Czech Republic - Supreme Administrative Court, 23 March 2011, J.S.A. v. Ministry of Interior, 6 Azs 40/2010-70

Facts:

The applicant claimed asylum on the grounds that he feared persecution due to his political opinion. He claimed to have assisted political prisoners in Cuba. His claim for refugee status was rejected; the MOI reasoned he had not satisfied the standard of proof in establishing his political opinion. In addition, the MOI decided the applicant was excluded from subsidiary protection status according to § 15(a) of the Asylum Act which corresponds to the exclusion clause 1F(c) of the 1951 Refugee Convention, as he had committed ‘acts contrary to the purposes and principles of the United Nations.” It was alleged that when the applicant lived in communist Czechoslovakia he had good relations with, and was an informer for the Cuban government. The MOI, referring to the UN Charter and also the Universal Declaration on Human Rights, claimed that the applicant collaborated with the communist regime and that his intelligence activity resulted in the infringement of the basic human rights of those he spied on, therefore, conditions for exclusion had been fulfilled. The applicant appealed to the Regional Court. The Regional Court upheld the decision, adding that it was irrelevant whether the behaviour of the applicant actually resulted in real harm. The applicant appealed to the SAC.

Decision & reasoning:

According to the SAC the term “acts contrary to the purposes and principles of the United Nations” should be interpreted in the light of Art 1F of the 1951 Refugee Convention and Art 12 and 17 of the Qualification Directive. The Court also relied on international case law and national case law from other jurisdictions. The Court held that the exclusion clause should be interpreted in a restrictive manner. The court relied on UNHCR Recommendations (2003) (see below) and the objective of the 1951 Refugee Convention to provide human rights protection. The Court held that the exclusion clause should not be interpreted to include all human rights abuses that are unable to fit under other exclusion grounds.

Regarding the standard of proof, the Court held there must be “serious grounds to believe” that the person has been guilty of these crimes (acts). This does not require that the person has been convicted of a crime nor does the act need to be listed as a crime in national law. However, the act has to be either specifically designated by the United Nations as an act contrary to the purposes and principles of the United Nations (e.g. terrorist attack) or it needs to constitute a serious and continuous human rights abuse which could be considered to amount to persecution. Therefore it is indeed relevant if the applicant’s actions resulted in real harm. It still needs to be proven that there are “serious grounds to believe” that the person is guilty. The standard of proof required is not as high as in criminal matters; however, the principle of ‘mens rea’ (metal element) has to be present.

The Court concluded that mere intelligence activity as such cannot be taken as acts contrary to the purposes and principles of the United Nations. For such a conclusion the MOI needed to gather more information about the real harm caused by such activity.

Finally, the Court recalled that notwithstanding the exclusion clauses of the 1951 Refugee Convention and the Qualification Directive, there is an obligation under Art 3 of the ECHR not to return any individual to a country where there is a risk of torture or other inhuman or degrading treatment.

Outcome:

The appeal was successful and the Regional Court decision was annulled.

Observations/comments:

Case available on the website of the Supreme Administrative Court - www.nssoud.cz

Other sources:

UNHCR, Guidelines on International Protection No. 5: Application of the Exclusion Clauses: Article 1F of the 1951 Convention relating to the Status of Refugees, 4 September 2003, HCR/GIP/03/05