Slovakia - Migration Office, 13 August 2013, S. H. M. v Ministry of the Interior of the Slovak Republic, 1Sža/20/2013

Country of Decision:
Country of Applicant:
Date of Decision:
13-08-2013
Citation:
1Sža/20/2013
Court Name:
Supreme Court of the Slovak Republic
Relevant Legislative Provisions:
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) - § 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: 

Dismissal of the Appellant’s claim that the findings of fact were incorrect beause the Respondent had failed to examine relevant grounds for assessing the  existence of serious harm from the perspectives listed under Section 2(f)(1) and (2) of the Asylum Act, and specifically the risk of execution.

As the Appellant did not claim, either during the administrative or the judicial proceedings (before the Regional Court), that criminal proeedings were under way against him in his country of origin, or that he faced the threat of execution, torture, inhuman or degrading treatment, the Respondent could not be criticised for approaching the hearing of evidence in relation to his claims concerning the bad security situation in his country of origin, and to that end had focused on assessing the security situation in the country of origin and had not dealt with the risk of execution in the country of origin.

Facts: 

The Appellant had been granted subsidiary protection due to the threat of serious harm in the form of a serious and specific risk 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 Migration Office did not examine the risk of other forms of serious harm, but limited itself only to an assessment of the general security situation in the city of M., from where the Appellant came. The Appellant appealed to the Court against this decision, claiming an error as to the facts, the existence of another defect in the proceedings and a contradiction with the contents of the files.

The Regional Court in Bratislava upheld the decision of the Migration Office.

The Appellant appealed against this decision on the grounds that the court of first instance had arrived at an incorrect finding of the facts on the basis of the evidence taken, and had not fully determined the facts beause it had not heard the proposed evidence necessary for establishing the key facts, the proceedings had a further defect possibly resulting in an incorrect decision in the case and the decision was based on an incorrect legal assessment of the case. The Appellant claimed that there was a need to examine the existence of serious harm within the meaning of all definitions thereof, and a need for an individual assessment of the application. He claimed that the Respondent had dealt only with the general security situation in the Appellant‘s country of origin with regard to the internal armed conflict in the country and had paid insufficient attention to the other grounds or assessments of serious harm from the perspectives listed under Section 2(f)(1) and (2) of the Asylum Act, as well as the risk of execution.

Decision & Reasoning: 

The Supreme Court rejected the Appellant’s appeal and upheld the decision of the Regional Court in Bratislava, which had confirmed the decision of the Migration Office.

It was clear from the Respondent‘s administrative file that the Respondent had taken the appropriate evidence in the proceedings procedurally with the legal evidence from which it assessed and described the security situation in the Appellant’s country of origin, specifically in his last place of residence, focusing on an assessment as to whether there had been a change in the circumstances that had led the administrative authority to provide subsidiary protection to the Appellant. It established that the security situation in the city of M. and its surrounding area had improved due to suppression of the Al Shabab rebel movement in August to the extent that the risk of serious harm (resulting from indiscriminate violence during an internal armed conflict) had disappeared. The Respondent’s findings concerning the fact that the security situation in the city of M. had altered for the better were supported by the taking of evidence, which the Respondent took for the purpose of assessing the security situation in the city of the Appellant‘s last permanent residence in his country of origin, with reference to the sources it had drawn on. The Respondent also, in the opinion of the appeal court, concluded correctly that the fear of indiscriminateviolence during internal armed conflictin the city of M. was not well-founded in the Appellant’s case. The appeal court also rejected the claim that the Respondent had arrived at an incorrect finding of the facts by not dealing with other grounds relevant for assessing the existence of serious harm from the perspectives listed under Section 2(f)(1) and (2) of the Asylum Act, and specifically the risk of execution.

As the Appellant did not claim, either during the administrative or the judicial proceedings (before the Regional Court), that criminal proeedings were under way against him in his country of origin, or that he faced the threat of execution, torture, inhuman or degrading treatment, the Respondent could not be criticised for approaching the hearing of evidence in relation to his claims concerning the bad security situation in his country of origin and for that purpose had focused on assessing the security situation in the country of origin and had not dealt with the risk of execution in the country of origin. In this context, the appeal court drew attention to the fact that the Respondent had an obligation to establish the facts of a case under Section 32 of the Act Section 71/1967 (Administrative Procedure Code) only within the scope of the grounds set out by the Applicant in the course of the administrative proceedings, and it could not be inferred from any of the provisions of the Asylum Act or the Administrative Procedure Code that the Respondent had an obligation to take evidence for the purpose of establishing facts not asserted by a person applying for subsidiary protection or an extension thereof.

Outcome: 

The Supreme Court upheld judgment no. 9 Saz/5/2013-40 of the Regional Court in Bratislava of 3 Apríl 2013.

Case Law Cited: 

Slovakia - Supreme Court, 20 May 2010, 8Sžh/1/2010