Helsinki Administrative Court Decision of 5 February 2004
|Publisher||Finland: Helsinki Administrative Court|
|Author||Helsinki Administrative Court|
|Publication Date||5 February 2004|
|Citation / Document Symbol||04/0176/7|
|Cite as||Helsinki Administrative Court Decision of 5 February 2004, 04/0176/7, Finland: Helsinki Administrative Court, 5 February 2004, available at: http://www.refworld.org/docid/421f08254.html [accessed 2 October 2014]|
|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.|
1. Demands in the Administrative Court
The decision of the Directorate of Immigration must be reversed and the appellants granted asylum or a residence permit on grounds of need of protection.
The appellants originate from Grozny. X [the father of the family] worked as a guard in the National Forces of Chechnya in Grozny between 1996 – 1998. He participated in the first Chechnyan war in the Chechnyan forces between 1994 and 1996. After the war he participated in the electoral campaign of Mr. Mashadov. In 1999 the appellants fled to the border between Chechnya and Ingushetia where they lived in train cars and tents until the spring of 2000. In the end of April the family returned to Grozny. Around Mayday X was arrested in an operation organised by the Russians and was detained for three weeks. He was held in a pit where cold water was poured into. He was humiliated and forced, i.a., to bury bodies of Chechnyan civilians. He was maltreated by being hit with a gun, kicked and put through mock executions. He was released when his relatives paid a ransom. After his release X travelled with his family back to Ingushetia to live in a tent camp.
In the autumn of 2001 the appellants returned to Grozny and X found out that the Russian soldiers had been looking for him. X left his family at home and went hiding to his relatives. Upon returning home he was told that soldiers have threatened and intimidated his family at their home. The family was forced to leave again to a Sernovodsk village in the Ingushetian border. X visited his parents in Grozny when it was possible. He visited Grozny the last time in May 2002 and was arrested. X was released on condition that he would bring an automatic weapon or 1000 USD to the Russians. Should he fail to do so his family would be retaliated against. After this threat the family decided to flee from Chechnya.
The appellants were stopped at the Finnish border and suspected without grounds on forgery of the visas. They had not claimed asylum the same day they entered Finland. There purpose was to continue to Norway where they had relatives. Finland was a completely strange country to them and they were not aware that they could claim asylum even in Finland. They claimed asylum only after having understood that they cannot continue their flight to Norway to their relatives.
According to Y [the mother of the family] every Chechnyan knows his "teip" [clan, tribe] and her "teip" is Hachero. Y had not fully understood in the additional interview on 5 September 2002 the pronunciation of the interpreter and, therefore, did not understand the word "teip".
The appellants have the internal passports of the Russian Federation, in which there nationality has been marked Chechnyan.
The appellants have presented well-founded reasons for their fear of being subjected to serious violations of their human rights in their home country owing to nationality ( Chechnyans from Grozny), political opinion (X's anti-Russian Government opinion and action) and membership of a particular social group. The human rights situation in the Russian Federation and Chechnya has not changed considerably after the appellants left their country. The armed conflict continues in Chechnya, and it affects the security situation in the entire Russian Federation especially as concerns those with Chechnyan ethnic origin. The appellants cannot reside safely in any part of the Russian Federation. Returning them back under the present circumstances would jeopardise the principle of non refoulement binding upon Finland. The appellants must, at the very least, be granted a residence permit on grounds of need of protection.
2. Procedure in the Administrative Court
The Directorate of Immigration has given its statement.
The appellants have given their rejoinder.
The appellants must be recognised as refugees pursuant to Article 1 A (2) of the 1951 Geneva Convention. Helsinki Administrative Court revokes the decision of the Directorate of Immigration and return the case to the Directorate for a new procedure.
4. Statement of the reasons by the Court
Pursuant to Section 30 Subsection 1 of the Aliens' Act an alien shall be granted asylum and issued a residence permit, if he is outside the country of his nationality or his habitual residence owing to a well-founded fear of persecution for reasons of race, religion, nationality, membership of a particular social group or political opinion and, owing to such fear, is unable or unwilling to avail himself of the protection of that country.
The Handbook on Procedures and Criteria for Determining Refugee Status published by the UNHCR states (paragraphs 51 – 53) that there is no universally accepted definition of "persecution". A threat to life or freedom on account of race, religion, nationality, political opinion or membership of a particular social group is always persecution. The subjective character of fear of persecution requires an evaluation of the opinions and feelings of the person concerned. Any actual or anticipated measures against him must necessarily be viewed in the light of such opinions or feelings. Interpretations of what amounts to persecution are bound to vary due to variations in the psychological make-up of individuals and in the circumstances of each case. In addition, an applicant may have been subjected to various measures not in themselves amounting to persecution (e.g. discrimination in different forms), in some cases combined with other adverse factors (e.g. general atmosphere of insecurity in the country of origin). In such situations, the various elements involved may, if taken together, produce an effect on the mind of the applicant that can reasonably justify a claim to well-founded fear of persecution on "cumulative grounds".
X and Ysaid in the asylum interview conducted on 19 and 18 July 2002 that they are Chechens and had lived in Grozny. Their accounts are similar to their asylum appeal. The Directorate of Immigration has in its decision considered that certain facts weaken the credibility of X and Y but the decision does not indicate that the Directorate questioned X or Y's own account of their ethnic origin. It can be deduced from the decision that the Directorate has considered that the appellants originate from Chechnya. But the decision does not bring forward such grounds. X and Y's account were not questioned in such a manner, it could not be the basis of the evaluation of their and their children's need of international protection.
The reports at the disposal of the Administrative Court on the situation of Chechnya and Chechnyans in the Russian Federation support the account of the appellants. According to the reports the possibilities for Chechnyans to receive protection from the authorities of their country is questionable. The reports do not show that the situation would in the short term change. According to the report UNHCR Paper on Asylum Seekers from the Russian Federation in the context of the situation in Chechnya, published on February 2002, the Chechnyans in internal exile do not have in various administrative regions of the Russian Federation the opportunity to internal flight due to the local regulations restricting movement and the right to chose domicile and due to the concern of the local authorities for possible ethnic conflicts and the wish to prevent terrorist acts. As concerns Ingushetia, the report states that refugees there are in danger of being pressured to leave the country and the UNHCR does not, for this reason advice to consider Ingushetia a reasonable option for placement for the ethnic Chechens from Chechnya.
X says that he has been arrested and maltreated in Chechnya for his ethnic background and that his family has been threatened. Furthermore, X has says, that he has participated in the first Chechnyan war in the Chechnyan troops between 1996 and 1998.
The appellants have a well-founded fear of persecution for the reason of belonging to an ethnic group, and X possibly also for the activities mentioned above. They cannot be required to return to Chechnya under the present Chechnyan circumstances. Taken into consideration the position of Chechnyans in the Russian Federation the Administrative Court holds, that the appellants cannot reasonably be assumed to settle in other parts of Russia. The appellants shall be recognised as refugees pursuant to Article 1 A (2) of the 1951 Geneva Convention and shall be granted asylum pursuant to Section 30 Subsection 1 of the Aliens' Act.