Czech Republic - Supreme Administrative Court, 13 March 2009, H.A.Š. v Ministry of Interior, 5 Azs 28/2008-68

Country of Decision:
Country of Applicant:
Date of Decision:
13-03-2009
Citation:
n.5 Azs 28/2008-68
Court Name:
The Supreme Administrative Court
National / Other Legislative Provisions:
Fourth Geneva Convention 1949
Fourth Geneva Convention 1949 - Art 3
Additional Protocol I 1977
Additional Protocol I 1977 - Art 1
Additional Protocol II 1977
Additional Protocol II 1977 - Art 1
Additional Protocol II 1977 - Art 50
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Headnote: 

The case concerned an application for international protection by an Iraqi national. The application was dismissed on the grounds of a failure to establish that his life or person was threatened by reason of indiscriminate violence. The applicant failed to demonstrate individual risk.  

Facts: 
The applicant, an Iraqi Kurd, applied for asylum in the Czech Republic in 2007. He claimed that due to his brother´s collaboration with Saddam Hussein´s regime, he would be persecuted by members of the Kurdish community on return to Iraq.

The Ministry of Interior (MOI) refused his asylum application, doubting his credibility primarily because of inconsistency in his account.

The applicant appealed to a regional court. However, the regional court dismissed the appeal and upheld the conclusions of the MOI. The applicant then lodged an appeal to the SAC. In this appeal, the applicant claimed he would face a real risk of serious harm consisting of a serious and individual threat to  his life or person by indiscriminate violence in a situation of international or internal armed conflict (§ 14(a)(2)(c) Asylum Act which corresponds with Art 15(c) of the Qualification Directive).
 
Decision & Reasoning: 
The SAC interpreted the meaning of the phrase “a risk of serious harm and individual threat to a civilian's life or person by reason of indiscriminate violence in situations of international or internal armed conflict.”

The Court held that in order to establish this type of ‘serious harm’ a three-stage test must be satisfied, as set out below:

1. Is there an internal or international armed conflict in the country of origin?
The definition of an armed conflict includes both armed conflicts among government authorities and armed organised groups (vertical conflicts), as well as, armed conflicts among armed organised groups, neither of which represent government authorities (horizontal conflicts).

2. Is the asylum applicant a civilian?

A civilian is every person who is not the member of the armed forces of one of the conflicting parties.

3. Is the applicant’s life or person threatened by reason of indiscriminate violence?

-Exceptionally the applicant may, solely on account of his presence on the territory of that country or region, face a real risk of being subjected to that threat (the Court described this situation as a ‘total conflict’).

-It is appropriate to also take into account other factors - for example the more the applicant is able to show that he is specifically affected by reason of factors particular to his personal circumstances, the lower is the level of indiscriminate violence required for him to be eligible for subsidiary protection (sufficient level of individualisation).

All three elements of the test outlined must be met for subsidiary protection to be granted in a situation of indiscriminate violence.

According to the final decision of SAC, the applicant fulfilled the first two conditions.  It was accepted that Iraq was in a situation of international or internal armed conflict and that the applicant was a civilian. However, according to the Court, the applicant’s life or person was not threatened by reason of indiscriminate violence. The situation in Iraq could not be classified as a “total conflict,” where a civilian may solely on account of his presence on the territory of that country or region, face a real risk of being subjected to that threat. The applicant was not a member of a group that was at risk and therefore did not establish a sufficient level of individualisation.
 
Outcome: 

The appeal was dismissed. 

Observations/Comments: 

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

Other sources cited: