Slovakia - M. B. v Ministry of the Interior of the Slovak Republic, 9 April 2013, 1Sža/10/2013

Country of Decision:
Country of Applicant:
Date of Decision:
09-04-2013
Citation:
1Sža/10/2013
Court Name:
Supreme Court of the Slovak Republic
National / Other Legislative Provisions:
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
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) - § 9
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) - § 13(b)
Slovakia - Ústava Slovenskej republiky (Constitution of the Slovak Replublic) - Art 53
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Headnote: 

“The applicant bears the burden of the argument against the administrative authority, hereinafter referred to as the burden of proof. It is not, however, the duty of the asylum applicant to demonstrate his persecution by means other than his own credible testimony.”

“Where the testimony of an applicant for international protection submitted during proceedings can be identified as consistent and in accordance with the information available on the country of origin, in spite of minor inconsistencies, then such testimony must be relied on.”

Facts: 

The Applicant requested international protection on the ground of fearing for his life and on family grounds. In his country of origin, he worked as a security guard for President Gadaffi, where women also worked. He was classified as a soldier with the rank of “arif” – lieutenant. The unit which protected the President was called the Sria al Hirasa. He said that the President also had female security guards who inspected women in checks.

On 4 May 2003, the Applicant was in a car crash in Libya, after which he travelled legally to Switzerland, where he was operated on. He then travelled to Piešťany in the Slovak Republic for treatment. In 2006, he married a Slovak citizen. He lived in Slovakia for eight years. In April 2011, he applied to the Libyan Embassy for an extension of his passport, as it expired in May 2011. There were delays in handling his request and therefore he asked his brother in Libya for assistance. Due to the delays at the Libyan Embassy he missed the deadline for extending his residence permit in the Slovak Republic.

The Applicant stated in the grounds for his application that there had been a change of regime in Libya, and that people such as himself (a presidential security guard) were being killed on the streets. He came from Gadaffi’s home town, and therefore he could not feel safe in Libya. His father had been thrown out of work and his relatives had lost their possessions. He also came from Gadaffi’s tribe. He had been to Libya three times since 2003, the last time in 2012.

The Migration Office, in decision ČAS: MU-227-23/PO-Ž-2012 of 3 August 2012, decided not to grant asylum and not to provide subsidiary protection to the Applicant. The Applicant filed an appeal against the decision of the Migration Office with the Regional Court in Bratislava. The Applicant presented evidence in the proceedings before the Court,  in order to prove that he had worked in the Presidential security guards. The Court heard no expert evidence for the purpose of checking the authenticity of the proof, and did not even consider it necessary to hear the political views of the Applicant. Although the Court did not address the submitted evidence because the Applicant had not submitted it until the proceedings before the Court, the Court noted that one of the passes submitted referred to the rank of “corporal”, that the date of issue of the pass was 7 June 2010 although the Applicant had last been in Libya in February 2010, that the name of the “Sria al- Hirasa” was not mentioned in any of the passes and the Applicant had stated in the proceedings before the Migration Office that he had no identity document other than a passport. The Regional Court completed the taking of evidence by searching for reports on Gadaffi’s presidential guard. It determined that all of the reports indicated that the presidential guard was composed exclusively of women.

The Regional Court upheld the decision of the Migration Office. The Applicant filed an appeal with the Supreme Court of the Slovak Republic against this decision.

Decision & Reasoning: 

The Supreme Court upheld the Applicant’s appeal. The Supreme Court stated that the administrative authority was under an obligation, when in doubt, to collect all available evidence that would refute or dispute the credibility of an asylum applicant (Judgment No 6 Azs235/2004-57 of the Supreme Court of the Czech Republic of 21 September 2005). In so far as the Migration Office concluded that the Applicant’s work in Gadaffi’s guard was doubtful on the grounds that the Applicant had failed to state the name of Gadaffi’s security unit and had failed to mention that women from the so-called "Amazons" special unit worked in Gadaffi’s guard, and concluded from this that the claim was not credible, the Supreme Court regarded the conclusion as premature.

“The task of the Migration Office in further proceedings would be to assess the veracity and content of the evidence presented by the Applicant, to adopt an opinion on the report from the press conference, on whether men were also members of the security guards and to assess the threat of persecution for political reasons. The Office must also assess the Applicant’s loyalty to Gaddafi and membership of Gaddafi’s tribe.”

Outcome: 

Appeal upheld

The Supreme Court of the Slovak Republic amended the decision of the Regional Court, setting aside the decision of the Migration Office and referring the case back to the Office.

Observations/Comments: 

Bench composed of President of the Bench JUDr. Igor Belko and of the members Ing. JUDr. Miroslav Gavalec and JUDr. Elena Berthotyová PhD.

Case Law Cited: 

Czech Republic - Supreme Court, 21 September 2005, 6 Azs235/2004-57