Dallakajan v. Minister of Interior, File No. U-1006/93 (1994)

Czech Republic
DECISION
In the Name of the Republic,

The Superior Court in a senate composed of the chairman JUDr. Michal Mazanec and the judges JUDr. Bohuslav Hnizdil and Eliska Cihlarova in the legal matter of the plaintiff Vacagan Dallakjan, citizen of Armenia, currently residing at the refuge camp at Bela pod Bezdezem-Jezova. represented by JUDr. Marie Kolarova, an attorney in Mlada Boleslav, Kaudianova 135/1, against the defendant Minister of Interior, Prague 7, Nad Stolou 3, concerning the complaint against the decision dated Nov. 11, 1993, file no. U-1006/93, decided

as follows:

I. The complaint is denied.

II. None of the participants are entitled to reimbursement of costs of proceedings.

III. The salary of the legal representative, attorney JUDr. Marie Kolarova, is set at the amount of 260 Kc, and will be paid by the Superior court in Prague within 30 days of this decision entering into legal force.

REASONING:

In the complaint filed by the plaintiff within the deadline and supplemented on Jan. 18, 1994, the plaintiff requests the annulment of the Minister of Interior's of Interior's decision date Nov. 11, 1993, which confirmed the decision of the Director of the Alien and Border Police Headquarters of the Police presidium of the CR, and denied the plaintiff's appeal concerning the denial of his application for the granting of refugee status.

In the complaint and the supplement the plaintiff stated that he had left his native country because he had refuse to participate in the war as a christian, against adherents of (Musurmanske, faith). He could not see a reason for risking his life and so he left the army and went into hiding.

Constant fear of discovery and the tension on this nerves led to a nervous illness. He therefore decided to choose the type of resolution which would remove the cause of his illness and went with his family to the Czech Republic. He therefore considers it evident that in Armenia, he is in danger of a justified fear of persecution for reasons of religions, and nationality. Aside from this primary reason for leaving, the plaintiff was also led to leave by the fact that from January 1992 he was a member of the Armenian freedom organization movement. This is an unsanctioned organization and its members were treated as such. The disinterest in a continued residence in Armenia was also motivated by fears of attack by bandits, since he was attacked by such persons on two occasions. These are groups of residence who take advantage of the wartime conditions, and the general civil disorder, who steal and plunder. This can not be considered economic reasons since the reason for leaving the country was that he did not want to live in constant fear for his life and the lives of those close to him.

The defendant recommended, in his statement, that the complaint be denied and added, that according to information from the local office of the United Nations High Commissioner for Refugees in Prague, persons are not currently being called into military service due to the war, if they have finished military service. The plaintiff, as is stated in his application, has served his term in the military. From 1978/1980. If ethnic Armenians from Nahorni Karabach are conscripted, the authorities provide protection to victims of these conscriptions, if it is requested. The plaintiff did not state that he had requested such protection and from his application it is evident that he was born and lived outside the area of Nahorni Karabach. He did not mention the religious reasons which were supposed to the cause of his refusing military service, during the course of the administrative proceedings. It is evident from the contents of the application and the plaintiff's appeal that he left Armenia for fear of criminal prosecution for refusing to obey a military order rather than for reasons stated in § 2 and 3 of law no. 498/1990 Sb. As far as his apparent membership in the Armenian freedom movement, he did not present this reason in the administrative proceedings and according to generally accepted information, this political party is represented in parliament and it is a case of a legal political opposition party. No new evidence which would sufficiently prove reason for the granting of refugee status, were not presented by the plaintiff in the complaint.

The Court obtained the records of the administrative organs of both instances, from which the following became evident:

In the application for the granting of refugee status dated Dec. 22, 1992, the plaintiff stated that he is a citizen of Armenia, he had left his country on Dec. 16, 1992, and a return would mean his death. There is a war on the Armenian border and at the beginning of May the plaintiff was called in to serve in this war. The family was left without resources and had nothing to eat. He therefore returned home in order to support it. The police came continually and threatened him with arrest if he does not go into the war. Neither he nor his family members are members of a political or other organization. During the interview dated Jan. 22, 1993, the Plaintiff stated that in May 1992 he was called for training before going to serve in Nahorni Karabach. He feared the second draft notice and for his family. He left training because he was told that as a sniper he would go on the front line. He considers himself a mentally unstable person and he can not take part in the murdering of humanbeings. After returning home he was visited a soldier and a militiaman every other day and he was threatened that if he does not return to training he would be arrested. He therefore left with his wife and her brother and went to Czechoslovakia, in order to find out if he would by accepted with his family. Later they returned for the children, event though they were very worried. He didn't stay at home very long and left in Dec. 1992 together with the children.

The plaintiff's application was denied by the Director of the Headquarters Services and Border Police of the Police Presidium of CR's decision, for the reason that he does not fulfill the conditions for the granting of refugee status set in § 2 paragraph 1 and § 3 of law no. 498/1990 Sb. Fear of the draft was not found to be a reason for the granting of refugee status. If the plaintiff was mentally ill then he could have been relieved of military service if he submitted physicians confirmation. The other reasons given by the plaintiff, were found to be economic reasons by the administrative organ of the first instance, stemming from internal political evolution of the country. The presented reasons could not even be considered as protection of human rights or a humanitarian case, since it was not found that in the case of the plaintiff human rights would be violated as per international and intrastate legal norms.

In the filed appeal, the plaintiff stressed that he and his family were in danger of justified fear of persecution in his home country, which he described in detail in the first application. He can not return because he is persecuted by criminals recently released from prison, as well as political groups, since he did not want to participate in a senseless war.

In the contested decision the defendant denied the plaintiff's appeal and confirmed the first instance administrative organ's decision. The defendant justified this decision stating that in the appeal the plaintiff does not present any new facts, he only expressed his disagreement with the first instance administrative organ's decisions. After reviewing he contested decision he arrived at the conclusion that the actual facts in the matter were sufficiently investigated by the first instance administrative organ , and a proper decision was made.

The defendant submitted to the court, information from the local office of the United Nations High Commissioner for Refugees dated Oct. 3, 1993, concerning person avoiding military service and deserters in Armenia, in which it is stated that at the present time persons are not drafted because of the war, if they have already finished military service either in the Soviet or Armenian army. Persons not reacting to draft orders remain unjailed because the authorities are not able to punish all of the men avoiding military service or deserters. In addition it is common to bribe the officers in charge of the draft. Conscriptions from Armenia to Nahorni Karabach occurred in the Spring of 1993, which was a violation of Armenian law, although partially tolerated by them. Even so the authorities provided protection for those who managed to get it.

The court considered the matter to the extent that the defendant's decision was contested (§ 249 paragraph 2 Civil Code), and came to the conclusion, that the complaint is unfounded.

As per the provisions of § 2 paragraph 1 of law no. 498/1990 Sb., refugee status will be granted to the alien who has a justified fear of persecution, in the state of which he is a citizen, for reasons of race, religion, nationality, membership in a particular social group or for political reasons. According to § 3 of the same law (in the version prior to novelization by law no. 317/1993 Sb., which came into legal force on Jan. 1, 1994) refugee status could be granted for reasons of the protection of human rights and humanitarian reasons, also to the alien who does not fulfill the conditions contained within § 2 paragraph 1 of the law.

The plaintiff presented his refusal to actively participate in the war (for which he was being prepared in the training, which he had left) as the reason on which his decision to leave Armenia hinged. This should have put him in danger of punishment in the case of his return to the home country.

Neither the sole refusal to serve in the military nor the fact that the plaintiff would be in danger of punishment for his avoidance of military service, are in and of themselves without the existence of other facts, persecution for reasons presented within § 2 paragraph 1 of law no. 498/1990 Sb.

The seriousness of the charges which the plaintiff would be in danger of in this case, is reduced by the reliable information from the contact office of the UN High Commissioner for Refugees, which the administrative organ properly obtained, and the assertion of the plaintiff himself (and equally that of his wife in the matter before the Superior Court under record id. 6 A 628/93) that the plaintiff was being visited by a soldier and a militiaman, sometimes a policemen, in his apartment, and that he was threatened due to his refusal to enter the armed forces, but that in fact no consequences resulted from his actions, and in addition he was allowed to travel out.

The court has no reason to doubt that the plaintiff considers the situation in his home country to be dangerous, he feels threatened, whether by the general state of war, the economic and moral disintegration, the criminality or by the danger of criminal proceedings. These fears no matter how objectively supported they are, do not mean that there are reason here, as given by the law. For fear of persecution justifying the granting of refugee status.

It was only in the complaint that the plaintiff presented the fact that he was a member of the Armenian Freedom Movement, which was an illegal organization, as another reason for his applying for the granting of refugee status. The court can not consider these statements, as well as the plaintiff's arguments relating to his point in view of the provision of § 250i paragraph 1 Civil Code, according to which during a review of an administrative decision the determining actual conditions is the one which existed at the time the contested decision was issued. The plaintiff however, did not present these reasons to the administrative organ and it must be agreed with the defendant that, in the application for the granting of refugee status he specifically stated that he is not a member of a political or other organization and that he is not applying for the granting of refugee status for these kinds of reasons. Proceedings concerning complaints against the decision of administrative organs are limited proceedings and the court can not supplement the actual conditions with new fact above and beyond those that were discovered in the administrative organ's proceedings.

The administrative organs therefore, could only evaluate the facts asserted by the plaintiff in the course of administrative proceedings. This they did, and if at that time they did not find any of the reasons presented in the provisions of § 2 and 3 of law no. 498/1990 Sb., then they did not err, because the reasons presented by the plaintiff are not consistent with any of them. Even the possible danger of punishment for these actions is not a danger of persecution for reasons presented in § 2 paragraph 1 of the cited law.

The court denied the appeal for these reason as per § 250j paragraph 1 Civil Code, at which time it decided in compliance with the provisions of 250f Civil Code, without ordering proceedings, since only the legal question were to be considered.

The statement concerning the costs of proceedings is based on the provisions of § 250k paragraph 1 Civil Code, because the plaintiff was not successful in the matter.

The plaintiff was freed from court costs in the proceedings and by decree of the Superior Court in Prague dated Dec. 14,1993, file no. 6 A 629/93-10, an attorney was appointed for him, who conducted two transactions during the proceedings (§ 16 paragraph 1 letter a and c, public notice no. 270/1990 Sb.). She is entitled to 100 Kc extra-contract payment as per § 14 of the cited public notice and a lump sum in the amount of of 30 Kc as per § 19 paragraph 3 of the cited public notice, for each transaction. The total payment allowed to the attorney is in the amount of 260 Kc, which will be paid by the court.

Instruction: Appeal of this decision is not possible.

In Prague on May. 27, 1994

Chairman of the Senate

JUDr. Michal Mazanec, in person

For accuracy of completion

(Signature)

(STAMP: Superior Court in Prague)