Czech Republic - Supreme Administrative Court, 25 January 2011, R.S. v Ministry of Interior, 6 Azs 36/2010-274

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Headnote: 

According to the Qualification Directive, forced marriage, along with domestic violence and issues of faith, can be considered as persecution on a cumulative basis having regard to the situation in the country of origin.

Facts: 

The applicant, a women of Uzbek nationality from Kyrgyzstan, applied for international protection in the Czech Republic on the grounds that she was in a forced polygamous marriage. She also feared domestic violence from her husband due to her decision to change her religion.

The Czech Ministry of Interior (MOI) dismissed her application. The applicant appealed to the Regional Court. However this action was dismissed. The Court stated that Kyrgyzstan would be able and willing to prevent the persecution or the serious harm, including domestic violence, which might be a threat to the applicant in case of her return to her country of origin. The applicant appealed to the Supreme Administrative Court.

The applicant, inter alia, argued that insufficient consideration had been given to the question of whether living in a forced and a bigamous relationship against her religious beliefs could be taken as a restriction on her religious freedom. Moreover, if the religious rules held and enforced by her husband’s family, which were the opposite of her own religious beliefs, were a restriction on her religious freedom. 

Decision & Reasoning: 

I. The fact, that the applicant was forced to marry or to remain in the marriage against her will, can be considered as persecution in concurrence with other violations of human rights (for example domestic violence) and according to the situation in the country of origin [Art 9.1(b) of the Qualification Directive].

II. When assessing the situation in the country of origin it is necessary to consider if there is accessible and efficient protection against domestic violence for women in a similar situation to the applicant, as the second legally unrecognized wife in the polygamous marriage, who was forced to remain in the marriage against her will and who was also the victim of domestic violence [Art 6 and Art 7 of the Qualification Directive].

III. There must be a causal nexus between acts of persecution and persecution grounds; however the persecution grounds do not have to be necessarily connected to actors of persecution (husband) but must be connected to actors of protection. The condition of persecution for asylum relevant (religious) grounds can therefore be met, if authorities that can or should offer protection from behavior the applicant fears fail to do so for one of the asylum relevant grounds (persecution grounds).

Outcome: 

The appeal was successful and the decision of Regional Court dismissed.

Observations/Comments: 

Judgment of the Supreme Administrative Court, No. 6 Azs 36/2010-274 available at www.nssoud.cz

Published in 6/2011 of The Law Reports and Opinions Collection of the Supreme Administrative Court (Sbírka rozhodnutí Nejvyššího správního soudu)

Other sources cited: 

US Department of State Annual Report on Human Rights Practices in 2005 and 2008

Case Law Cited: 

Czech Republic - 5 Azs 36/2008-119 (Supreme Administrative Court)