Slovakia - M. I. R. v Ministry of the Interior of the Slovak Republic, 21 August 2013, 9 Saz/16/2013

Country of Decision:
Country of Applicant:
Date of Decision:
21-08-2013
Citation:
9 Saz/16/2013
Court Name:
Regional Court in Bratislava
Relevant Legislative Provisions:
National / Other Legislative Provisions:
Slovakia - Civil Procedure Code - Section 250j
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) - § 19(a)
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(a)
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) - § 2(f)
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) - § 20
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Headnote: 

The Respondent erred if, in a procedure on the extension of subsidiary protection, it failed to examine the threats to safety for repariated Afghan nationals. The Respondent,within the context of finding the facts, had completely failed to examine evidence of the existence of serious harm within the meaning of Section 2(f)(2) of the Asylum Act (torture or inhuman or degrading treatment or punishment), and thus failed to address the question of whether, in the event of the Appellant returning (as a person who had left Afghanistan) to his country of origin, he would not also be at risk of this form of serious harm. The Respondent took no evidence in respect of this, which is contrary to the provisions of Section13a of the Asylum Act. Moreover, its actions were thus contrary to its own established practice, whereby, in (standard) proceedings on applications for international protection, it routinely ascertains the behaviour of state authorities in relation to unsuccessful asylum applicants or other groups of repatriated persons returning to their country of origin. 

Facts: 

The Appellant had been granted subsidiary protection on the grounds of a risk of serious harm in the form of a serious and specific threat to life or the inviolability of the person as a result of indiscriminate violence during an international or internal armed conflict. The Appellant was requesting an extension of subsidiary protection, as the grounds on which he had been provided with subsidiary protection persisted. The Migration Office, however, decided not to extend the Appellant‘s subsidiary protection, taking it as proven that the security situation in the Appellant’s country of origin had altered to the extent that the Appellant was no longer at risk of serious harm due to indiscriminate violence during internal armed conflict.

The Appellant appealed to the Court against this decision, seeking to have it overturned on the grounds of an error as to the facts and a contradiction between the decision and the contents of the files.

He claimed that the Respondent had failed to examine the question of returning unsuccessful asylum applicants and had failed to pay sufficient attention to the threats he allegedly faced as a journalist. 

Decision & Reasoning: 

The Regional Court examined the application and decided that the decision of the Migration Office must be set aside.

Concerning the contradiction between the decision and contents of the files, the Regional Court stated that this claim was not well-founded, as there was no contradiction between the established facts of the case and the contents of the contested decision.

Concerning the claim of an error as to the facts, it stated that this claim was well-founded, but only in relation to the question of determining the security risks for repatriated Afghan nationals (since the Appellant’s work as a journalist had been assessed negatively in the previous proceedings). The object of the Respondent’s proceedings was to assess whether the preconditions for an extension of subsidiary protection for the Appellant still applied. It was therefore the task of the Respondent to assess whether or not there would be a risk of serious harm if the Appellant returned. Section 2(f) of the Asylum Act clearly defines what is understood by the concept of “serious harm”. It is clear from the contents of the Respondent’s file and from the contents of the contested decision that the Respondent had sought out in the proceedings and placed on file reports on the Appellant’s country of origin, focusing on the security situation in the capital city of K., and in Afghanistan as such. Facts determined, assessed and verified in this way, however, are assuring only in relation to the grounds of serious harm within the meaning of Section 2(f)(3) of the Asylum Act. The Respondent, in determining the facts, had completely failed to examine evidence of the existence of serious harm within the meaning of Section 2(f)(2) (torture or inhuman or degrading treatment or punishment), and thus failed to address the question of whether, in the event of the Appellant returning to his country of origin, he would not also be at risk of this form of serious harm. The Respondent took no evidence in respect of this, which is contrary to the provisions of Section13a of the Asylum Act. Moreover, its actions were thus contrary to its own established practice, whereby, in (standard) proceedings on applications for international protection, it routinely ascertains the behaviour of state authorities in relation to unsuccessful asylum applicants or other groups of repatriated persons returning to their country of origin. The Court found that the behaviour of the Respondent amounted to an error as to the facts.

Outcome: 

The Regional Court in Bratislava set aside the decision of the Migration Office and referred the case back to the Migration Office.

Subsequent Proceedings : 

Repeated proceedings before the Migration Office on the extension of subsidiary protection.