According to the contribution of the EASO Courts and Tribunals Network:
The applicant, Turkish national of Kurdish ethnicity, with the domicile in south-eastern Turkey (Turkish Kurdistan) claimed in his application for international protection a well-founded fear of persecution on the basis of his nationality and political opinion, because he had been suspected by the Turkish authorities of being a PKK member or supporter. The main reason for this suspicion was the fact that applicant’s brother had been an active PKK fighter who was killed by the Turkish army. The applicant, who worked for his family as a shepherd, was during the year preceding his departure from the country of origin many times approached by members of Turkish army, who demanded him to reveal information about places of hiding of PKK militants and after his reply that he is not aware of their location he was each time beaten, sometimes with a rifle to his head, than put into a cellar at the police station where the torturing of the applicant continued with the aim to force him to disclose the aforementioned information. Subsequently, he was each time released but the attacks against him and his family continued until his departure from the country. However, the administrative authority (Ministry of Interior) did not grant international protection to the applicant and his action for annulment of that decision was subsequently dismissed by the Regional Court in Ostrava.
Upon the cassation complaint, the Supreme Administrative Court quashed the judgment of the Regional Court and the administrative decision and remanded the case back to the administrative authority. On the basis of applicant’s statements, whose credibility had not been disputed by the administrative authority, the Court had no doubts that the applicant had already been repeatedly exposed to torture as the most serious form of ill-treatment which certainly reached by its intensity the threshold of persecution in terms of Arts. 9(1) and Arts. 9(2)(a) of the Recast Qualification Directive as well as the threshold of serious harm in terms of Art. 15(b) of the said Directive. The connection between the persecution of the applicant and its relevant reasons within the meaning of Art. 9(3) of the Recast Qualification Directive may also be easily established, according to the Court, because the applicant was persecuted for the reasons of his alleged political opinion (Art. 10(1)(e) of the Recast Qualification Directive) as being regarded by the Turkish armed forces to be an active member or at least supporter of PKK. The Court confirmed that in accordance with Art.10(2) of the Recast Qualification Directive it is immaterial when assessing if the applicant has a well-founded fear of being persecuted whether he possesses (in this case political) characteristic which attracts the persecution provided that such a characteristic is attributed to the applicant by the actor of persecution (here the Turkish army). Moreover, the persecution of the applicant for the reason of his real or attributed political opinion is in this case closely related to other reason for his persecution which is his nationality within the meaning of Art. 10(1)(c) of the Recast Qualification Directive, in other words, his Kurdish origin.
The Court further reiterated that according to Art. 4(4) of the Recast Qualification Directive past persecution or suffering of serious harm is not a condition but serious indication of a well-founded fear of persecution or a real risk of serious harm in the country of origin in the future, unless there are good reasons to consider that such persecution or serious harm will not be repeated. Both the administrative authority and the Regional Court failed to produce such good reasons to believe that the above described persecution of the applicant will not be repeated in the future. They both argued that the aforesaid treatment of the applicant by the members of Turkish army can be considered as an individual excessive practice against which the applicant should have sought protection by legal means in the country of origin. The Supreme Administrative Court has shown by a detailed analysis of the COI gathered by the administrative authority (reports on Turkey produced by UK’s Home Office, Amnesty International, Human Rights Watch or Asylum Research Consultancy) that this presumption is in sharp contradiction with this COI. On contrary, the COI sources as well as numerous ECtHR cases report long term, widespread discrimination and persecution imposed not only on the political representatives of the Kurdish minority and on persons that are suspected to collaborate with illegal PKK, but, especially during the disproportionate military operations against PKK in Turkish Kurdistan, these repressions, ill-treatment (incl. cases of disappearing of persons) and forced displacement massively hit also regular Kurdish population in that region. According to the reports, the situation deteriorated after the fall of the ceasefire between the Turkish armed forces and PKK in 2015 and further dramatic escalation of human rights violations (also against the Kurdish population) resulted from the reaction of the Turkish regime, led by authoritarian president Recep Tayyip Erdoğan, to the unsuccessful military coup d’état in 2016. Among other measures, like the suspension of Turkey’s obligations under the ECHR and ICCPR, thousands of magistrates have been detained or lost their function which led to a paralysation of the Turkish judiciary and loss of its independence. Under these circumstances, according to the Supreme Administrative Court, it is very unlikely that the applicant would have a chance to seek protection against the aforesaid persecution by taking his case to the Turkish authorities or courts.
The Court also found the conclusion of the administrative authority, that the tensions in Turkish Kurdistan cannot be regarded as an armed conflict within the meaning of Art. 15(c) of the Recast Qualification Directive, to be completely at odds with the relevant COI which shows an on-ongoing guerrilla war of PKK against Turkish military and security forces which have been responding to it by extensive military operations. The Court concluded that undoubtly the situation in south-eastern Turkey meets the definition of internal armed conflict provided by CJEU’s judgment of 30 January 2014, Diakité, C-285/12 and this conflict may even have an international dimension if Kurdish armed forces operating in the neighbouring regions of Syria and Iraq are involved as the Turkish government has claimed when justifying its military interventions into these countries. The Court also cited the sliding scale concept as defined by CJEU’s GC judgment of 17 February 2009, Elgafaji, C-465/07 and emphasized that the applicant may be specifically affected by the spread of indiscriminate violence in the region by reason of factors particular to his personal circumstances already described above.
The Court also noted that the administrative authority and the Regional Court failed to offer persuasive arguments why they believe that the applicant would be able to find internal protection within the meaning of Article 8 of the Recast Qualification Directive in other parts of Turkey, for example in Istanbul or in other large cities outside Turkish Kurdistan, namely it is not clear whether he would be able, by that relocation, to escape the aforesaid persecution or serious harm and whether, as a shepherd with an education of 5 years of elementary school, he can be reasonably expected to settle there.
Unlike the administrative authority or the Regional Court, the Court found irrelevant that the applicant had expressed, during the interview with the administrative authority, his support for the political goals of PKK. Even though PKK has been included on the EU list of terrorist organisations. In this respect, it is crucial that it has not been established so far that the applicant should be excluded from the refugee status or subsidiary protection in accordance with Arts. 12(2) and 12(3) and Arts. 17 of the Recast Qualification Directive. The Court quoted CJEU’s GC judgments of 9 November 2010, B a D, C‑57/09 a C‑101/09, and of 31 January 2017, Lounani, C-573/14, as regards the participation of an applicant for international protection at the activities of a terrorist organisation and concluded that no such evidence has been produced so far in the case at hand.
The Court instructed the administrative authority that in the course of further procedure it is obliged to grant refugee status to the applicant unless new circumstances would arise, namely as regards the credibility of applicant’s statements, eventual reasons for his exclusion or the possibility of his internal protection in another part of the country of origin. The Court emphasized that if this binding legal opinion was disregarded by the administrative authority the administrative courts would be subsequently obliged, by the virtue of applicants’ right to an effective remedy provided by Art. 46 of the Recast Procedure Directive in conjunction with Art. 47 of the EU Charter of Fundamental Rights, as interpreted by CJEU’s GC judgment of 29 July 2019, Torubarov, C-556/17, to directly grant to the applicant refugee status, although they would otherwise lack competence under the national law to do so.
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