Czech Republic - Supreme Administrative Court, 29 April 2009, S.H. v. Ministry of Interior, 2 Azs 13/2009-60
| Country of Decision: | Czech Republic |
| Country of applicant: | Kosovo |
| Court name: | Supreme Administrative Court |
| Date of decision: | 29-04-2009 |
| Citation: | 2 Azs 13/2009-60 |
Keywords:
| Keywords |
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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 Grounds/Reasons
Description
Per Article 1A ofthe1951 Refugee Convention, one element of the refugee definition is that the persecution feared is “for reasons of race, religion, nationality, membership of a particular social group or political opinion“. Member States must take a number of elements into account when assessing the reasons for persecution as per Article 10 of the Qualification Directive. |
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Membership of a particular social group
Description
One of the grounds of persecution specified in the refugee definition per Article 1A ofthe1951 Refugee Convention. According to the Qualification Directive, membership of a particular social group means members who share an innate characteristic, or a common background that cannot be changed, or share a characteristic or belief that is so fundamental to identity or conscience that a person should not be forced to renounce it, and that group has a distinct identity in the relevant country, because it is perceived as being different by the surrounding society. Depending on the circumstances in the country of origin, a particular social group might include a group based on a common characteristic of sexual orientation. Sexual orientation cannot be understood to include acts considered to be criminal in accordance with national law of the Member States: Gender related aspects might be considered, without by themselves alone creating a presumption for the applicability of this concept. |
Headnote:
This case concerned an appeal against a decision of the Ministry of Interior (MOI) refusing a claim for international protection from a Kosovan applicant who argued that his special skill as a kick boxer would place him within the meaning of a particular social group and that he should be afforded the protection within the Refugee Convention. It was found that the applicant did not belong to any particular social group and he could find protection in his country of origin.
Facts:
The applicant, from Kosovo, alleged persecution by the Albanian People’s Army. The applicant was forced to join the army due to his success in Kick-boxing; he refused to partake in activities, as it was against his personal beliefs.
In 2007 the applicant received threats from the Albanian People’s Army; he quit his work, went into hiding and finally left the country. Members of Albanian People’s Army then threatened his parents and were searching for him. The applicant alleged persecution on the ground of membership of a particular social group, namely, a group of people whose special abilities can be used in armed conflict.
His application was dismissed by the MOI and he appealed to the Regional Court. The Regional Court also dismissed the appeal, confirming the decision of the MOI. The applicant brought an appeal to the Supreme Administrative Court (SAC).
Decision & reasoning:
Firstly, the SAC considered whether the applicant’s alleged membership of a particular social group could fulfil the definition of a particular social group according Art 10(1)(d) of Qualification Directive. The issue had been examined by the Court in previous case law, for example 5Azs18/2008, where recruits were recognised as a particular social group.
In this case, however, the Court considered that the applicant could not be included in any particular social group because his abilities were not inborn characteristics, there was no common history and finally his ability was not fundamental to his conscience.
Secondly, the SAC considered whether the Albanian People’s Army constituted an actor of persecution in accordance with Art 6 and 7 of the Qualification Directive. The SAC referred to its previous decision in the case of 2Azs49/2006, which confirmed the Albanian People’s Army could be considered an actor of persecution. This judgement established that an applicant should seek protection in his country of origin and only when this is not possible, should he then ask for protection abroad. The SAC stated the applicant should request such protection immediately on return.
Outcome:
The appeal was dismissed and the decision of the Regional Court and Ministry of Interior was upheld.
Observations/comments:
Case available on the website of the Supreme Administrative Court - www.nssoud.cz
Relevant International and European Legislation:
Cited Cases:
| Cited Cases |
| Czech Republic - 2 Azs 49/2006 (Supreme Administrative Court) |
| Czech Republic - 5 Azs 18/2008 (The Supreme Administrative Court) |