Superior Court Decision 22 July 1994 (U-1722/93)

The Superior Court in a senate composed of the chairman JUDr. Michal Mazanec and the judges JUDr. Jitka Lesna and JUDr. Bohuslav Hnizdil, decided in the matter of the plaintiff Vasile Gheorghitta, currently residing at the refugee camp in Krasna Lipa, represented by JUDr. Jiri Sramek, and attorney in Rumburk, 9. kvetna 33, against the defendant Minister of Interior, Prague 7, Nad Stolou 3, concerning the complaint against the decision dated Oct. 25,1993, file no. U-1722/93,

as follows:

I. The complaint is denied.

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

III. The salary of the plaintiff's legal representative, attorney JUDr. Jiri Sramka, is fixed 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 and its supplement of Jan. 28.1994, the plaintiff requests the annulment of the defendant's decision dated Oct. 25,1993 which confirmed the decision of the Directorate of the Alien and Border Police Services of the Police Presidium of the CR, dated Jun. 9,1993, file no. PPR-1332-1/CPP-C-248-93, concerning the denial of his application for the granting of refugee status, and denied the plaintiff's appeal.

In the complaint and its supplement the plaintiff repeatedly pointed out the reasons presented by him in his application for the granting of refugee status. He states his conviction that he fulfills conditions for the granting of refugee status within the meaning of the law no. 498/1990 Sb. and most importantly stresses the fact that he is a member of the Seventh Day Adventist Church, whose members are seriously discriminated against in Rumania. That is his primary reason for the application for the granting of refugee status.

The defendant recommended the denial of the complaint in view of the fact that the discovered facts in the matter are consistent with the content of the record and it was not proven that the plaintiff is in danger of persecution in his home country, for reasons of his membership in the Seventh Day Adventist Church. So far as the disrespect of the freedom of conscience, it is the opinion of the defendant that the possibility of Rumania entering a war is only speculation. If the plaintiff is concerned with his future fears, stemming from a possible military conflict of Rumania, the political situation and the establishment of voluntary religious classes in Rumanian schools, to which he relates historically consistent events, these politicological thoughts of the plaintiff can not be considered as the immediate endangerment of his person. It is only a matter of speculation rather than the fulfillment of the condition for the granting of refugee status.

The Court requested and obtained the legal records of the organs of both instances, from which the following was evident:

In the application for the granting of refugee status dated Mar. 24, 1994, the plaintiff stated that he is a citizen of Rumania and as a reason for leaving his home country he stated that he lived near the Yugoslavian border, and that he expects that the war will extend itself all the way to Rumania and he does not want to go to war. Further he expressed dissatisfaction with the current political situation in Rumania. In the "Declaration" he stated without information, that he requests political asylum for religious reasons in connection with economic reasons. He stated that in 1988 he converted to the Adventist faith and since then has had problems with finding work.

On Apr. 14,1993 an interview was conducted with the plaintiff at the office of the Alien Police and passport Services in Usti nad Labem, from which it became evident that the plaintiff worked as an electrician in an electrical generation plant until 1988 and that he left this job for religious reasons, because he was not permitted not to work on Saturdays which according to Adventist teaching it is a holy day. Shortly thereafter he became employed with a construction company where he was satisfied since this employer did not care when he would do his work. In 1989 he met some brothers of the faith who promised him that they would find him work in Constaze and that they would be there together. For this reasons he resigned from his job and began working in greenhouses where vegetables and flowers were being raised. Toward the end of 1989 returned to his home village, to his parents, attempted to again find work in an electrical generation plant but because he would be required to work on Saturdays he did not accept employment in the electrical plant. He lived with his parents, helping them with their farm until his departure from Rumania in 1993. His reason for leaving Rumania was the fear that a military conflict could occur between Rumania and Yugoslavia and that he would have to fight which is in contradiction to his convictions. In his family he also had conflicts due to his faith, that is why when he discovered the possibility of applying for asylum in the Czech Republic he left Rumania and applied for the granting of refugee status. He does not want to return to Rumania at least until it is definite that Rumania will not participate in any kind of military conflict.

The Directorate of the Alien and Border Police Services of the Police Presidium of the Czech Republic decided on the plaintiff's application on Jun.9, 1993, by denying it. From the reasoning section of the decision it is evident that it was not evident from the application nor was it proven that the plaintiff was in danger of a justified fear of persecution in his home country, within the meaning of § 2 of law no. 498/1990 Sb.. According to the opinion of the administrative organ of the first instance, the reasons which the plaintiff presented are the result of the current political situation in his country and are not a reason for the granting of refugee status as per international and intrastate legal norms and can not be judged as the protection of human rights or as a humanitarian case.

In the appeal of this decision the plaintiff repeated the reasons which led him to submit the application for the granting of refugee status.

The Minister of Interior decided on the appeal via the contested decision by denying it and confirming the decision denying the application. During the evaluation of the plaintiff's claims the appeal organ did not find that his fears are justified, since his fear of a possible military conflict are purely speculative and could not have affected him at the time of his departure from his home country. So far as the other reason is concerned, that is working on Saturdays, which is unacceptable for the plaintiff, the appeal organ takes the position that the plaintiff could have chosen work which would have been consistent with the preconditions of his faith. He however, decided to proceed in the opposite direction, that is to force the workplace where he would be satisfied to make an exception for him which he did not succeed in. His situation can not be therefore considered persecution for religious reasons, since as he himself stated, he worked, and could have worked, in places where the Saturday shift was not insisted upon. By being granted refugee status in the Czech Republic the plaintiff would be in the same situation because event here it is not possible to force all employers to cancel work on Saturdays or to make exceptions.

The complaint is not well-founded.

As per the provision 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.

In the course of the proceedings the plaintiff expressed himself several times as to the cause of his departure from Rumania, and from these statements two reasons which led the plaintiff leaving the country become evident: the fear of the movement of the military conflict from the territory of the former Yugoslavia to the territory of Rumania and problems with gaining employment in consideration of the fact that he is a member of the Seventh Day Adventist Church which forbids him from working on Saturdays. Neither one of these reasons, presented by the plaintiff can be considered in the categories of reasons presented in § 2 paragraph 1 of law no. 498/1990 Sb.. It did not become evident from the statements of the plaintiff that he would be in danger of persecution for religious reasons in his home country, since the church of Seventh Day Adventists is not forbidden in Rumania and its existence is not restricted. The plaintiff is simply restricted in his choice of employment by the fact that his faith directs him not to work on Saturday. This however, can not be considered persecution for religious reasons. The plaintiff, however, had the opportunity to gain employment with employers who did not require work on Saturdays. Event so he did not take advantage of the opportunity and attempted to gain relief from the employer who could not really help him (an electrical generation plant running 24 hrs per day). The defendant correctly points out that the plaintiff would find himself in similar circumstances in the Czech Republic as well. As to the point of the plaintiff's fears stemming from possible Rumanian military conflict, it is not a case of an immediate threat to his person, but only of speculation, as pointed out again by the defendant. A threat in this form contradicts the meaning of the Agreement concerning the legal standing of refugee. Asylum is granted on the basis of a real, not fictitious or speculative, threat. To this in addition it is pointed out that up to the time of the court's decision the plaintiff's fears concerning the extension of the war to the territory of Rumania have not materialized.

The court therefore, denied the complaint for the expressed reasons as per the provision of § 250j paragraph 1 Code of Civil Procedure, at which time it decided in compliance with the provisions of § 250f Code of Civil Procedure, without ordering proceedings, since it was only a matter of judging a legal question.

The plaintiff was not allowed the right of reimbursement for the costs of proceedings because he was not successful in the proceedings. (§ 250k paragraph 1 Code of Civil Procedure)

The plaintiff was freed from court costs in the proceedings and by decree of the court an attorney was appointed for him. He conducted 2 transaction in the proceeding (§ 16 paragraph 1 letter a and c public notice no.270/1990 Sb.) and for each of these transactions he is entitled to an extracontract payment of 100 Kc as per § 14 and a lump sum payment of 30 Kc (§ 19 paragraph 2 of the same regulation). The payment allowed to the attorney will be paid by the Superior Court in Prague (§ 140 paragraph 2 Civil Code of Procedure) after this decision comes into legal force.

Instruction: This decision can not be appealed.

In Prague Jul. 22, 1994

Senate Chairman

JUDr. Michal Mazanec in Person for the accuracy of completion (signature)

STAMP: Superior Court in Prague.