France - National Court of Asylum, 7 October 2014, M. B., No13003572

Country of Decision:
Country of Applicant:
Date of Decision:
07-10-2014
Citation:
CNDA, 7 October 2014, M. B., No° 13003572 C+
Court Name:
National Court of Asylum (the “CNDA”)
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Headnote: 

A case may be re-examined in substance by the CNDA, if the facts referred to by the Applicant took place after the last decision of the CNDA or if it is proven that the Applicant could not have been aware of them prior to the previous court decision.

A person who has been a member of an armed unit which has committed systematic violence, and who has not attempted to prevent it or be dissociated from the other members is personally guilty and therefore cannot be granted the refugee status.

Facts: 

The Applicant, a Central African Republic citizen, was one of the security guards of President François Bozizé from 2003 to 2009. The latter is guilty of acts of serious harm committed between 2005 and 2007, according to several trustworthy and consistent geopolitical information sources.

The CNDA had dismissed a previous plea introduced on 11 April 2012. A fresh plea, with new facts was then brought before the Office for the Protection of Refugees and Stateless Persons (the “OFPRA”). It was dismissed by the General Director of the OFPRA on 14 January 2013. The Applicant then approached the CNDA.

Decision & Reasoning: 

On the new facts

The following were all facts that either took place after the last CNDA’s decision, or where it was proven that the Applicant could not have been aware of them prior to the decision of the previous court:

(i) the Applicant’s father’s death;

(ii) the overthrow of President Bozizé’s regime along with the fact that it is credible that his security guards were threatened by the rebels; and

(iii) the European Court of Human Rights asking France to suspend the removal procedure relating to the Applicant.

These enabled the CNDA to rule on the proceedings against the OFPRA’s decision, which had been deemed to be final.

On the admission of the protection status

First, the CNDA considered the extremely violent acts of serious harm and illegal reprisals on civilians, committed by François Bozizé’s Presidential Guard. This was based on the report of the United Nations Human Rights Council published on 19 May 2010, the reports of Human Rights Watch from September 2007 and September 2013, the document from Amnesty International from 30 November 2006 and the Africa Briefing No 55 from International Crisis Group. It was also based on the cases reported by the national press of Central African Republic. Furthermore, the CNDA also referred to articles dated May 2013 from the French newspaper Le Monde and from Radio France Internationale, providing information on violations of human rights that were committed by President Bozizé and his entourage. The CNDA concluded that it was highly unlikely that the Applicant, considering his career path which he had consistently and continually described, never took on more responsibilities than those of a corporal. The CNDA lastly raised numerous contradictions in the Applicant’s description of his daily tasks, which had changed throughout the procedure, evidence of inconsistencies and the applicant’s hesitancy towards certain areas, which nonetheless, concerned his personal experience.

Second, the CNDA observed that the explanations provided by the Applicant to support his fear of persecution were incoherent as well as elusive and were not verifiable by tangible evidence. There were major gaps in the Applicant’s explanation, even though he was invited several times to clarify them at different stages of the procedure. The CNDA could not contemplate him refusing to take part in tasks related to the President’s security, including the repression of civilians suspected of collusion with the rebellion. Lastly, the Applicant’s declarations of his supposedly subversive behaviour that would have brought reprisals, were diverging and unlikely. This was especially so given the responsibilities that he had continued to have, and the advantages he was entitled to, like his training in China, which he received with both the army and President Bozizé’s support.

Third, the fact that the Applicant mentioned his attempted desertions and the threats in case of defection, for the first time, at a late stage in the procedure. The above were both essential elements that had never been developed before at all, in spite of the Applicant having been provided an ample opportunity to come back to them, including in the statement of case replying to the plea raised of its own motion by the CNDA. This prevented the Court from considering that these elements were real. The CNDA deduced from the above that neither the refusals to carry out his superiors’ orders, nor his supposed distance with President Bozizé’s regime were credible. It was held that the Applicant must have been aware of the illegal actions committed by the Presidential Guard, both because of his own confession and also because of the position he had had.

The CNDA concluded that the obvious withholding of information by the Applicant, which contrasted with his precise words on other general topics, along with the fact that his statements did not match with the above-mentioned geopolitical information, was a body of evidence, sufficient for the Court to consider that there were serious grounds to believe that the Applicant, who did not try to prevent systematic violence committed by the members of a special unit within which he had particular responsibilities, is therefore guilty of acts contrary to the purposes and principles of the United Nations. The words of the Applicant in relation to his breaking away from the events, were contradictory and could not be considered sufficiently credible. Therefore, the CNDA held that he should be excluded from the protection status pursuant to Article 1F(c) of the 1951 Convention Relating to the Status of Refugees.

Outcome: 

The CNDA decided to exclude the Applicant from the protection status pursuant to the 1951 Convention Relating to the Status of Refugees.

Observations/Comments: 

This case summary was written by Linklaters LLP.

Other sources cited: 

Recommendation Rec(2005)6 of the Committee of Ministers to Member States, from 23 March 2005, on Exclusion From Refugee Status in the Context of Article 1 F of the Convention Relating to the Status of Refugees of 28 July 1951 and notably, on the fact that (i) exclusion does not require a determination of guilt in the criminal sense but clear and credible information is required to satisfy the “serious reasons” criterion and (ii) consideration must be given to grounds for the exemption from individual responsibility;

Council of State, 21 October 2011, No336576, on the affiliation to a military unit guilty of repressive measures and slaughters being sufficient grounds for the exclusion from the protection status;

JurisclasseurFasc. 233-70, updated on 22 October 2015, page 26, on acts contrary to the purposes and principles of the United Nations.

Article 39 of the Rules of Court of the European Court of Human Rights