force. The Applicant is recorded in the register of the Border and Alien Police Authority of the Police Force, which also records the Applicant as a foreigner who has been given subsidiary protection. The Court thus erred in determining the residence of the Applicant and failed to make use of all available resources.
The Applicant also claimed in the appeal that the statement of reasons in the judgment of the court of first instance was deficient and incomprehensible. It was not clear from the statement how the Court had assessed the appeal against the Respondent’s decision. He objected to the assertion that he had failed to submit any evidence confirming the merits of his application, stating that he had submitted military passbook No X., identification card No X., 10 photographs, a photocopy from the Ministry of the Interior – an incident report, and a warning letter from an S.A. military organisation. The Regional Court had therefore failed to examine his application objectively and comprehensively.
Decision & reasoning:
The Supreme Court of the Slovak Republic set aside the decision of the Regional Court and referred the case back to it.
The Regional Court in Bratislava appointed a guardian for the Applicant without establishing the Applicant’s residence (in the court file there is no mention of whether the Applicant’s current residence had been established by telephone or in writing). The Regional Court ordered a hearing in the case, heard the case and decided in the absence of the Applicant’s guardian.
The issuing of a decision appointing a guardian for a party to proceedings whose residence is not known must be preceded by an examination of whether all of the preconditions for such a procedure are in place and whether another measure might be more appropriate.The Regional Court failed to proceed in this way and the Appeal Court therefore upheld the Applicant’s claim that his procedural rights had been violated.
The Supreme Court of the Slovak Republic agreed with the Applicant’s objection that the statement of grounds in the contested judgment of the Regional Court was incomprehensible. On the one hand, the Regional Court stated in the operative part of the contested judgment that it upheld the Respondent's decision in so far as it did not grant asylum, while on the other hand stating in reasoning that it upheld the Respondent’s decision overall (thus including the statement on the provision of subsidiary protection). There is a further ambiguity in the reasoning of the Regional Court, which argues that the Applicant should not be granted subsidiary protection, although the Applicant was granted subsidiary protection in the case in question, for a period of 12 months from the date on which the Respondent’s decision entered into effect.
Outcome:
Appeal upheld.
The Supreme Court of the Slovak Republic set aside the decision of the Regional Court referred the case back to it.