Skip Ribbon Commands
Skip to main content
03/06/2022
CZ: The Supreme Administrative Court accepted an appeal lodged by a Ukrainian national based on the safe country of origin concept and held that the case should be re-considered in light of the war in Ukraine.

ECLI
Input Provided By
EUAA Networks
Source
Nssoud.cz
Other Source/Information:
Referral to the CJEU
No
Original Documents
Type
Judgment
Relevant Legislative Provisions
Directive 2001/55/EC on minimum standards for giving temporary protection.; European Convention on Human Rights;
Reference
Czech Republic, Supreme Administrative Court [Nejvyšší správní soud], M.K. v Ministry of the Interior, 5 Azs 401/2021 - 31, 03 June 2022. Link redirects to the English summary in the EUAA Case Law Database.
Permanent link to the case
https://caselaw.euaa.europa.eu/pages/viewcaselaw.aspx?CaseLawID=2754
Case history
Related cases:
Abstract

The applicant, a Ukrainian national, first applied for protection on 28 June 2020, after he received a three-year administrative expulsion order from the police for illegal stay and violations of the law. In his application, he mentioned that he had been involved in the Ukraine war and that the police and military were looking for him. The applicant made the same argument in his second application on 5 July 2021. The only new fact presented was that his parents did not allow him in the house, and he had nowhere to return. However, none of his allegations indicated that he would face persecution or that he would risk serious harm for the reasons listed in line with the Asylum Act.

The applicant appealed the decision of the Ministry of the Interior before the Regional Court of Ostrava, which rejected the claim as unfounded and determined that the new fact stated by the applicant was not new since this was already known to him earlier and he had the opportunity to assert it. The Ministry of the Interior was criticised by the Regional Court for gathering information on the applicant's country of origin from sources before the proceedings on the applicant's first application. Ukraine was considered a safe country of origin by the Czech Republic, except for those regions controlled by separatists, which did not concern the applicant, and the applicant did not express any concerns that would lead to an assessment during the proceedings.

The applicant filed a cassation complaint against the decision of the Regional Court and argued that the court had correctly determined that the Ministry of the Interior had not addressed recent changes in the context of the country of origin, which would have had an impact on the evaluation of the repeated application. He argued that the Regional Court did not consider up-to-date information, thus failing to fulfil the obligation to ascertain the facts without reasonable doubt.

The Supreme Administrative Court ruled it was important to consider that, since the Regional Court’s decision on 29 October 2021, the Russian Federation’s attack on Ukraine in 2022, had altered the security situation in Ukraine. The provisions of Articles 2 and 3 of the European Convention on Human Rights as well as the principle of non-refoulement were also taken into consideration in the ruling. The judgment of the Regional Courts was overturned, and the matter was returned to the court for further proceedings.

The Supreme Administrative Court further ruled that it was not necessary to refer the applicant to the possibility of submitting a new application for recognition of international protection or to use temporary protection under Act No. 65/2022, the national law implementing the EU Temporary Protection Directive, as it cannot be presumed that it will apply, as the applicant arrived in the Czech Republic long before the war started on 24 February 2022. The Supreme Administrative Court concluded the Regional Court would have to reassess the applicants’ request in light of the current situation in Ukraine and the consequences resulting from it.

Country of Decision
Czech Republic
Court Name
CZ: Supreme Administrative Court [Nejvyšší správní soud]
Case Number
5 Azs 401/2021 - 31
Date of Decision
03/06/2022
Country of Origin
Ukraine
Keywords
Non-refoulement
Safe Country concept/Safe Country of Origin/ Safe third country
Temporary protection
Torture or inhuman or degrading treatment or punishment
RETURN