Case summaries

The case examined the allegations of five Afghan nationals that their detention conditions in Pagani detention centre were in violation of Article 3 of the Convention, that they did not have access to an effective remedy (Article 13) and that they were deprived of their liberty and security as well as of their right to have the lawfulness of their detention decided speedily by a Court (Article 5 para 4). 

When assessing the application for international protection the Ministry of Interior (MI) did not take into account the Applicant’s youth, lack of education and background. The MI did not conduct the procedure and pose questions in a manner that was suitable to the Applicant’s age and personality.

The country of origin information that the Applicant submitted only in his appeal against the decision should be accepted as this is generally available information that MI could have obtained on its own.

The notion of “well-founded fear” has not been precisely defined. However, it is commonly accepted that it must necessarily contain two elements: a subjective element (the party has a real and credible fear of persecution) and an objective element (this fear has a basis in reality).  A person applying for refugee status should present facts and possibly evidence confirming that they were persecuted in the past or that they fear persecution upon returning to their country of origin. Other reasons for a foreigner leaving their country of origin or fearing a return to their country of origin are immaterial as regards recognition of their refugee status.

It is expected and necessary that persons fearing persecution should fully and continuously cooperate with the authorities handling their case.

Since the life, basic safety and livelihood chances of people are involved, based on the above described amount and nature of danger (in such cases naturally the actual danger need not and cannot be undoubtedly proved) the very likely occurrence of persecution, harm or other significant detriment cannot be risked.

In relation to the internal protection alternative, the Applicant must have family or kinship ties, or his/her basic livelihood and accommodation must be provided by other means in a certain part of the country.

Instead of rejecting the application, the Court granted subsidiary protection status to the single female Applicant and her minor children, as their return to the country of origin would lead to the risk of serious harm (indiscriminate violence).

The age of the child and the mental state of the Applicant as well as the ban on more detailed questioning on the reasons for fleeing in the initial police interview should have been taken into account to a greater extent when assessing the assertion of flight. The lack of discussion of these aspects represents a failure to investigate several decisive points, which made the decision by the Asylum Court arbitrary and therefore unconstitutional

A decision to transfer the applicant to Italy, solely based on Italy’s failure to respond to a request to take back the applicant, was insufficient, arbitrary and violated the applicant’s right to equal treatment. The Asylum Court had neither listed any criteria of the Dublin II Regulation that would indicate that Italy was responsible nor addressed the issues concerning the travel route of the applicant and his long stay in Greece.

The applicant stated that he had been a member of the Taliban amongst other things. The Federal Asylum Agency (BAA) declared that the expulsion of the applicant to Afghanistan was permissible. The Asylum Court acted on the assumption of the existence of the ground for exclusion from asylum of ”Crimes against humanity“ and therefore granted neither asylum nor subsidiary protection, but revoked the expulsion to Afghanistan. The Constitutional Court allowed the appeal by the applicant against this decision as sufficient findings were not established in relation to the assumed crime against humanity.

There is not currently an indiscriminate conflict in Afghanistan (as a whole, or in any province) within the meaning of Article 15(c). Internal protection is in general possible in Kabul; however it is unreasonable to expect certain categories of women to seek internal protection within Afghanistan.

The case concerns a recognised as a refugee in the United Kingdom, who was to be deported in the interests of national security to Jordan. The UK Government obtained assurances from Jordan that he would not be subjected to ill-treatment and would be tried fairly by the Jordanian State Security Court. However the applicant alleged that, if deported to Jordan, he would be at real risk of ill-treatment and an unfair trial.