Judgment of the Supreme Administrative Court of the Czech Republic of 4 February 2009, No. 1 Azs 105/2008-81

Summary of facts

The applicant, a citizen of Turkey of Kurdish origin, stated that he refused to undertake military service in Turkish army, so that he would not have to fight insurgents of Kurdish origin. He also supported the opposition Kurdish party DTP and volunteered in distribution of a journal published by DTP. In 2005 he participated in the Kurdish national celebration of Nawroz, at which occasion he was arrested and detained for 2 weeks. After release he was summoned to police station on occasions, mainly for reason of his support of the DTP party.

Summary of legal findings

The main issue dealt with in the judgment was whether and to what extent the adjudicator could use the report of European Commission on the progress of candidate countries to membership in the European Union (in this case, Turkey) to support its conclusions.

The Court referred to its previous case law, according to which the country of origin information used had be to the greatest extent possible (1) relevant, (2) reliable and balanced, (3) up-to-date and corroborated from diverse sources, and (4) transparent and traceable [reference made to G. Gyulai, Country Information in Asylum Procedures: Quality as a Legal Requirement in EU, Budapest, 2007].

The Court referred primarily to two ECtHR cases. With reference to Saadi v. Italy judgment of 28 February 2008 (Application no. 37201/06, § 143), the Court stated that, in evaluating the reliability of country of origin information reports, it had to take into account the authority, authors' reputation, the research methodology, whether the conclusions were consistent with each other and whether they were corroborated in substance by other sources. The Court went on to mention the judgment of Grand Chamber of the ECtHR in N.A. v. United Kingdom of 17 July 2008 (Application no. 25904/07, § 120-122), stating that substantial consideration must be given to the independence, reliability and objectivity of the source, and the presence and reporting capacities of the author in the country in question. As such, greater importance had to be attached to reports which considered the human rights situation in the country and directly addressed the grounds for the alleged risk of ill-treatment. The relevance and weight accorded to such reports depended, however, on the extent to which they related to the questions considered in the procedure. Less weight would be accorded to a report generally describing socio-economic conditions in the country of origin.

The Court then went on to apply the criteria set in the above judgments to the report before it (Progress Report on Turkey for 2007), which had been used as the sole evidence by the adjudicator in the present case.

According to the Court, the report was based on information collected and analyzed by European Commission, using information provided by Turkey, member states of the EU, and reports from the European Parliament and a number of international and non-governmental organizations. The report related to the period between 1 October 2006 - beginning of October 2007, contained a short description of the relations between EC and Turkey, and analysed the progress made by Turkey towards fulfilling the political and economic criteria for membership in the EU, and the ability of the candidate state to comply with the future obligations flowing from the acquis communnautaire. It analysed the progress made in respect to the Copenhagen criteria. Thus, Turkey's international obligations, and relations with neighbouring countries and member states of the EU with the candidate country were assessed. Despite the fact that the progress report contained a chapter on the protection of human and minority rights, its main goal was to evaluate the progress in preparing for the membership to the EU. Accession of a candidate country to the EU was always a highly political issue given the conflicting geo-political, military and economic interests of the EU, its member states and the candidate country. The European Commission conducted negotiations with the candidate country on individual chapters, exchanging information, opinions and standpoints. The report analysed the progress achieved during the year, and was addressed to the Council of EU and to the European Parliament, key organizations in deciding on the accession of the candidate country to the EU. It was not intended to be used in the asylum procedures.

The report itself was a sensitive political document, in which every sentence had to be carefully weighed in order not to cause unwanted diplomatic falling-out and so that the interests of the actors in the accession negotiations were not threatened. It was also written in a diplomatic language which did not allow to 'decrypt' the actual situation in the country of origin. This was illustrated by the following excerpts of the report: "However, the prosecution and conviction for the expression of non-violent opinions under certain provisions of the Turkish Criminal Code are a cause of serious concern." or "However, the overall socio-economic situation in the south-east remains difficult. No steps have been taken to develop a comprehensive strategy to achieve economic and social development in the region and to create the conditions required for the Kurdish population to enjoy full rights and freedoms." The underlined parts were very vague, their intensity was rather subjective and unequivocal conclusions could not be drawn from them.

The clear-cut conclusion of the regional court that the progress report could not be used at all had to be corrected, however. The progress report could, of course, be one of the sources used as evidence in the international protection procedure. As prescribed under Section 51 para. 1 of the Code of Administrative Procedure, "every means of proof that are suitable to ascertain facts(...) may be used as evidence". However, the specific character of the report had to be considered in the weighing of evidence (in the phase of free evaluation of evidence); the fact that it was a political document not compiled for the purposes of the asylum procedure and not dedicated to the analysis of the circumstances and events relevant for international protection, had to be taken into account. The progress report could, therefore, only be used together with other country of origin information reports which did not suffer from the above mentioned deficiencies. The progress report could be used in order to verify/corroborate information in such other reports considered by the administrative body.