Gevorkova v. Minister of Interior, File No. U-1087/93 (1994)

Czech Republic

Decision

In the Name of the Republic

The Superior Court in Prague, in a senate composed of the Chairman JUDr. Michal Mazanec and judges JUDr. Eliska Cihlarova and JUDr. Bohuslava Hnizdila, in thematter of the plaintiff Zanna Sogomonovna Gevorkova, born Jul. 25, 1950, currently residing at refugee camp in Bela pod Bezdezem-Jezova, legally represented by JUDr. Zdenka Mikova, an attorney in Mlada Boleslav, Kalefova 404, against the defendant, Minister of Interior, Prague 7, Nad Stolou 3, in proceedings concerning the complaint against the decision of the Minister of Interior dated Nov. 11, 1993 file no. U-1087/93, decided

as follows:

I. The decision of the Minister of Interior dated Nov.11, 1993 file no. U-1087/93 and the decision of the Directorate of the Alien and Border Police Services of the Police Presidium of the Czech Republic dated Jan. 10, 1993 file no. PPR-100/CPP-C-241-93 are annulled.

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

III. None of the participants are entitled toreimbursement for costs of proceedings.

IV. The remuneration for the plaintiff's legal representative JUDr. Zdenka Mikova is fixed at the amount of 390 Kc and will be paid by the Superior Court in Prague within 30 days from the decision entering into legal force.

V. The defendant is responsible for payment, to the account of the Superior Court in Prague, the amount of 890 Kc, within 3 days from the decision entering into legal force.

REASONING:

In her complaint filed at the Superior Court in Prague on Dec.3, 1993, the plaintiff requests the annulment of the statement in the marked decision of the Minister of Interior, which denied her appeal against the decision of the Alien and Border Police Services Headquarters of the Police Presidium denying the Plaintiff´s application, dated Nov. 10, 1992, for the granting of refugee status

The Plaintiff in her complaint and its supplement stated that she has a justified fear of persecution for reasons of religion and nationality, given the assumption that she should return to Azerbaijan, where she lived from her birth until the year 1989, at which time as a consequence of the war between Armenia and Azerbaijan, concerning the National Karabach, she left to live with her relatives in Armenians. She is of Armenian nationality and as a result of the war-time conditions, which led to pogroms against Armenians, she was afraid for her life as well as the lives of her three minor children, who she had already previously taken to her relatives in Armenia. In addition she is a christian and the Azerbaijanis are Moslems, therefore, in addition to national hatred there arose also religious hatred and for these reasons also the oppression of christians on the territory of Azerbaijan. The plaintiff believes that these reasons clearly fulfill the conditions set by the law for the granting of refugee status. The denial of her application, her possible return, either to Armenia or to Azerbaijan, would most probably result in the plaintiff's persecution and/or death.

The defendant expressed himself in detail regarding the Complaint and recommended that it be denied. He does not find religious justification in the case of the plaintiff and points out that at the time when national unresthad begun in Azerbaijan, the plaintiff took her children to their relatives in Armenia, apparently due to her fear for their safety, whereupon she returned to her partner in Azerbaijan. As far as her following her children to Armenia is concerned, the defendant stresses that this occurred only after she and her partner ended their relationship and states his conviction that the reason for her subsequent escape from Armenia was not due to the fear of persecution for reasons of religion, but rather due to a simple conflict with her relatives who were forced to support her children for four years and her for two years. As a result, the defendant is of the opinion that the plaintiff escaped from her personal problems. In Armenia neither she nor her children were persecuted for reasons of religion or nationality: if that had been the case she would not have taken her children there and remained in Armenia from the year 1989 to the year 1992. The statement in the complaint, that the plaintiff is a christian and in fact Armenian and as such has no chance of survival on the territory of Azerbaijan at the current time, is in the opinion of the defendant, pointed speculation with the purpose of stressing the religious aspect as a condition for the granting of refugee status. The plaintiff came to the Czech Republic, from Armenia where she had gained permission to reside in 1990, and where she is in no danger of persecution for reasons of religion. The general description of the situation in Azerbaijan, without a concrete connection to the plaintiff, is not considered by the defendant to be proof of justified fear of persecution for reasons of religion, on the part of the plaintiff.

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

In the application dated Nov. 10, 1992, the plaintiff stated that she had left her native country as a consequence of the war and religious problems. In addition she further stated that in the year 1990 she escaped from Azerbaijan as a result of the war between the Armenians and the Azerbaijanis over Nahorni Karabach. In Armenia where she took refuge she was reproached because her husband was an Azerbaijani. The endless war and living conditions forced her to leave the country.

On Dec. 22,1992 an interview was conducted with the plaintiff by a worker of the office of the Alien and Border Police in Usti nad Labem, in which she stated that in the year 1988 ethnic problems arose in Azerbaijan where she lived from birth. Unknown persons telephoned her at her apartment, and threatened her with rape, if they don't move out. Someone event broke the windows. Subsequent to these occurrences she decided toward the end of November, totake her three children away to relatives in Armenia. There after she lived alone with her partner, who was an Azerbaijani until the end of 1989, when as a result of the constantly worsening situation (unknown persons twiceset the entrance to her home on fire), she left to be with her children in Armenia. Here she lived with relatives in Jerevan, she did not work, and was financially supported by relatives. Over time she thought of going to the CSFR and finally due to insufficient finances she left only with her friend Adichanjan. The reasons for leaving given by her were that she did not want her son to go into the war in Nahorni Karabach and her leaving was also influenced by the fact that she did not have work, or a house; nothing held her in Armenia.

The first instance decision dated Jan. 10, 1993 denied her application. It is evident from its reasoning that it was not proven that the plaintiff was in danger of a justified fear of persecution within the meaning of the provision of § 2 of law no. 498/1990 Sb., concerning refugees. The reasons which the plaintiff presented, are, according to the opinion of the administrative organ of the first instance, the result of the internal political evolution in the states of the UIS and are not reasons for the granting of refugee status. The investigation conducted in response to the plaintiff's application rather justifies the conclusion that the motivation for leaving Armenia was more likely the poor economic situation in Armenia, the concurrent high unemployment, and the plaintiff's resulting problems after her arrival in Armenia. The administrative organ of the first instance therefore came to the conclusion that the plaintiff is not in danger, at the current time, of persecution within the meaning of the provision of § 2 of law no. 498/1990 Sb., and the reasons given by her can not be considered as protection of human rights or a humanitarian case, since it is not evident from the information provided by her, that her human rights are being violated according to international and intrastate norms.

The plaintiff filed an appeal against this decision on Mar. 15, 1993, in which she repeated her previous statements. She stressed that her family was driven out of their native country (that is Azerbaijan) for ethnic and religious reasons, and that they lost their possessions and family home. Event in, Armenia where she took refuge, she could not live as she had lived all her life in Azerbaijan, since her husband was an Azerbaijani and she heard only sarcastic insults and reproach. She was reproached for maintaining contact with Azerbaijanis and for not being very proficient in Armenian. She was told that she had no business being in Armenia because even her education was achieved via Russian. She was degraded many times and she and her children were insulted by it.

The Minister of Interior denied the appeal when he came to the conclusion that the actual situation was sufficiently discovered by the administrative organ of the first instance and the matter was decided properly.

The complaint is well-founded.

According to the provisions of § 2 paragraph 1 of law no. 498/1990 Sb., concerning refugees, refugee status will be granted to the alien who has, in the state of which he is a citizen, a justified fear of persecution for reasons of race, religion, ethnicity, membership in a particular social group, or for political convictions. According to § 3 of the same law (in the version prior to the amendment implemented by law no. 317/1993 Sb., which came into legal force on Jan. 1,1994) it was possible to grant refugee status for reasons of the protection of human rights, and for humanitarian reasons, even to an alien who does not fulfill the conditions of § 2 paragraph 1 of the law.

It is the responsibility of the administrative organ, in the course of proceedings concerning the granting of refugee status, to investigate the reasons for which the alien has applied for the granting of refugee status, at which time law no. 71/1967 Sb.(Administrative Code) should be applied to these proceedings, if the law concerning refugees does not stipulate other wise. Prior to handing down a decision, the administrative organ is responsible for the complete and accurate discovery of the factual conditions concerning the matter, and is not bound to only the recommendations of proceeding participants (§ 3 paragraph 4, § 32 paragraph 1, and § 46 of the administrative code). During the course of proceedings the administrative organ is responsible for obtaining accessible information concerning the situation in the state of which the alien is a citizen, including the possible use of diplomatic or consular channels, the computer data base in the Office of the United Nations High Commissioner for Refugees, and as appropriate through the resources of international organizations concerning themselves with the protection of human rights.

The discovery of the applicant's state citizenship is a precondition for any kind of conclusion in this area.

It did not become clear in the course of the proceedings, exactly what state citizenship the plaintiff, who lived in Azerbaijan until the year 1989 and in Armenia from then until her arrival in the CSFR, holds. The plaintiff herself in her application refuge gave her citizenship a UIS, which is evidently incorrect. Further she stated that in the year 1990 she applied for asylum in Armenia but she was granted only permission to reside there.

In the heading of the appealed decision the defendant administrative organ lists the citizenship of the plaintiff as UIS-Armenia, while in the statement concerning the complaint it then lists only the state citizenship of Armenia. In contrast the plaintiff in her statement supplement dated Jan. 12, 1994 lists herself as a citizen of Azerbaijan and gives the same information in her statement of May. 19, 1994. The administrative organs of both instances were making their decision at a time when after the disintegration of the Soviet Union sovereign republics Azerbaijan and Armenia were formed. Even so no proof was given from which it could be determined which republic the plaintiff had received the state citizenship of thereby removing the contradictions and ambiguities contained within records. Clarification of this matter has fundamental importance in this case because the plaintiff's position should be judged differently if she has Azerbaijanian rather than Armenian citizenship.

Only after providing the supplemental evidence in the indicated area and the indicated area and the discovery of what state citizenship the plaintiff in reality has, can the defendant come to a conclusion, regarding whether or not the plaintiff, in the case of her return to the country of which she is a citizen, would have a justified fear of persecution for reasons of nationality or religion.

The court in this case found that the contested decision contains insufficient evidence and is therefore unreviewable within the meaning of the provisions of § 250f of the Civil Code.

As a result the court annulled the contested decisions as per the same provisions, without ordering proceedings, and concurrently annulled also the decision of the administrative organ of the first instance which is similarly flawed and concurrently returned the matter to the defendant for further proceedings (§ 250f paragraph 2 of the Civil Code).

In the proceedings the plaintiff was freed from court costs and via a decree of the Superior Court in Prague she was assigned an attorney. The assigned attorney conducted three transactions during the course of proceedings (§ 16 paragraph 1 letter a/ and c/ notice no. 270/1990 Sb.) and is entitled to a extra-contractual payment in the amount of 100 Kc as per § 14 and a lump sum payment of 30 Kc as per § 19 paragraph 3 of the same legal regulation. The court therefore allowed the attorney a payment of 399 Kc, which will be paid by the court (§ 140 paragraph 2 Civil Code).

The plaintiff was successful in the matter she should therefore as per the provision of § 250k paragraph 1 sentence 1 of the Civil Code, unlike the defendant, be entitled to reimbursement for costs. According to the record, however, the plaintiff did not incur any costs during the course of the proceedings since she was represented by a court assigned attorney. His complete costs and salary, however, will be paid by the state as per § 140 paragraph 2 Civil Code, and the court therefore as per the provisions of § 250k paragraph 1 sentence 2 Civil Code stated that none of the participants have a right to reimbursement for costs of proceedings.

The Plaintiff was freed from court costs and the court there, according to the results of the proceedings, and within the meaning of § 2 paragraph 2 of law CNC no. 549/1991 Sb., concerning court costs and costs for current issue of criminal record, assigned the defendant the responsibility for payment of complete court costs (500 Kc) to the state into the account of the Superior Court in Prague, and concurrently came to the conclusion that the freedom from court costs as per § 11 paragraph 2 letter a of the same law, does not extend to the defendant. It also simultaneously assigned the defendant the responsibility with the payment of costs of proceedings paid to the attorney (390 Kc) to the state, because within the meaning of the provision of § 148 paragraph 1 of the Civil Code, the state is entitled to reimbursement of court costs which it paid, from the participants, as long as there is no a priori freedom from court costs.

Instruction: This decisions can not be appealed.

In Prague on May. 24, 1994

Chairman of the Senate

JUDr. Michal Mazanec v. r.

Accurate Completion

Signature

(STAMP; Superior Court in Prague)