Slovenia - Supreme Court of the Republic of Slovenia, 2 September 2015, Judgment of I Up 47/2015

Country of Decision:
Country of Applicant:
Date of Decision:
02-09-2015
Citation:
I Up 47/2015
Court Name:
Supreme Court of the Republic of Slovenia
National / Other Legislative Provisions:
Slovenia - International protection Act (ZMZ) Article 28
Slovenia - International protection Act (ZMZ) Article 2
Slovenia - International protection Act (ZMZ) Article 5
Slovenia - International protection Act (ZMZ) Article 26
Slovenia - International protection Act (ZMZ) Article 52
Slovenia - International protection Act (ZMZ) Article 91
Slovenia - Law on Administrative Disputes Article 7
Slovenia - Law on Administrative Disputes Article 65
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Headnote: 

The assigned political belief of an individual, his desertion or avoiding being drafted in the army are sufficient to grant a refugee status to an individual, if there is a connection between the reasons for persecution and the acts of persecution in line with Article 1.A of the Geneva Convention 1951 in a situation of an armed conflict. 

Facts: 

Initially the Ministry of the Interior refused refugee status to a Syrian applicant and instead granted him a subsidiary protection for a period of three years.

The Applicant appealed the decision to the first instance court, who subsequently set the contested decision aside and granted the applicant refugee status.

The first instance court decided that the Applicant’s request for international protection is well-founded and that he fulfils the conditions for refugee status. Furthermore, he could not be expected to submit evidence about being conscripted to the army and had adequately explained the discrepancies in his statements about his education, state of origin from which he left to Turkey, his forged passport and his fear of being mobilised to fight. The only difference remained in his statements about being conscripted to the army, more specifically, if he ever received the conscription personally. It can be concluded from the reports about Syria that the government and the opposition are committing crimes against the civil population and therefore the applicant’s fear of persecution based on his political beliefs, the fact that he is a Kurd and his fear of being mobilised to fight in the Syrian army are well founded.

The Court of first instance further decided that the effect of recognising refugee status meant that the applicant was entitled to a residence permit from the day in which the judgment was delivered to the applicant.  

The Ministry of Interior appealed the judgment to the Supreme Court stating that it is not clear if the applicant received the conscription and that the condition found in Article 26/2(5) of the International Protection Act (IPA) is fulfilled only if the applicant refuses a personal conscription. The refugee status can only be granted after an individual assessment of the applicant, who has to be a target of the persecution. Taking into the consideration the decision I UP 170/2014 and the fact that the applicant was not personally conscripted, he should not be granted refugee status.

The applicant answered that in order to decide about refugee status, it is not only important to consider past events but also the danger of him being the victim of persecution and the probability that he would be a victim of wrongful acts in the future. 

Decision & Reasoning: 

The Supreme Court refused the Ministry of Interior’s appeal stating that according to Article 2 of the IPA the status of a refugee is recognized to a third country national who, owing to well-founded fear of persecution based on race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, unwilling to enjoy the protection of that country, or a stateless person who is outside the country where he had his normal place of residence, and due to well-founded fear of being unable or unwilling to return to that country. According to article 26 of the IPA and in line with Article 1A of the Geneva Convention an act of persecution is also a prosecution for refusal to perform military service in a conflict, where performing military service would include crimes or acts falling under the exclusion grounds referred to in paragraph 5 of the IPA. One of these grounds is a reasonable suspicion that the applicant committed a crime against peace, war crime or a crime against humanity as set by the international acts.

The applicant was granted subsidiary protection because the available information provided that the level of violence in Syria is such that every civilian is faced with a serious and individual threat to their life or person and it can be described as a systematic violence against civilians according to Article 28 of IPA.

Because the applicant refused to take part in the armed conflicts, which include committing crimes against the civilian population, he would be, if he were to join the military, exposed to breaches of human rights as his involvement in the army would also include the criminal offences or acts that fall under the reasons for exclusion found in article 5 of the IPA. Those soldiers who refuse to act according to the orders and do not shoot at unarmed civilians can be sentenced to jail, torture or execution and, in case of their desertion, a death penalty.

Therefore, the assigned political belief of an individual, his desertion or avoiding being drafted in the army are sufficient reasons for recognition of refugee status to the individual, if there is a connection between the reasons for persecution and the acts of persecution in line with Article 1A of the Geneva Convention in a situation of an armed conflict. There is a considerable danger that if the applicant returns to the country of origin he will be assigned a political belief of opposing the government and can further face persecution because of avoiding military service (article 2 of the IPA), not only because of the threat of persecution which is defined as serious harm (article 28 of IPA), but also because the applicant is a Kurd, and individuals from this minority are involved in armed attacks against the Syrian regime.

The Supreme Court considered the applicant’s age (he was born in 1994) and the fact that there is compulsory military service in Syria and found it probable that he was, indeed, drafted to the Syrian Army.

On the final point the Supreme Court noted that indeed the judgment cannot have the effect of a residence permit on the day it is delivered to the applicant, but only when it becomes final, as it was decided in judgments I Up 246/2011, I Up 187/2014 and I Up 6/2015. This, however, did not change the decision. Therefore, the first instance Court correctly set aside the decision of Ministry for the Internal Affairs, which granted the applicant only with subsidiary protection and granted him a refugee status instead.

Outcome: 

The appeal was denied.

Observations/Comments: 

This case summary was written by Zoja Bajželj, LL.M of International Laws, University of Maastricht.

Other sources cited: 

In establishing the probability of the applicant actually being drafted to the army the Supreme Court referred to the following reports and sources:

 

Amnesty International Report 2012, Syria

Watchdog 22 November 2012,

Guardian: up to 28.00 Syrians disappeared since the beginning of the uprising

UNICEF,

The Week, 2 April 2013,

Aktivisti: 6000 ubitih marca v Siriji;

Pogovori GS: William Hague svari, da se Sirija potaplja v največjo humanitarno katastrofo tega stoletja, z dne 11. aprila 2013;

Sirija: Assad poziva k mobilizaciji v prvem govoru po vec mesecih, z dne 6. januarja 2013,

Levinje Sirije: Assad novaci vojakinje, ker mu zmanjkuje moških (23. januar 2013);

Zatiranje kurdskega ljudstva v Siriji - Seznam imen kurdskih vojakov (14. 5. 2010);

Kurdska Sirija: od Kulturne do oborožene revolucije (28. 7. 2012);

Skupinsko odrekanje: zatrianje kurdskih političnih in kulturnih pravic v Siriji (november 2009);

Sirija, Podatki o izvorni državi (COI) Porčilo Službe COI (15. 8. 2012);

 Home Office (United Kingdom), Operational Guidance, Note, Syria, (21. 2. 2014),

International Protection Considerations with regard to people fleeing the Syrian Arab Republic, Update III;

UNCHR GUIDELINES ON INTERNATIONAL PROTECTION NO. 10: Claims to Refugee Status related to Military Service within the context of Article 1A (2) of the 1951 Convention and/or the 1967 Protocol relating to the Status of Refugees;

Report of Commission of Inquiry on Syria;

Ministry of Interior of United Kingdom, Guidelines concernig Syria.

Case Law Cited: 

Slovenia - Judgment, I Up 6/2015

Slovenia - Judgment, I Up 187/2014

Slovenia - Supreme Court I Up 246/2011