Административен съд, София град
National case details
Instance: Appellate on fact and law
Case status: Final
Area of law
Identification of the case
- Right to asylum (art. 18 CFREU)
- Protection in the event of removal, expulsion or extradition (art. 19 CFREU)
- Articles 18 and 19 CFREU
- Articles 8 and 15 of Qualification Directive 2011/95/EU
Summary of the case
Victor Yasinefta is an Ukrainian citizen, born in Donetsk, and with Russian nationality. At the beginning of 2015 he left Ukraine legally and he arrived in Bulgaria, where he applied for international protection.
The State Agency for Refugees rejected his application due to lake of evidence that his life was threatened and the current situation in his country of origin does not fall within the scope of the Art. 15c of QD. The decision of the state authority was appealed before the SCAC.
- Administrative judicial enforcement
The Court annulled the SAR's decision insofar as it refused to grant subsidiary protection and returned the case for a new ruling on the application with an indication of granting such protection.
The Court considered the gathered evidences and the new evidences gathered from public sources of information on the situation of the country of origin of the asylum-seeker in regard with Art. 8 of QD. According to the SAR there were no conditions to recognize the refugee status because the applicant has not proved that in case of return to Ukraine he will be prosecuted because of his race, religion, nationality, belonging to a particular social group, or political opinion or conviction. That’s why the litigation in this part was dismissed. On the other hand the Court found that, when discussing the grounds for granting humanitarian status, the administrative authority has acted formally and in a non-exhaustive manner.
According to the information of the German Migration and Refugee Service by the July 2015 report on, published on the EASO website, according to OSCE representatives, the situation in Ukraine has deteriorated considerably in recent months. Along the front line, both sides use tanks and gaffers, the withdrawal of which was negotiated in February's peace talks. In twenty-four hours, as a result of the intercepted strikes for at least two civilians killed.
According to the report of the Human Rights Watch on Ukraine, published in February 2015 regarding events between May and September 2014, hundreds of peaceful inhabitants of Donetsk and Lugansk areas have died as a result of the indiscriminate use of missiles, mortars and artillery on both sides of the conflict. These heavy weapons are also targeting densely populated civilian areas, which is contrary to the laws of war. There are also data on the use of the banned cluster munitions. In areas controlled by the rebels there is a serious breakdown of law and order. Authorities prosecute and arrest without trial people suspected of sympathetic to power in Kiev. Frequent practice is the abduction of adults and children for ransom. The Ukrainian Special Forces and paramilitary formations in the two troubled areas also used widespread kidnappings, torture and illegal detentions to achieve political or even commercial ends, as well as suspicion of sympathy for the two separatist areas. There is no guarantee that no person will suffer severe and personal threats unless he is in any way suspected of co-opting or sympathy with any of the warring parties. Since the beginning of the conflict, more than 450,000 people from troubled regions have been forced to leave their homes and seek refuge in other parts of the country or in other countries, including Russia, Estonia, Latvia and Lithuania.
Similar are the findings in the Amnesty International Human Rights Report published on the same website. It states that more than 4,000 people have died since the conflict in Ukraine. Most of the victims are civilians and have died as a result of the indiscriminate shooting of residential areas on both sides with heavy arms and mortars. Both sides of the conflict have forces and armaments in places where the civilian population is concentrated, the result being a massive fire on the opposite side. According to Amnesty International, the number of displaced persons as a result of the conflict is more than one million. Most of them have found shelter in Russia, but also in other countries, including EU countries.
Considering the collected written evidences the Court found that the returning of the asylum-seeker to his country of origin will be in contradiction with the main basis of refugee protection, the principle of "non-refoulement" of the Geneva Convention of 1951, which is the specialized Convention on the Rights of Refugees.
The Court pointed out that the Qualification Directive also provides for subsidiary protection for persons who cannot be defined as refugees but who, if returned to their country of origin or to their former habitual residence, will be exposed to a serious risk of death penality or execution (Article 15 letter "a"), torture or inhuman or degrading treatment or punishment, (Article 15 letter "b"), serious and individual threat as civilians or persons by reason of indiscriminate violence in situations of international or internal armed conflict (Article 15 letter "c"). Article 18 of the EU Charter of Fundamental Rights guarantees the right to asylum, which includes the respect for the principle of non-refoulement. Article 19 of the Charter states that no one can be forcibly removed, expelled or extradited to a country where he can be sentenced to death, be subjected to torture or other inhuman or degrading treatment or punishment. The reasoning in the Charter states that Article 19 (2) incorporates the relevant ECtHR case-law on the application of Article 3 of the ECHR.
The court pointed out that in its case-law, the ECHR affirms that Article 3 of the ECHR includes one of the fundamental values of a democratic society and it categorically prohibits torture or inhuman or degrading treatment or punishment, however the victim's behavior unwholesome or dangerous is. Pursuant Article 3, the State is liable when an expulsion is made in cases where substantial arguments demonstrated that the person concerned will be exposed to a real risk of torture or other inhuman or degrading treatment or punishment in the State where he was returned to.
Further in its decision the Court considered the important judgments of CJEU - Judgment of 17 February 2009 in Case C-465/07 (Meki Elgafaji, Noor Elgafaji v Staatssecretaris van Justitie) and judgment of 30.01.2014 in Case C-285/2012 (Diakite) and especially the interpretation given by the CJEU of Article 15 (c) of Directive 2004/83. In the first case the CJEU said that article 15(c) of Council Directive 2004/83/EC of 29 April 2004 on minimum standards for the qualification and status of third country nationals or stateless persons as refugees or as persons who otherwise need international protection and the content of the protection granted, in conjunction with Article 2(e) thereof, must be interpreted as meaning that:
- the existence of a serious and individual threat to the life or person of an applicant for subsidiary protection is not subject to the condition that that applicant adduce evidence that he is specifically targeted by reason of factors particular to his personal circumstance and
- the existence of such a threat can exceptionally be considered to be established where the degree of indiscriminate violence characterizing the armed conflict taking place – assessed by the competent national authorities before which an application for subsidiary protection is made, or by the courts of a Member State to which a decision refusing such an application is referred – reaches such a high level that substantial grounds are shown for believing that a civilian, returned to the relevant country or, as the case may be, to the relevant region, would, solely on account of his presence on the territory of that country or region, face a real risk of being subject to that threat.
Considering the interpretation given by the CJEU of Article 15 (c) of Directive 2004/83, SCAC has founded that, in the present case, even if the situation in the applicant's country of origin does not meet the definition of Article 3 of the Geneva Conventions and the Second Additional Protocol of 1977 on Internal Armed Conflict Reaches, the level of indiscriminate violence is so high that there are serious and confirmed grounds for believing that the applicant, as a civilian person, if returned to Ukraine, will suffer the assaults and threats under Art. 15c of QD, due to its very presence on the territory of the country. He must not prove that he is specifically affected by elements inherent in its personal situation within the meaning of the sliding scale under paragraph 39 of the judgment in case C-465/07. Security situation is a dynamic concept and it is constantly changing, and each decision-making body or court should take into account the situation as it is at the time when the dispute is resolved before it. The evidence of the actual situation from which to draw the safety of the life of the asylum-seeker should be up to date. Accordingly, the data relied on by the administrative authority in the contested decision are up to date but they are incorrectly assessed within the meaning of Article 15 (c) of Directive 2004/83 in the light of the interpretation given by CJEU in case C-285/2012.
Role of the Charter and role of the general principles on enforcement
Article 18 CFREU guarantees the right to asylum, which includes the respect for the principle of non-refoulement. Article 19 CFREU states that no one can be forcibly removed, expelled or extradited to a country where he can be sentenced to death, be subjected to torture or other inhuman or degrading treatment or punishment. In this case the Charter imposes to the National Authority to observe the principle of non refoulement, even if the situation in the applicant's country of origin does not meet the definition of Article 3 of the Geneva Convention of 1977, because the level of indiscriminate violence is so high that there are serious and confirmed grounds for believing that the applicant, as a civilian person, if returned to Ukraine, will suffer the assaults and threats under Art. 15c of QD, due to its presence on the territory of the country.
Elements of judicial dialogue
- Direct dialogue between CJEU/ECtHR and National court (out of preliminary reference procedure)
- CJEU C-465/07, Meki Elgafaji, Noor Elgafaji v. Staatssecretaris van Justitie
- CJEU C-285/12, Diakite
The Administrative Court applies the interpretation of Article 15 (c) Qualification Directive provided by the CJEU C-285/2012 case. The Court also refers to the sliding scale under paragraph 39 of the CJEU C-465/07 case to confirm that the applicant must not prove that he is specifically affected by elements inherent in its personal situation.