Supreme court, Room of the Contentious-administrative thing, Sentences 29 January 2019
Newspaper the Law, Number 9369, Section the Sentence of the day, 4 of March of 2019, Publishing Wolters Kluwer
Decided the delivery asylum by the same facts will not be able to be granted that considered to accede to extradition, but when the risk for the life or integrity derives from later and different facts.
The Supreme one confirms the resolution of the asked for subsidiary protection and Department of the Interior that denies the right of asylum to a national of Oman on which an extradition procedure weighs, opened by virtue of international order of halting at the request of the justice of the Sultanate of Oman, for being condemned in sentence by crime of fraud to a prison sentence of three months to two years and fines between 10 and 300 riyals.
It makes clear the sentence that the refusal of the asylum does not bring cause in to be condemned, but in which do not concur the budgets for his concession because the purpose spurious of the request of the international protection is evident in the case, to only avoid extradition.
The temporary factor of to have asked for the international protection of right asylum when the delivery in the extradition procedure is urged debilitates of forceful way the veracity of the allegations of interested insofar as it is persecution object, being in agreement the Supreme one in which such allegations are only a strategy to avoid extradition.
It either does not give to credibility the Room to the tried denunciations on supposed irregularities of the procedure that the interested one in its Country was put under and that I justify extradition, because the probatory material was valued and rightly it was considered that there was risk of cruel or degrading no treatment or which outside put under the protested one tortures.
Questioned then with casacional character the incidence of the Art. 1.F.b) of the Convention on the Statute of the Refugees of 1951 (LAW 12/1951) with the object of denying - or not the right of asylum when the extradition of the applicant is had authorized, concludes the Supreme one that in the case, existing an extradition procedure in which it was considered that there was no cruel treatment or degrading cannot later conclude in an asylum procedure that yes exists this risk.
In other words, when extradition has been declared originating, it cannot the Spanish public Administration transact a procedure to grant the right of asylum because although it is certain that some does not exist rule that establishes a prohibition it express both institutions on the matter are connected. Therefore, if the risk of which the interested one can be object of cruel or degrading treatments or to be object of tortures forces to deny extradition, when it has been acceded to her is because those fears have not been appraised, being you intone contradictory to decide the right of asylum because this right tolerates to declare that yes that risk of infringement of the rights of the affected one exists.
The Administration cannot of contradictory way consider that risk of infringement of rights with the object of extradition does not exist and soon of appreciating them for the purposes of the right of asylum, or vice versa. What it does not exclude that can be granted the asylum although has been acceded to extradition when the risk for the life or physical integrity derives from facts later and different from the analyzed ones in the extradition procedure.
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