Slovakia - Migration Office, 30 March 2010, M. L. v Ministry of the Interior of the Slovak Republic, 1Sža/18/2010

Facts:

The Appellant repeatedly requested international protection on the territory of the Slovak Republic. He stated as the grounds for his request that he wanted to live in Slovakia with his wife and son and that he was afraid that in his country of origin he would be at risk of criminal prosecution, death, inhuman treatment or imprisonment, as he was accused of belonging to Islamic terrorist groups. The Appellant pointed out that deportation would be in breach of Article 3 of the Convention. The Migration Office (the Respondent) decided not to grant asylum to the Appellant and not to provide him with subsidiary protection. The Appellant appealed against this decision to the Regional Court in Bratislava, which, however, upheld the Respondent’s decision. The Appellant appealed to the Supreme Court of the Slovak Republic against the decision of the Regional Court. The Appellant claimed that the Regional Court, instead of reviewing the legality of the Respondent’s decision, itself assessed whether or not the Appellant met the conditions for granting asylum or providing subsidiary protection. He criticised the Regional Court for not providing reasons as to why it did not consider torture or cruel, inhuman or degrading treatment to amount to persecution. The Appellant had been condemned in absentia to life in prison in Algeria for membership of the Salafis – a Salafist group for rebellion and combat, the aim of which was to create a “fundamentalist Islamic state in Algeria”, and this aim was political. The Appellant stated that it was clear from the settled case law of the European Court of Human Rights that there were no exceptions to justify proceedings by a state that were contrary to Article 3 of the Convention. The Respondent in its statement stated among other things that, under Section 13c(2)(d) of the Asylum Act, the Ministry should not provide subsidiary protection where there were grounds for suspecting that an applicant represented a danger to the security of the Slovak Republic or represented a danger to society (subpara. (e)), which is in accordance with Council Directive 2004/83/EC.

Decision & reasoning:

The Supreme Court upheld the decision of the Regional Court in Bratislava.

In the opinion of the Supreme Court, the Regional Court was bound by the scope of the grounds set out by the Appellant in the appeal, and there was nothing to prevent it from approving the facts on which the Respondent had based its decision. In this context, it should be emphasised that, in its decision, a court must not be restricted in questions of fact, within the meaning of Article 6(1) of the Convention (which requires that a judicial body apply full appellate jurisdiction, including the hearing of evidence, if it considers this to be esssential in administrative proceedings), only to what the administrative authority has established, either in terms of the scope of evidence taken or the contents thereof, particularly with regard to relevance, legality and truth.

The Court thus quite independently evaluated the accuracy and completeness of the findings of fact made by the administrative authority and if, in so doing, it found legal shortcomings of a factual or procedural nature, it could respond on the one hand by requiring the administrative authority to eliminate, replace or amend them, or decide to do so itself.

Outside the ambit of the above, the Supreme Court held that persecution within the meaning of Section 8 of the Asylum Act should be held to mean only such threats to life or freedom as are tolerated, encouraged or carried out by the state power. A ground for an asylum application consisting of the effort of the asylum applicant to lead his private and family life with persons who are nationals of the country on whose territory he is seeking asylum is not a relevant ground for granting asylum. Such an application ground is generally based not on the applicant’s claim of persecution or the threat of persecution on one of the grounds defined and listed within the meaning of the Asylum Act, and it is irrelevant in terms of evaluating the grounds of his asylum application.

The Appellant’s attempt for the further assessment of his application as a political application is impossible not only with regard to the presence of contradictions in the claims made by the Appellant, who on the one hand denied that he was a member of a Salafist organisation and on the other hand asks, in view of the aims of this organisation (the achievement of a fundamentalist Islamic state, which he considers a political aim), that his asylum application be assessed as an application based on political grounds. However, the Appellant’s primary application could not be assessed as a political application because the Appellant was condemned in Algeria for criminal acts and not for exercising his political opinion. In this context, the appeal court referred to the established interpretation of the Geneva Convention (1951), according to which a distinction should be drawn between prosecution for political opinions and for politically motivated crimes. Armed attacks and assassinations carried out by a Salafist organisation which the Appellant, moreover, denies belonging to, cannot be considered a means of political struggle affording protection for the asylum applicant in the form of asylum.

It follows from the decision of the European Court of Human Rights that signatory states to the Convention (Convention for theProtection of Human Rights and Fundamental Freedoms) are under an obligation not to hand over/deport a person to a country where he might be at risk of treatment which is contrary to Article 3 of the Convention. In the case in question, however, the subject of judicial review was not the decision to deport the Appellant, but the Respondent’s decision not to grant asylum and not to provide subsidiary protection as requested by the Appellant.

Even if an asylum applicant meets the conditions for subsidiary protection to be provided, he will be excluded from eligibility for subsidiary protection if there are serious grounds for believing that he represents a danger to society or a danger to the Member State in which he is staying. With regard to the Appellant’s judicially proven guilt of activity in a terrorist organisation, it was appropriate in the appeal court’s view for the Respondent to express suspicion over the fear that the Appellant might provide logistical support from the territory of the Slovak Republic to persons suspected of involvement in global terrorist operations for the activities of members of terrorist groups, and therefore the Regional Court did not err when it upheld the legality of the decision not to provide subsidiary protection to the Appellant.

Outcome:

The Supreme Court upheld the decision of the Regional Court in Bratislava.

Other sources:

Committee of Ministers Resolution ResDH (2002)99 of 7.10.2002