Hungary - Metropolitan Court of Public Administration and Labour, 8 June 2016, 30.K.31.507/2016/8

Country of Decision:
Country of Applicant:
Date of Decision:
08-06-2016
Court Name:
Metropolitan Court of Public Administration and Labour
National / Other Legislative Provisions:
Hungary - Act CXL of 2004 on the general rules of administrative proceedings and services Article 50
Hungary - Act CXL of 2004 on the general rules of administrative proceedings and services Article 72
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Headnote: 

The Court quashed the decision of the Office of Immigration and Nationality (OIN) and ordered a new procedure because of the failure to thoroughly examine every claim presented by the Claimant and the incorrect application of the res iudicata principle.

Facts: 

The Claimant is a Kurdish national, a citizen of Turkey. He had been detained previously on two occasions for deserting the Turkish army and for being a member of the Kurdistan Workers’ Party (PKK). He had also been captured by the Turkish army once and personally threatened.

The present case was the 4th time the Claimant applied for asylum in Hungary. In the relevant previous cases the OIN ruled that he may not be granted any form of international protection but shall not be returned to Turkey because of the inhuman prison conditions (overcrowding, abuses). This decision was challenged at the Court, but the OIN withdrew  its decision and started a new procedure, the result of which declared that he could be returned to Turkey because prison conditions are not inhuman after all and the violence in the region of the Claimant does not reach such a level that would suggest that the principle of non-refoulement  would be breached.

The Claimant did refer to the persecution he would probably face in Turkey because of his nationality and for having deserted the army, but these claims were excluded from the procedure because they had already been referred to in the previous procedures and were thus considered res iudicata and were not examined again. 

Decision & Reasoning: 

The Court found the appeal to be well-founded.

The Court emphasised that under Article 50 of the Act on the general rules of administrative proceedings and services (Act CXL of 2004) it is the duty of the authority to thoroughly examine the case in question and to find out the relevant facts in order to be able to draw up a correct factual basis for the given claim. Article 72 of the same Act also requires the authorities to provide a well-founded, clear and sound reasoning for the decisions they take where all relevant facts are considered and the way a decision was reached is explained. The Article also requires that reasons shall be provided as to why facts, claims or evidence relating to the case had been excluded from the deliberation procedure.

The Court ruled that the OIN failed to provide a well-founded reasoning as to why it did not properly assess claims based on the nationality of the Claimant or the fact that he deserted the army in the first procedure. Referring to this decision in the procedures that followed as res iudicata is therefore unlawful since these claims were not assessed properly, hence the OIN did not meet its legal obligations.

The Court emphasised that the proximity of the Islamic State to the hometown of the Claimant, the fact that the applicant had been threatened by the army, that his brother is in detention, the situation of the Kurdish population in Turkey and the atrocities they face need to be clearly assessed. When it comes to the previous prison sentences the Claimant had to serve, the Court emphasised that under Article 4 (4) of the recast Qualification Directive, previous persecution may also be the foundation of a well-founded fear.

The Court ordered the OIN to examine all claims of the Claimant and take every piece of relevant information into account. It also ruled that facts shall be deliberated and that decisions shall be duly reasoned. 

Outcome: 

Appeal granted, decision quashed, new procedure ordered.