Czech Republic - Supreme Administrative Court, 2 August 2012, H. R. v. Ministry of the Interior, 5 Azs 2/2012-49
Country of Decision:
Country of Applicant:
Date of Decision:
02-08-2012
Citation:
5 Azs 2/2012-49
Court Name:
Supreme Administrative Court
Keywords:
Relevant Legislative Provisions:
Council of Europe Instruments > EN - Convention for the Protection of Human Rights and Fundamental Freedoms > Article 3
Council of Europe Instruments > EN - Convention for the Protection of Human Rights and Fundamental Freedoms > Article 8
European Union Law > EN - Qualification Directive, Directive 2004/83/EC of 29 April 2004 > Art 7
European Union Law > EN - Qualification Directive, Directive 2004/83/EC of 29 April 2004 > Art 9 > Art 9.1
European Union Law > EN - Qualification Directive, Directive 2004/83/EC of 29 April 2004 > Art 9 > Art 9.2
European Union Law > EN - Qualification Directive, Directive 2004/83/EC of 29 April 2004 > Art 10 > Art 10.1 (d)
European Union Law > EN - Qualification Directive, Directive 2004/83/EC of 29 April 2004 > Art 10
European Union Law > EN - Qualification Directive, Directive 2004/83/EC of 29 April 2004 > Art 17 > Art 17.1 (a)
European Union Law > EN - Qualification Directive, Directive 2004/83/EC of 29 April 2004 > Art 17 > Art 17.1 (c)
Council of Europe Instruments > EN - Convention for the Protection of Human Rights and Fundamental Freedoms > Article 8
European Union Law > EN - Qualification Directive, Directive 2004/83/EC of 29 April 2004 > Art 7
European Union Law > EN - Qualification Directive, Directive 2004/83/EC of 29 April 2004 > Art 9 > Art 9.1
European Union Law > EN - Qualification Directive, Directive 2004/83/EC of 29 April 2004 > Art 9 > Art 9.2
European Union Law > EN - Qualification Directive, Directive 2004/83/EC of 29 April 2004 > Art 10 > Art 10.1 (d)
European Union Law > EN - Qualification Directive, Directive 2004/83/EC of 29 April 2004 > Art 10
European Union Law > EN - Qualification Directive, Directive 2004/83/EC of 29 April 2004 > Art 17 > Art 17.1 (a)
European Union Law > EN - Qualification Directive, Directive 2004/83/EC of 29 April 2004 > Art 17 > Art 17.1 (c)
National / Other Legislative Provisions:
Czech Republic - Asylum Act (325/1999 Coll.) - Art 12(b)
Czech Republic - Code of Administrative Procedure (500/2004 Coll.) - Art 3
Czech Republic - Code of Administrative Procedure (500/2004 Coll.) - Art 3
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Headnote:
Conclusions on exclusion from protection are to be supported by factual findings and cannot be presumed, especially with an applicant, who through the credibility assessment, is deemed to be untrustworthy by an administrative body. Belonging to the army under Saddam Hussein might, together with the Sunni religion of the applicant, be understood as a reason for well-founded fear of persecution because of membership of a particular social group.
Facts:
A member of the army of Saddam Hussein fled to the Czech Republic where in 2007, he applied for asylum along with all of his family after his son had been kidnapped, and he had been blackmailed and had suffered repeated physical attacks from Shiite militia. The Ministry of the Interior dismissed the application for asylum for all persons, but granted subsidiary protection to the applicant’s wife and children. It was then stated that the applicant himself was excluded from the protection since he had committed acts that were contrary to the purposes and principles of the UN and crimes against humanity. The decision was revoked, partly by the Regional Court and then in its entirety by the Supreme Administrative Court.
Decision & Reasoning:
The administrative body erred on the one hand when it did not consider the testimony of the applicant to be credible for the purposes of evaluating fear of persecution, and on the other hand it considered it to be proven (for the purposes of exclusion from protection) that the applicant had been involved in the army, which is why, according to the administrative body, it is necessary to conclude that his participation in crimes against humanity is contrary to the purposes and principles of the UN.
No reasons for exclusion flow from the proof documented in the administrative records. Moreover, the administrative body and the Regional Court erred when they did not consider the well-founded fear of persecution that the applicant linked to his involvement in the army under the previous political regime. Proof submitted by the applicant was not disputed and therefore it may be considered to be proven that the afore-mentioned person is a citizen of Iraq, had been involved in the army of Saddam Hussein and follows the Sunni religion. It may therefore be concluded that the applicant’s position can be classified as belonging to a particular social group.This group can be “quite easily defined, as these are the persons who, before the fall of Saddam Hussein’sregime, were involved in the Iraqi army and in other armed bodies, or are those who participated in exercising power. This is why they are perceived by the rest of the population to be supporters or representatives of the former regime, especially when they also follow the Sunni religion.This is a group of persons that may be quite accurately identified as they have identical or similar status and these persons could be exposed, according to the mentioned recommendation of the UNHCR, to the risk of persecution by armed groups and attacks, something that the Iraqi government is not able to prevent at the moment.”
The administrative body and the court should have addressed these reasons for well-founded fear of persecution. The conclusion of the administrative body that the reason for possible persecution was revenge upon the applicant for acts he had committed is also in contradiction with the law. Reasons for persecution, regarding meeting the definition of well-founded fear, are completely irrelevant.
Outcome:
Judgment and decision of the administrative court is revoked.
Observations/Comments:
The decision of the Supreme Administrative Court literally quotes a part of the UNHCR recommendation on the international protection needs of Iraqi asylum seekers, which points out the very problematic status of these persons and their persecution.
Other sources cited:
Recommendation of the UNHCR on International Protection Needs of Iraqi Asylum Seekers (2007)
Case Law Cited:
Czech Republic - Supreme Administrative Court, 4 Azs 103/2007-63
Czech Republic - Supreme Administrative Court, 5 Azs 36/2008-119
