Slovakia - F.CH. v Ministry of Interior of the Slovak Republic, 26 May 2009, 1Sža/12/2009

Country of Decision:
Country of Applicant:
Date of Decision:
26-05-2009
Citation:
1Sža/12/2009
Court Name:
Supreme Court of the Slovak Republic
National / Other Legislative Provisions:
Slovakia - Ústava Slovenskej republiky (Constitution of the Slovak Replublic) - Art 53
Slovakia - Zákon 480/2002 Zb. o azyle a o zmene a doplnení niektorých zákonov (Act No 480/2002 on asylum and amending certain other acts) - § 8
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Headnote: 

Insofar as the Migration Office relied on the Applicant’s claim that he was a member of the SCNC and recognised this ground for the purposes of the subsidiary protection procedure without disputing the claim of membership of the SCNC, and insofar as the deliberations on the possibility of serious harm resulting from this membership led to the granting of subsidiary protection, it seems illogical that the Migration Office disputed these grounds in the asylum procedure because of the unreliability of the Applicant’s claim regarding membership, concluded that the Applicant had failed to demonstrate a well-founded fear of persecution on this ground, and thus refused to grant him asylum on this basis. 

Facts: 

The Regional Court in Bratislava upheld the decision of the Migration Office to not grant asylum to the Applicant. The Applicant lodged an appeal against this judgment, in which he argued that the Regional Court had arrived at an incorrect finding of fact based on the evidence submitted. He disagreed with the Court’s view that the Migration Office’s decision was issued in accordance with the law, since all of the circumstances of the case, including the evidence submitted and the claims of the Applicant, clearly and unequivocally identified him as a person deserving international protection, as he fulfilled all of the criteria laid down in the Asylum Act, in particular by having demonstrated a well-founded fear of persecution due to his political affiliations in Cameroon. The Applicant pointed out that the grounds on which he had requested asylum in August 2005 had remained unchanged throughout the entire asylum procedure.

The Applicant argued that the Regional Court in Bratislava, in Judgment No 10Saz 83/2005-123 of 17 October 2006, which set aside the previous decision of the Migration Office, had not disputed the grounds of his asylum application, but rather had ordered the Migration Office to deal with the individual claims and facts more thoroughly. The Migration Office did not dispute the Applicant’s membership of the SCNC in subsequent proceedings granting him subsidiary protection. The Applicant had claimed that he should be granted asylum (on political grounds) because of his membership of the SCNC, and the Migration Office did not dispute this.

The Applicant argued that the Regional Court should not have focused only on findings detrimental to him. He claimed that the Court should not have disputed claims and statements that had already been accepted; nor should it have demanded accuracy in the information supplied without accepting a margin of human error, and the fact that a person overcoming a trauma such as he was (beatings, torture, death threats) has the “right” to a certain level of inaccuracy. In this context he referred to post-traumatic stress disorder (PTSD), which commonly affects people – including refugees – who have gone through a range of different experiences. He listed the symptoms of PTSD, which may manifest itself in deliberate efforts to avoid remembering the trauma, including avoiding people, places, situations, thoughts or activities that might call the trauma to mind.

On the basis of the foregoing, the Applicant requested that the judgment of the Regional Court be quashed, the Migration Office’s contested decision set aside and the case referred back to the Migration Office. He requested that expert evidence be taken in the new proceedings to demonstrate the effects of PTSD, which might have had an impact on his behaviour. He also requested that cultural differences be taken into account in his case,  since he comes from an African country where traditions and customs are clearly different from those in Slovakia, and such differences can have an impact on his behaviour (for example, it could explain his failure to provide information on his personal situation, or the inaccuracies in his depiction of colours).

Decision & Reasoning: 

In the decision in which the Applicant was refused asylum, the Migration Office decided at the same time to provide subsidiary protection for a period of 12 months from the date on which the decision entered into effect. This part of the decision was not contested in the Applicant’s appeal, and therefore the Regional Court correctly did not examine it, although it did not escape the attention of the appeal court (with regard to the Applicant’s appeal), that the reason for granting subsidiary protection was a real threat of serious harm in connection with the Applicant’s membership of the SCNC. The Migration Office relied on reports on the country of origin which confirmed cases of unjustified arrest of SCNC members who were not assured due process, many languishing in prison for years without judgment, while in some cases detainees were mistreated badly and tortured.

Given that the Migration Office relied on the Applicant’s claim that he was a member of the SCNC in its decision to grant subsidiary protection, it clearly did not dispute the Applicant’s claim regarding membership of the SCNC, and given that the deliberations on the possibility of serious harm resulting from his membership of the SCNC led to the granting of subsidiary protection, it seems illogical that the Migration Office disputed these grounds in the asylum procedure based on of the unreliability of the Applicant’s claim regarding membership of the SCNC, concluding that the Applicant had failed to demonstrate a well-founded fear of persecution on this ground and refusing to grant him asylum on this basis.

With regard to the assessment of one of the grounds that the Applicant maintained throughout the asylum procedure (that during the funeral of his brother, F., who had been shot by police during a student demonstration in the town of B. on 28.4.2005, the Applicant was arrested by the police and put in prison, as a result of which he expressed a fear of being arrested), which both the Migration Office and the Regional Court assessed as lacking credibility in view of contradictions in the Applicant’s statements over the course of repeated interviews, it should be emphasised that the contents of the file show that the Applicant maintained this ground throughout the administrative procedure.

The individual contradictions on which both the Migration Office and the Regional Court focused may create the impression that the Applicant is an untrustworthy person. Without addressing the fundamental question of whether the Applicant suffers from post-traumatic stress disorder (to which the Applicant’s representative drew attention in the appeal procedure, along with the fact that the contradictions in the statements may be caused by the disorder, which itself resulted from the trauma he experienced), it is not possible, according to the Supreme Court, to unequivocally establish that the Applicant is an untrustworthy person.

Therefore, with reference to the foregoing and with regard to the fact that the Applicant repeatedly mentioned headaches, fear and stress during the administrative procedure (in the interviews), it will be necessary in subsequent proceedings, if the Migration Office does not regard any contradictions stated by the Applicant in repeated interviews to be of a minor nature or to be the result of fear and stress or cultural differences, for the Migration Office to appoint an expert to assess the Applicant’s mental state, and to examine the Applicant’s personality, particularly in terms of whether the Applicant suffers from or has suffered from post-traumatic stress disorderas a result of the trauma he has experienced and whether the disorder might have been the cause of the contradictory claims he made during the administrative procedure.

Outcome: 

The Supreme Court of the Slovak Republic set aside the decision of the Regional Court in Bratislava regarding the refusal to grant asylum to the Applicant, and referred the case back to the Migration Office.

Subsequent Proceedings : 

The Applicant was granted asylum in subsequent proceedings before the Migration Office.

Observations/Comments: 

Bench composed of President of the Bench JUDr. Igor Belko and of the members JUDr. Zdenka Reissenaurová and JUDr. Elena Berthotyová, PhD.