Ciobanu v. Minister of Interior, File No. SOU-30-192/92 (1994)
|Publisher||Czech Republic: Superior Court|
|Publication Date||24 June 1994|
|Citation / Document Symbol||SOU-30-192/92 (1994)|
|Cite as||Ciobanu v. Minister of Interior, File No. SOU-30-192/92 (1994), SOU-30-192/92 (1994), Czech Republic: Superior Court, 24 June 1994, available at: http://www.refworld.org/docid/3ae6b69d14.html [accessed 30 July 2015]|
|Disclaimer||This is not a UNHCR publication. UNHCR is not responsible for, nor does it necessarily endorse, its content. Any views expressed are solely those of the author or publisher and do not necessarily reflect those of UNHCR, the United Nations or its Member States.|
The Czech Republic
In the Name of the Republic
The Superior Court in a senate composed of the Chairwoman JUDr. Vera Simunkova and judges JUDr. Jitka Lesna and Mgr. Jana Brothankova, in the matter of the plaintiff CIOBANU Cheorghe Dumitru, a citizen of Rumania, currently residing at the refugee camp Jezova, 294 21 Bela pod Bezdezem, represented by JUDr. Karel Kolar, an attorney in Mlada Boleslav, Kaudianova 135/1, against the defendant Minister of Interior, decided in the complaint against the defendant's decision dated Mar. 30,1993, file no.
I. The decisions of the Minister of Interior of the Czech Republic dated Mar. 30, 1993, file no. SOU-30-192/92, and the decision of the Office of the Alien and Passport Services of the Federal Police Force, dated May. 27, 1992, file no. PCPS-1205/C-222-92, are annulled.
II. The matter is returned to the defendant for further proceedings.
III. None of the participants are entitled to reimbursement for costs of proceedings.
IV. The salary of the plaintiff's legal representative, attorney JUDr. Jiri Kolar, 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.
V. The defendant is responsible for payment, to the state, into the account of the Superior Court in Prague the amount of 760 Kc, within 3 days of this decision entering into legal force.
In the complaint filed with the Superior Court in Prague on May. 28, 1993, the defendant requested the annulment of the defendant's decision cited in the introduction, which denied his appeal and confirmed the decision of the Director of the Office of the Alien and Passport Services of the FPF, dated May 27, 1992, file no. PCPS-1205/C-222-92, concerning the denial of his application for the granting of refugee status.
In the submitted complaint the plaintiff objected that he considers the decision to be illegal because the reasons for which he requested refugee status were not properly evaluated. In the complaint's supplement he pointed out procedural flaws which could have had an effect on the legality of the decision. He stated that first of all he left his country of origin for political reasons, since in Jun. 1990 he participated, together with his wife, in a demonstration, and protested against the FNS, and was as a consequence beaten and arrested by the police. In December 1990 his wife managed to get into the United States and asked for political asylum there, the plaintiff also received an invitation from his aunt, but his application for exit was denied and he was told he would have to wait 5 years because of his wife. Thereafter he was interrogated by the police several times, in January 1991 he was let go from work, and his apartment was taken away, all because his wife had left. The police continued to persecute his. He would like to leave to be with his wife but he will not be able to until 1996. Further the plaintiff stated that he is deaf and mute and that during the course of proceedings with the administrative organs of the first and second instance, an interview conforming to the provision of the Administrative Code (§ 32 and 33 of law no. 71/1967), was not conducted with him. The plaintiff is deaf and therefore it was necessary to call on an interpreter familiar with sign language. Instead the administrative organ restricted itself only to the use of a Rumanian language interpreter, whereby the plaintiff did not have the opportunity to express himself as to the conditions and reasons surrounding and leading to his departure from the country.
The plaintiff recommended the denial of the complaint, since it was not proven that the plaintiff fulfilled the conditions as per § 2 and 3 of law no. 498/1990 Sb. In the version in force at the time of the decision. In the course of the appeal proceedings a written interview was conducted with the plaintiff, because he is deaf and mute, in which the primary reason given for leaving was the persecution by the police because his wife had emigrated.
The court obtained the administrative records in the matter from which the following facts became evident:
The plaintiff filed the application for the granting of refugee status on Mar. 4, 1992 via a printed application which he signed. The application is filled out according to the information interpreted by the interpreter Bigas. It is not evident whether this involves an interpreter of Rumanian, sign language, under oath, or possible an interpreter listed in the Digest of Experts and Interpreters. The application made to the defendant states that he is married, the wife is in the USA, he is a member of the PNL, of orthodox faith, left the country for political reasons, wants to travel via the CSFR later to leave for the USA. An supplement to the application is a declaration and a record of the interview conducted with the plaintiff.
From the written statement filed by the plaintiff in Rumanian on Mar. 9, 1992, translated by the same interpreter, it is evident that the plaintiff left Rumania because he had difficulties with the police, he participated in two or three meetings in Bucharest, on Jun. 13, 1990 he demonstrated, with his wife against the FNS, thereafter he was wanted by the police and beaten about the head with baton. In September and October 1990 he was interrogated at home. His wife emigrated to the United States on Dec. 18, 1990 after which the police hounded him constantly, he was called in by the police several times, at which time he was beaten and threatened. In 1991 he decided to leave Rumania at the invitation of his aunt in America. The police denied him a visa and he was again beaten at the police station. In January of 1992 the state took away his apartment and so he had to move in with his parents. On Feb. 28, 1992 he was able to obtain a tour trip to the CSFR.
A declaration concerning financial support established in the USA for the plaintiff, and also the copy of his diplomas attesting to his educational level, are attached to the application.
According to the record of the interview dated Mar. 23, 1992, written by officer Tomaskova of the Office of the Alien Police and Passport Services of the FPF (organ of the first instance), the applicant is deaf and mute, from the year 1991 has been a member of PNL, the interview with him was conducted in writing in Rumanian. Besides the above stated facts it is evident from it that the applicant was interrogated by the police concerning why he participates in PNL demonstrations and why he is a member, in September and October 1990, at this time he was not physically attacked. The police were very rough. Subsequent to the departure of his wife for the USA the police visited him in January and June 1991 and in January 1992, each time he was beaten. In January 1991 he was fired from his job where he worked as a machinist for the reason that his wife had emigrated and as a result no one else would hire him. In January 1992 his right to the use of the apartment was revoked. The policed did not allow him to travel to the USA based on the invitation. The written declaration of the plaintiff, from which this record of the interview was created is not in the record, the record is not signed by the plaintiff, nor are the authenticity and truth of the statements contained herein verified in any other way. The record only contains a supplemental statement by the interviewer in the matter with the recommendation for the denial of the application, in which the plaintiff's information is summarized and stated that in Rumania there are more than 100 political parties allowed and that there is no persecution for leaving the country and anyone can apply to exit the country. The plaintiff was not able to give specifics of the police interrogations and the claim that he was beaten can not be proven by him in a reliable way (even through the testimony of another person).
The administrative organ of the first instance denied the application for the granting of refugee status in its decision dated May. 27, 1992. The statement that it was not evident from the application, nor was it proven that in his home country the applicant was in danger of justified fear of persecution for reasons of race, religion, nationality, membership in a particular social group, or for political convictions. After summarizing the plaintiff's claims and other gathered information the administrative organ came to the conclusion that the plaintiff left the country for economic reasons, and so far as the attack by the police is concerned and detainment, even this is not justification for the granting of refugee status. If the plaintiff felt himself to be in immediate danger he could have applied for asylum in Hungary. The administrative organ also did not accept the presented reasons as applicable under the constitution, § 2 of the law concerning refugees, that is reason of the protection of human rights or humanitarian reasons.
The plaintiff filed an appeal, written in Rumanian, against this decision on Jul. 3, 1992, the translation of which was completed by Ing. Iov Niculae. According to the note, the insufficient logic of some of the sentences is as per the original. It is not evident from the record whether in this case an interpreter under oath was use or on listed in the digest of experts and interpreters at the appropriate court. In the appeal the plaintiff repeated the previously presented reasons, stressed that in his case economic reasons are not germane, rather that he feared the police who had interrogated germane, rather that he feared the police who had interrogated him several times and as a rule he was also beaten at these times, because he had participated in meetings and also because his wife had emigrated.
The record of the deposition conducted on the basis of the interview which was conducted with the plaintiff on Jan. 18, 1993 within the framework of the appeal proceedings states, that the plaintiff is deaf and mute, can not even read lips, everything must be written down on paper, this is the only way communication is possible. The record in Czech gives the questions asked and their answers, from which it is evident, that the main reason which the plaintiff gives for his leaving the country is the fear of persecution by police for the reason that his wife emigrated. She also left because of her fear of the police which had arrested them, beaten them, and visited them at home, after their participation in a meeting. His wife wanted to help him but the sponsoring documents were not sufficient for the American Embassy in Prague and he was not granted a visa. He was refused a visa because the sponsoring documents must apparently come from the wife not from the wife's cousin. The plaintiff feels safe in the CR in contrast to Rumania. The interview was conducted in Rumanian by workers of the defendant. The original Rumanian text of questions and the plaintiff's written answers is not contained in this record.
The decision of the Minister of Interior of the Czech Republic dated Mar. 30, 1993 denied the decision of the administrative organ of the first instance was confirmed with the justification that the applicant did not present any new facts which would cast doubt on the original decision. After a summary of the reasons given by the applicants, the defendant derived from them the conclusion that the applicant was not discriminated against nor persecuted for reasons listed in § 2 of the law concerning refugees and does not fulfill even the conditions as per § 3 because his case was not found to be one of a serious violation of human rights or humanitarian reasons. The decision of the first instance, according to the conclusion of the defendant, was issued on the basis of the discovery of the actual facts in the matter, and the applicant does not fulfill the conditions for the granting of refugee status.
The complaint is well-founded.
According to § 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, nationality, membership in a particular social group or for political convictions. According to § 3 of the same law in the version applied at the time of the issue of the contested decision it was possible to also grant refugee status for reasons of the protection of human rights and for humanitarian reasons even top an alien who does not fulfill the conditions in § 2 paragraph 1 of the law.
It is the primary responsibility of the administrative organ, in the course of proceedings for the granting of refugee status, to investigate the reasons for which the alien is requesting the granting of refugee status, in which case this proceeding is governed by the provision of law no. 71/1967 Sb. (Administrative Code), if the law no. 498/1990 Sb. does not stipulate otherwise. The administrative organ is responsible for discovering, prior to issuing a decision, accurately and completely the actual facts in the matter and is not bound only by the recommendations of participants in the proceedings (§ 3 paragraph 4, § 32 paragraph 1 and § 46 Administrative Code). During the proceedings concerning the granting of refugee status it is the responsibility of the administrative organ to obtain accessible evidence concerning the situation in the country of the applicant, including for instance the possible use of diplomatic and consular channels, the computer data base (CDR) in the United Nations Office of the High Commissioner for Refugees, where there is a substantial concentration of information concerning human rights in specific nations, possibly event through the resources of international organizations concerning themselves with the protection of human rights. It is evident from the application that the applicant was led to depart from his country by the political reasons originally claimed.
It became evident first of all from the submitted administrative record that during the period from the filing of the application, Mar. 9, 1992, to the time of the final decision, Mar. 30, 1993, the administrative organ did not conduct the relevant investigation in a legal manner, specifically it did not hear the plaintiff as a participant in the proceedings as to the reasons for his emigration and did not obtain any supporting evidence to support the possible discovery that the reasons are contradictory or untrue. The "notes on the interview" added to the record cant not be considered proof, because they were never signed by the plaintiff and even along formal lines do not fulfill the presuppositions for acceptable evidence.
According to § 7 paragraph 1 of law no. 498/1993 Sb., an alien who has applied for the granting of refugee status, is entitled to the services of an interpreter in connection with these proceedings, free of charge.
The administrative organ erred if it conducted the proceedings with the applicant without a sign language interpreter, since this case concerns a deaf and mute applicant and with this physical limitation, solely written statements cans not be relied upon. (not to mention that as the administrative organ itself found, the applicant can not even read lips). In addition, illogical sentences are evident from the translation of the written statements in the cited case, therefore, it is not clear if the applicant can even express himself sufficiently in writing, in order that a reliable conclusion could be drawn, concerning the reason for the filing of the application. The notes from the interviews conducted by the defendant are not documented with a copy of the original text of the personal statement of the plaintiff, for instance his signature agreeing with the contents of the text. The statements of the applicant were in addition translated by persons, who it is not clear in the record are bound by oath as per the provisions of § 24 paragraph 2 of law no. 36/1967, concerning experts and interpreters in versions of later regulations, or that they are listed in the digest of interpreters. The cited law within the meaning of § 1 applies also to state organs.
The cited illegal procedure is a process flaw which could have had the effect of making the decision illegal. The administrative organ did not properly investigate via this procedure, what political convictions the applicant has, it was satisfied simply with the applicant being a member of PNL and his participation in meetings in opposition to the ruling party, for which he was persecuted together with his wife and thereafter he was persecuted in connection with her emigration. Only after conducting an interview focusing on the cited information can the administrative organ judge, whether or not the applicant actually has some kind of political convictions, for which he could be persecuted or at least have fear of persecution, and if this fear, in view of the verified situation in the country of origin, could be justified.
If the appeal administrative organ confirmed the decision of the first instance with a reference to the properly investigated real conditions, concerning the matter, it was wrong, since as it is stated above, the administrative organ does not contain a single piece of proof, concerning the verification of facts given by the applicant, concerning his persecution, nor about what kind of political convictions the applicant actually has, and if these actual convictions can be the targets of persecution. The administrative organs should have gathered objective evidence for investigation, whether or not at the time the applicant indicated, protesters were arrested, and they were investigated as to their participation in opposition party meetings. If and how at this time it was possible to exit the country, ie. were the members of families who had left the country legally or illegally followed. In this case the opinion of the administrative organ can not be considered proof unless there is corroboration, ie. an attached document from which this opinion is derived, and that the facts concerned are known to the administrative organ in the course of its operation.
If the administrative organ's discoveries were based on assumptions, not supported by evidence, and therefore unproven, a decision such as this is unreviewable within the meaning of the provisions of § 250f Civil Code. For these reasons the Superior Court in Prague annulled the contested decision of the defendant together with the decision of the Administrative Organ of the first instance, which is burdened with the same flaws (provisions 250j paragraph 2 Civil Code).
In addition the court feels it necessary to add that neither of the contested decision were properly justified, since the administrative organs, after summarizing the statements of the applicant, simply stated the conclusion, that he does not fulfill the conditions in the law, without conducting a proper logical evaluation reflected in the discovered facts contained in the record. Then in a completely illogical manner, in view of the fact that this concerns a deaf and mute applicant, (more dependant than unhandicapped persons, on help of relative from abroad or the state whose territory be has reached) the state did not justify why the applicant does not fulfill event the humanitarian reasons, since the law at the time the decision was issued allowed the granting of refugee status for these reasons.
The plaintiff was completely freed from court costs in the proceedings by order of the local court, dated Jun. 14,1993, file no. 6A 571/93-7, and he was assigned an attorney by the same order, who performed two transactions during the course of proceedings, for which he is entitled to the extra-contract payment of 100 Kc for each transaction and a 30 Kc lump sum for each transaction (§ 14 and 16 paragraph 1 and § 19 paragraph 3 public notice no. 270/1990 Sb.). The court therefore allowed the attorney a payment in the amount of 260 Kc, which will be paid by the court.
The plaintiff was successful in the matter and he should therefore, in contrast to the defendant, be entitled to reimbursement for costs of proceedings within the meaning of the provisions of § 250k paragraph 1 sentence 1 Civil Code). According to the record however, the plaintiff did not incur any costs as a result of the proceedings, since he was represented by a court assigned attorney. His complete costs and salary will be paid by the state however, within the meaning of the provisions of § 140 paragraph 2 Civil Code, in applying the provisions of § 250k paragraph 1 sentence 2 Civil Code, the court stated that none of the participants have the right to reimbursement for costs of proceedings.
The plaintiff was freed from court costs, the court therefore as per the results of the proceedings assigned the defendant, within the meaning of the provisions of § 2 paragraph 2 of law CNC no. 549/1991 Sb., concerning court costs and costs for copy of criminal record, the responsibility of paying the state the entire court costs (500 Kc) into the account of the Superior Court in Prague, while concurrently coming to conclusion, that the freedom from court costs, as per § 11 paragraph 2 letter a of the same law, does not extend to the defendant. At the same time it assigned the defendant the responsibility of paying the state the costs of proceedings paid for the salary of the attorney, that being 260 Kc, because within the meaning of the provision of § 148 paragraph 1 Civil Code, and as associated with the provisions of § 246c Civil code, the state, in contrast to the participants, is entitled to reimbursement of proceeding costs, which it had paid, depending on the results of the proceeding costs, which it had paid, depending on the results of the proceeding, so long as there are no presuppositions of being freed from court costs.
Instruction: This decision can not be amended.
In Prague on Jun. 24, 1994
Chairwoman of the Senate
JUDr. Vera Simunkova
(STAMP: Superior Court in Prague)