Chabitezeva v. Minister of Interior, File No. U-336/93 (1994)

Czech Republic
DECISION
In the Name of the Republic

The Superior Court, in a senate composed of the Chairman JUDr. Michal Mazanec and judges JUDr. Jitka Lesna and JUDr. Bohuslava Hnizdila in the legal matter of the plaintiff Ruslana Abdulovic Chabitizeva, citizen of Georgia, currently residing at the refugee camp Bela pod Bezdezemm- Jezova, represented by JUDr. Marie Kolarova, attorney in Mlada Boleslav, Klaudianova 135/1, against the defendant, minister of interior, Prague 7, Nad Stolou 3, concerning the complaint against the decision dated Jun.23, 1993 file no. U-336/93, has decided

as follows:

I. The Minister of Interior's decision dated Jun.23,1993, file no. U-336/93, is annulled.

II. The matter is returned to the defendant for further proceedings.

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

IV. The pay for services rendered, to the plaintiff's representative, attorney JUDr. Marie Kolarova, is set at the amount of 264.809 Kc, and will be paid by the Superior Court in Prague within 30 days from this decision entering into legal force.

V. The defendant is responsible for payment, in the amount of 764.80 Kc, to the account of the Superior Court in Prague within 3 days of this decision entering into force.

REASONING:

The defendant is requesting the annulment of the declaration in the cited Minister of interior's decision, which terminated the proceeding for the granting of refugee status as per § 12 paragraph 1 letter c of the law no. 498/1990 Sb., concerning refugees.

The defendant, in his complaint and the supplement, admits that he violated the conditions set by the law no. 498/1990 Sb. by leaving the refugee camp Jezova and illegally crossing the border with GFR, he stressed though that he was not led by an intent to leave the Czech Republic, only that he succumbed to the convincing and pressure applied by his acquaintances in the refugee camp, Mrs Vjazankina and Mrs Chovrova, who were convincing him to help them with their bags and children to the border. He had attempted to convince them not to go but to no avail. Finally they convinced him with tears, to help them. he assumed that it would involve only leaving the camp for one day, therefore, he did not request permission from the management, the trip became longer however and finally they were detained by the German police. He points out that it was not his intent to violate the responsibilities of a refugee and states, that in the case of the denial of his application for the granting of refugee status, he will be forced to return to his former permanents residence, where he is in danger of being convicted of desertion (he refused to participate in the civil war against Georgia on the side of Abchazia), and for this criminal act, he could be sentenced to death.

The defendant, in his response to the complaint, stated that the decision of the Minister of Interior, dated Jun. 23, 1993, terminated the proceedings for the granting of refugee status for the reason that the plaintiff willfully and repeatedly violated the responsibilities set by the law no. 498/1990 Sb., by attempting to cross the border with GFR two times, on Dec. 2, 1992 and Jun. 1, 1993. Further he states that reasons for granting of refugee status as per § 2 paragraph 1 of the cited law, were not proven and also this is not a case of the protection of human rights or a humanitarian case as per § 3 of the law. He recommends therefore, that the complaint be denied in its entirety.

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

In his application of Oct. 14, 1992, the plaintiff stated that he left his home country because the war with Georgia against the Kabardin-Abchazian nations was beginning.

On Nov. 13, 1992 an interview was conducted with the plaintiff by a worker of the Office of the Alien Police and passport Services in Usti nad Labem, from which it became evident that the plaintiff left his home country because he did not want to fight against the Georgians.

The decision of the administrative organ of the first instance dated Jan. 13, 1993, denied his application. The administrative organ came to the conclusion, that the plaintiff is not in danger of persecution within the meaning of the provisions of § 2 of law no. 498/1990 Sb., and the reasons given by him can not be considered the protection of human rights or a humanitarian case, since from the information which he provided, it is not evident that his human rights would be violated, as per the international or intrastate legal norms.

The plaintiff appealed this decision, whereby he again stated that he does not want to participate in battles between the Abchazis and the Georgian s because their conflict does not concern him (he is Kabardin).

The Minister of interior terminated the proceedings for the granting of refugee status as per the provisions of § 12 paragraph 1 letter c of law no. 498/1990 Sb., concerning refugees, with justification that the plaintiff willfully and repeatedly violated the condition set by the law cited.

The complaint is well-founded.

According to § 12 paragraph 1 letter c of law no. 498/1990 Sb., the Ministry of Interior will stop the proceedings for the granting of refugee status if the applicant willfully and repeatedly violates the conditions set by this law.

According to the provisions of § 47 paragraph 3 of law no. 71/1967 Sb., concerning administrative procedure (Administrative Code), the administrative organ will state, which facts were the basis for the decision, in the reasoning section of its decision, what thoughts it was guided by during the evaluation of the facts and the application of legal regulations on the basis of which it decided.

The law then, instructs the administrative organ, to properly justify the declaration of its decision. The justification encompasses all of the facts that justify the declaration of the decision and should convince one of the appropriateness of the decision and the administrative organ's proceedings.

The administrative organ of the second instance did not comply with the provisions of § 47 paragraph 3 Administrative Code. The justification of its decision contains only a reference to the version of the provisions of § 12 paragraph 1 letter c of law no. 498/1990 Sb., without concretely showing what the willful repeated violation of the conditions set in the cited law rest on and which conditions set in the law were thereby violated by the applicants.

The contested decision is therefore, unreviewable for insufficient evidence within the meaning of § 250f Civil Code. The court therefore, annulled it without considering it and returned the matter to the defendant administrative organ for further proceedings (§ 250j paragraph 2 of the Civil Code).

In the subsequent proceedings the administrative organ will have to first of all concern itself with contemplation of whether or not the possibility of termination of proceedings as a consequence of the applicant's willful violation of conditions, set in the law concerning refugees, is in compliance with the provisions of the Agreement concerning the legal standing of refugees, ratified on Jul. 28, 1951 in Geneva and published under no. 208/1993 Sb. (the cited Agreement continues to be valid on the territory of the Czech Republic, within the meaning of section 1 paragraph 1 of the Constitutional Law of the CNC no. 4/1993 Sb, concerning actions related to the termination of the Czech and Slovak Federal Republic). It must be considered that the provisions of § 12 paragraph 1 letter c of the law concerning refugees makes the termination of proceedings possible, if the applicant willfully repeatedly violates the conditions set by the law concerning refugees. In contrast the cited Agreement more severely restricts withdrawal of one from its sphere of application (that is providing protection). (ref. provisions of article 1 primarily points C through F of the cited Agreement). The administrative organ must reconcile these contradictions in the reasoning section of its decision, evaluate their effect from the viewpoint of the provisions of article 10 Constitution of the Czech Republic.

In the proceedings the plaintiff was freed from payment of court costs and he was assigned an attorney by decision of he Superior Court in Prague. The assigned attorney conducted two transactions during the proceedings (§ 16 paragraph 1 letter a and c, public notice no. 270/1990 Sb.) and he is entitled to an extra-contract payment of 100 Kc as per § 14 and a lump sum payment of 30 Kc as per § 19 paragraph 3 of the same administrative regulation. Further the amount of 4.80 Kc was allowed for an intercity telephone conversation. The court therefore allowed the attorney payment in the amount of 264.80 Kc, which will be paid by the court (§ 140 paragraph 2 Code of Civil Procedure).

The plaintiff was successful in the matter and is therefore entitled, within the meaning of the provisions of § 250k paragraph 1 sentence 1 Civil Code, in contrast to the defendant, to reimbursement for costs of proceedings. According to the contents of the record the plaintiff did not incur any costs in the course of the proceedings, since he was represented by a court appointed attorney. Her complete costs and salary however, will be paid by the state within the meaning of the provisions of § 140 paragraph 1 Civil Code. The court therefore, as per the provisions of § 250k paragraph 1 sentence 2 Civil Code, stated that none of the participants are entitled to reimbursement for the cost of proceedings.

The plaintiff was freed from court costs and the court therefore, according to the results of the proceedings, ordered the defendant, within the meaning of the provisions of § 2 paragraph 2 of the law CNC no. 549/1991 Sb., concerning court payments and payments for copy of the criminal record, to pay the entire court costs (500 Kc) into the account of the Superior Court in Prague, and concurrently came to the conclusion, that the freedom from court costs does not extend to the defendant as per § 11 paragraph 2 letter a of the same law. At the same time it ordered the defendant to pay the state the costs of the proceedings (salary to the attorney), that being 264.80, because within to meaning of the provision of § 148 paragraph 1 Civil Code as related to the provisions of § 246c Civil Code, the state is entitled to, according to the results of the proceedings, in contrast to the participants, reimbursement for costs of proceedings which it paid, so long there is no presupposition of freedom from court costs.

Instruction: This decision can not be appealed.

In Prague on Jul. 22, 1994

Chairman of the Senate:

JUDr. Michal Mazanec v.r.

For accuracy of document

(Signature)

(STAMP; Superior Court in Prague)