Slovakia - R. v Ministry of the Interior of the Slovak Republic, 22 June 2010, 1Sža/51/2010

Facts:

The Applicant requested international protection out of fear of persecution for avoiding compulsory military service within the framework of which he would have to take part in military actions directed against Kurds, and, secondly, on the ground that he was a sympathiser of the PKK movement, for which he was condemned in his absence to the heavy punishment of 4 years and 6 months imprisonment on the basis of counter-terrorist legislation. The Applicant stated that he had never been persecuted in his country of origin for avoiding military service, but that none of the provisions of the Asylum Act stipulate that a precondition for the success of an application is that the Applicant actually be persecuted, but rather that there exist a well-founded fear of persecution. The Applicant also referred to paragraph 170 of the Procedures and Criteria for Determining Refugee Status under the 1951 Convention and the 1967 Protocol, which states that there are cases where the sole ground for recognising a claim for refugee status is for the applicant to prove that the performance of military service would require his participation in military action contrary to his genuine political and moral convictions or to valid reasons of conscience.  The Applicant argued that he is sympathetic to the ideas of the PKK and, as a soldier in the Turkish army, he would in all probability have to intervene against Kurds, which is directly contrary to his beliefs. Additionally, Kurdish conscripts are often exposed to discriminatory treatment, and desertion or the avoidance of military service are punishable in Turkey.

The Migration Office did not grant asylum to the Applicant, nor did it provide him with subsidiary protection. The Applicant appealed to the Regional Court in Bratislava, which upheld the decision of the Migration Office in so far as it did not grant asylum but referred it back to the Migration Office in so far as it did not provide subsidiary protection.

With regard to the refusal to grant asylum, the Regional Court in Bratislava agreed with the opinion of the administrative authority that the evidence submitted by the Applicant was not reliable, that none of it referred to the crime for which he might be convicted, and that the Applicant’s statement was itself also unreliable due to time inconsistencies. The Applicant appealed to the Supreme Court of the Slovak Republic against the decision of the Regional Court in Bratislava in so far as it upheld the decision of the administrative authority.

Decision & reasoning:

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

According to the appeal court, a country which  calls on its own citizens to perform military service, even in ways which do not allow the possibility of alternative service, provided this is not in breach of the internal legislation of the state, does not of itself, without the addition of further facts, amount to persecution on grounds of race, religion, nationality, membership of a particular social group or political opinion. A refusal to perform compulsory basic military service, which is compulsory in the country of origin, may not, in the absence of other factors, be considered a ground for granting asylum, particularly when such a refusal is not combined with a genuinely manifested political belief or religion. The Supreme Court of the Slovak Republic expressed a similar legal opinion in Judgment No 8Sža 18/2008 of 14.8.2008.

Outcome:

Appeal rejected

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

Observations/comments:

Bench composed of President of the Bench JUDr. Igor Belko and of the members Ing. JUDr. Miroslav Gavalec and JUDr. Elena Berthotyová PhD.

Other sources:

Procedures and Criteria for Determining Refugee Status under the 1951 Convention and the 1967 Protocol, paragraph 170