Slovakia - S.H. v Ministry of Interior of the Slovak Republic, 13 September 2011, 1Sža/38/2011

Country of Decision:
Country of Applicant:
Date of Decision:
13-09-2011
Citation:
1Sža/38/2011
Court Name:
Supreme Court of the Slovak Republic
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Headnote: 

The Supreme Court does not consider an assessment of the Applicant as an untrustworthy person to be justifiable where it is based only on the fact that he failed to mention all of the details of the case immediately in the admission interview, providing them gradually instead, as the Applicant‘s claims are logical, consistent, and in line with the situation in the country of origin. The argument of untrustworthiness can be used only in situations where there are additional factors indicating that the facts asserted by the Applicant are not true, and that has not been demonstrated in the case in question.

Facts: 

In March 2007, the Applicant and his wife requested asylum in the territory of the Slovak Republic. The grounds for his request were problems in his country of origin, Iran, consisting of the fact that he had been imprisoned for defending his uncle, whom the police had come to arrest for being a member of the Mujahideen party. After being released from prison he moved to Teheran, where, as a sympathiser with the Mujahideen party, he secretly participated in the distribution of leaflets and other activities. He had to report regularly to the Court in the town of Lahijan, however. Two years after his release from prison he decided to leave Iran and seek help in a safe country.

The Migration Office refused to grant the Applicant asylum and refused to provide him with subsidiary protection, stating that there was no obstacle to him being deported back to Iran. The Applicant appealed against this decision to the Regional Court in Bratislava, which set aside the decision of the Migration Office and referred the case back to the Migration Office. In the subsequent proceedings, the Migration Office once again refused to grant the Applicant asylum, but did provide him with subsidiary protection. The Applicant filed an appeal against the operative part concerning the refusal to grant asylum with the Regional Court in Bratislava, which upheld the decision of the Migration Office. The Applicant, however, appealed to the Supreme Court of the Slovak Republic, which amended the judgment of the Regional Court such that the operative part of the Migration Office’s decision concerning the refusal to grant asylum was set aside and the case was referred back to the Migration Office. In the third set of proceedings the Migration Office again refused to grant the Applicant asylum, and the Applicant therefore appealed to the Regional Court in Bratislava, which upheld the decision of the Migration Office. The Applicant appealed against the judgment to the Supreme Court. 

Decision & Reasoning: 

The assessment of the factual correctness of the Regional Court’s judgment and, within the framework of this, also the legality of the decision of the Migration Office with regard to the Applicant’s appeal, was based on an assessment of whether the Migration Office and, in the subsequent proceedings, the Regional Court, had followed the legal opinion of the Court, expressed in Judgment of the Supreme Court No 1Sža 56/2010 of 13.7.2010, and whether the decision of the court of first instance was based on a correct legal assessment of the case.

The Applicant’s appeal was based on a claim that the Migration Office, despite the legal assessment concerning the credibility of the Applicant expressed in subsequent proceedings after the supplementary interview with him, assessed the Applicant as an untrustworthy person, which was the basis for refusing to grant him asylum.

The Supreme Court considered this objection to be well-founded. It can be seen from Judgment No 1Sža 56/2010 of 13.7.2010 of the Supreme Court that the Supreme Court stated expressly in the decision in question that there was no need to place such an emphasis on the Applicant’s first statement during detention (in March 2007) for the purposes of submitting an explanation (because in all subsequent statements he did not depart from the framework of the grounds on which he was requesting asylum), and actually assessed his claims as intelligible, consistent and free of internal contradictions.

The Migration Office based its new decision concerning the Applicant‘s untrustworthiness on statements made by the Applicant during the admission interview in March 2007, and emphasised that the Applicant did not mention the circumstances of his own political activities in the admission interview of 27.3.2007, but only in the appeal against the decision (15.1.2009).

With regard to the foregoing, the Supreme Court, in Judgment No 1Sža 56/2010 of 13.7.2010, again expressed the view that the grounds and assertions advanced by the Applicant were consistent from the outset, and that the Applicant could not be called an untrustworthy person simply because he had supplemented and further elaborated on his statement during the proceedings.

On this point, the Supreme Court considered it important to emphasise that it could not agree with the Regional Court’s assessment of the situation, which stated that the Applicant, contrary to the forgetfulness and generalisation that usually comes with the passing of time, actually remembered further new details as time progressed.

In the opinion of the Supreme Court, this process of remembering further new details was not out of the ordinary. On the contrary, it was only to be expected given the Applicant’s frame of mind and the position in which he found himself, particularly in his first contact with the state authorities when he was requesting international protection based on the experiences he had endured and his anxiety over returning to a place he feared.

The Supreme Court also took the view that the Applicant had, from the outset, expressed fears about the state authorities of his country of origin, grounds which he gradually specified in greater detail, along with his support for the Mojahedin-e-Khalq party.

The assessment of an asylum applicant‘s credibility is the result of an overall evaluation process and of the views of the Migration Office with respect to the applicant’s personality and the degree to which the reasons put forward by him for leaving his country of origin are realistic or credible in relation to what is generally known about his country of origin. The decisive factors for concluding that an applicant is untrustworthy cannot be a few minor inconsistencies or ambiguities in his claims that can be explained away as errors, but rather must be fundamental contradictions in the statements, identified by the administrative authority.

In the opinion of the appeal court, the contradictions in the Applicant‘s statements can be considered minor or even negligible.

The Supreme Court did not consider an assessment of the Applicant as an untrustworthy person to be justifiable where it was based only on the fact that he failed to immediately mention all of the details of the case in the admission interview, providing them gradually instead, as his claims were logical, consistent, and in line with the situation in the country of origin. The argument of untrustworthiness can be used only in situations where there are additional factors indicating that the facts asserted by the Applicant are not true, and that has not been demonstrated in the case in question.

As the Supreme Court disagreed with the assessment of the Applicant as an untrustworthy person in the earlier proceedings, the Migration Office should have taken this fact into account and should have made a legal assessment in subsequent proceedings as to whether the facts stated by the Applicant constituted grounds for fear of persecution due to his support and sympathy for certain political views.

Outcome: 

The Supreme Court amended the judgment of the Regional Court in Bratislava such that the Migration Office’s decision was set aside and the case referred back to the Migration Office.

Subsequent Proceedings : 

In the subsequent proceedings (the fourth) before the Migration Office in 2012, the Applicant was granted asylum.

Observations/Comments: 

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

Case Law Cited: 

Slovakia - Supreme Court, 13 July 2010, 1 Sža 56/2010