Spain - Supreme Court, 27 March 2013, Nº 1971/2013
| Country of Decision: | Spain |
| Country of applicant: | Western Sahara |
| Court name: | Supreme Court, Chamber for Contentious Administrative Proceedings, Section 3 (Rapporteur: María Isabel Perelló Doménech) |
| Date of decision: | 27-03-2013 |
| Citation: | Nº 1971/2013 |
Keywords:
| Keywords |
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Accelerated procedure
Description
Prioritisation or acceleration of any examination in accordance with the basic principles and guarantees of Chapter II of the Asylum Procedures Directive, including where the application is likely to be well-founded or where the applicant has special needs or for any of the reasons in Article 23(4) of the Asylum Procedures Directive |
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Effective remedy (right to)
Description
A general principle of EU law now set out in Article 47 of the Charter of Fundamental Rights: "Everyone whose rights and freedoms guaranteed by the law of the Union are violated has the right to an effective remedy before a tribunal in compliance with the conditions laid down in this Article.” “[It] is based on Article 13 of the ECHR: ‘Everyone whose rights and freedoms as set forth in this Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.’ However, in Community law the protection is more extensive since it guarantees the right to an effective remedy before a court. The Court of Justice enshrined the principle in its judgment of 15 May 1986 (Case 222/84 Johnston [1986] ECR 1651; see also judgment of 15 October 1987, Case 222/86 Heylens [1987] ECR 4097 and judgment of 3 December 1992, Case C-97/91 Borelli [1992] ECR I-6313. According to the Court, this principle also applies to the Member States when they are implementing Community law. The inclusion of this precedent in the Charter is not intended to change the appeal system laid down by the Treaties, and particularly the rules relating to admissibility. This principle is therefore to be implemented according to the procedures laid down in the Treaties. It applies to the institutions of the Union and of Member States when they are implementing Union law and does so for all rights guaranteed by Union law.” |
Headnote:
The case refers to an appeal to the Supreme Court brought by the Appellant against the High National Court’s judgment to uphold the Ministry of the Interior's decision to deny asylum. The Appellant is of Sahrawi origin. In the application he claims that one day the Moroccan police forces began to dismantle the Gdeim Izik (El Aaiun) camp, where the Applicant was living, violently suppressing the Sahrawi people who were there.
The appeal progressed because the denial was agreed via an accelerated procedure – similar to a “dismissal” – using Article 21.2o of Act 12/2009 (when someone alleges contradictory, implausible or insufficient infomation, or information that contradicts verified knowledge about the country of origin, clearly showing that their application is unfounded).
The Supreme Court maintained that although this is classed as a “refusal” (“denegación”), in actual fact it has the scant guarantees of “inadmissibility”: the application was rejected without having been fully analysed by the Interministerial Asylum and Refugee Commission or via an urgent procedure.
Facts:
The Appellant is from Western Sahara and claims that whilst staying at the Gdeim Izik (El Aaiún) camp, the Moroccan police forces began to dismantle the camp, violently suppressing the Sahrawi people who were there.The Applicant made reference to the punches, beatings and kicks he received whilst the camp was being dismantled.He also mentioned the atmosphere of repression and the violation of the Sahrawi people’s fundamental rights at the hands of the Moroccan authorities.He further added that he feared the media coverage his arrival in Spain (along with his fellow countrymen) received after the mass suppression in Gdeim Izik, could put him at risk of persecution by the Moroccan authorities in the event he was returned.
Decision & reasoning:
The Supreme Court upheld the appeal as it considered that such a swift rejection of an asylum application demanded judicious and anxious examination, in similar terms to those used in previous case law for inadmissibility reasons under Article 5.6 of the 1984 Asylum Act.
Hence, when there is no plain or obvious incoherence, implausibility or deficiency, the application submitted at the Internment Centre for Foreigners must be processed under urgent procedures with the obligatory involvement of the Interministerial Asylum and Refuge Commission.
The Supreme Court understands that “unacceptable” (“no resulta de recibo”) is an attempt to widen the restricted procedural recourse of Article 21.2.(b) of the current Act 12/2009 under the pretext of its formal definition “refusal” (“denegación”), as a method of quickly dealing with an asylum application where the incoherency or lack of foundation is not absolutely obvious. Furthermore, the Supreme Court upheld that the person concerned would be in a particularly vulnerable situation in the event he was returned to Morocco, because his identity as well as information related to his application for international protection, has been the subject of widespread media coverage.
The Supreme Court annulled the administrative decision that was challenged in the procedure and ordered that the application for international protection submitted by the Appellant be formally accepted and examined with due observance of all the applicable procedural rules; amongst which is that established in Article 46 of Act 12/2009, which ensures special treatment for people who apply for international protection, as aptly pointed out by the UNHCR in its reports - the same reports which were “ignored” by the State.
Effectively, after the asylum application was submitted, the UNHCR requested it be accepted, highlighting in a report that many of the Sahrawi’s that had fled to Spain could suffer reprisals in the event they were returned to Morocco.In spite of this recommendation, the Ministry of the Interior denied the asylum application in accordance with Article21.2 of Act 12/2009, and ordered the Applicant to be repatriated to Morocco, as it deemed the reports on the dismantling of the Gdeim Izik camp to have originated from “clearly pro-independence sources” and that they contained “excessively biased and distorted” interpretations.The authorised administrative body based the refusal of the application on the absence of evidence of systematic and generalised persecution by the Moroccan authorities against the Sahrawi people on the basis of their ethnic origin.Finally, the asylum Applicant’s exposure to the media was deemed to be a circumstance created by the asylum seeker himself. For its part, the High National Court affirmed the State’s decision as it deemed the Ministry of the Interior’s ruling to have “sufficient grounds”.
Outcome:
The appeal was upheld.Therefore, the challenged judgments were annulled and in their place the Appellant’s application for international protection was to be admissible and examined, and the administrative proceedings to continue in accordance with the law.
Observations/comments:
The object of this appeal (nº 2529/2012) is the judgment of 3rd May, 2012, of the 8th Section of the High National Court’s Chamber for Contentious Administrative Proceedings which had dismissed administrative appeal number 153/2011 brought by the Appellant against the Ministry of the Interior’s rulings of 14th and 19th January 2011, which denied the recognition of refugee status.
It highlighted the importance of the judgment in question, as the Supreme Court objected to the Ministry of the Interior’s abuse of a reason for a “refusal” (“denegación”)which in practice has the scant guarantees of “inadmissibility”(“inadmisión a trámite”), particularly in cases where the implausibility, incoherence or deficiency in the narrative are not evident or obvious in the first examination, but need to be assessed and considered in greater depth.Furthermore, it is remarkable that the Supreme Court criticised the Ministry of the Interior for not having given sufficient attention to the information and recommendations provided by the UNHCR during the asylum procedure, and for therefore having violated the Asylum Act.
Finally, it pointed out that on March 27th, 2012, the Supreme Court had ruled (nº 1957/2013) in regard to another application presented by a Sahrawi woman, whose claim of persecution was linked to the violent dismantling of the Gdeim Izik camp by the Moroccan police forces, and the persecution suffered by the Sahrawi people.The Supreme Court upheld the appeal based on the principles previously expressed in the judgment currently under consideration (nº 1971/2013), as well as the fundamental role developed by the UNHCR in the area of asylum procedure and the need to take into account their evaluation of cases.
Relevant International and European Legislation:
Cited National Legislation:
| Cited National Legislation |
| Spain - Asylum Law 12/2009 |
Other sources:
The Supreme Court based its decision on the established case law that had been developed in relation to Article 5.6, sections b) and d) of the 1984 Act (amended in 1994), even though it did not explicitly mention the different rulings.
- UNHCR report of 11th February 2011, which recommended the acceptance of the asylum application.
- UNHCR report of 19th February 2011 which spoke positively about the interested person’s application for re-examination.