Czech Republic - Supreme Administrative Court, 16 September 2008, N.U. v Ministry of Interior, 3 Azs 48/2008-57

Country of Decision:
Country of Applicant:
Date of Decision:
16-09-2008
Citation:
3 Azs 48/2008-57
Court Name:
Supreme Administrative Court
National / Other Legislative Provisions:
Czech Republic - Asylum Act (325/1999 Coll.) - Art 2(7)
Czech Republic - Asylum Act (325/1999 Coll.) - Art 14a(1)
Czech Republic - Asylum Act (325/1999 Coll.) - Art 14a(2)
Czech Republic - Asylum Act (325/1999 Coll.) - Art 16(1)(g)
Czech Republic - Constitutional Act (No. 1/1993 Coll.) - Art 1(2)
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Headnote: 

Non-state actors (private individuals) can be actors of persecution in relation to persons entitled to asylum, as well as actors of serious harm in relation to persons entitled to subsidiary protection.

Facts: 

The applicant from Kyrgyzstan applied for international protection in the Czech Republic because of domestic violence perpetrated by her husband. She was beaten and mentally maltreated by him for at least five years. The Czech Ministry of Interior (MOI) dismissed the application as manifestly unfounded according to the provision of Art 16(1)(g) of the Asylum Act. The MOI stated that the applicant did not provide grounds upon which it could be concluded a risk of serious harm existed according to the provisions of Art 14(a) of the Asylum Act.

Subsequently the applicant appealed to the Regional Court. The Court dismissed her appeal and confirmed the decision of the administrative body. It also confirmed the MOI finding, that the applicant did not present any relevant grounds in her asylum claim.

The applicant brought a cassation complaint to the Supreme Administrative Court. She argued that her case should be judged according to the provision of Art 14(a) of the Asylum Act, in connection with Art 1(2) of the Constitution, Art 1 of 1951 Refugee Convention and Art 3 of European Convention on Human Rights.

Decision & Reasoning: 

The Supreme Administrative Court stated that was necessary to interpret the issue of actors of persecution and serious harm. The Court found that the manner in which the Qualification Directive was transposed was inadequate in the way it dealt with the issue of acts carried out by private individuals in relation to actors of persecution and of serious harm.

The Court concluded that private individuals can be actors of persecution according to the provision of Art 12 of the Asylum Act, as well as actors of serious harm according to the provision of Art 14(a) of the Asylum Act.

The Court concluded:

I. It is necessary to interpret the provision of Art 2 (7) of the Asylum Act (in force until the 20th December 2007) in agreement with Art 6 of the Qualification Directive (2004/83/EC). Concerning the nature of actors of persecution or serious harm, the definition contained in this provision will be applied also to persons entitled to supplementary protection. In other words, non-state actors (private individuals) can be actors of persecution in relation to persons entitled to asylum, as well as actors of serious harm in relation to persons entitled to supplementary protection.
The Court also stated, that:

II. The interpretative rule of Art 7.2 of the Qualification Directive (2004/83/EC) will be applied when considering the question of whether there is sufficient protection from serious harm from the state where the applicant is to be returned. According to this rule, it is generally considered that protection is provided if the state, or parties or organisations controlling the state, take reasonable steps to prevent the persecution or serious harm. This should be done, among others, by the establishment of an effective legal system for the detection, prosecution and punishment of acts constituting persecution or serious harm.

The Court held that the applicant would have access to such protection and dismissed the complaint.

Outcome: 

The cassation complaint was dismissed.

Observations/Comments: 

Judgment of The Supreme Administrative Court, No. 3 Azs 48/2008 – 57 available at www.nssoud.cz

Case Law Cited: 

Czech Republic - 2 Azs 66/2006-52 (Supreme Administrative Court)