Spain – Administrative Chamber of the Supreme Court, 2 November 2016, Appeal No 1824/2016
| Country of Decision: | Spain |
| Country of applicant: | Ivory Coast |
| Court name: | Administrative Chamber of the Spanish Supreme Court |
| Date of decision: | 02-11-2016 |
| Citation: | Administrative Chamber of the Spanish Supreme Court, Judgement 2339/2016, Appeal No 1824/2016 |
| Additional citation: | STS 2339/2016, 2 November 2016 |
Keywords:
| Keywords |
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Burden of proof
Description
"In the migration context, a non-national seeking entry into a foreign State must prove that he or she is entitled to enter and is not inadmissible under the laws of that State. In refugee status procedures, where an applicant must establish his or her case, i.e. show on the evidence that he or she has well-founded fear of persecution. Note: A broader definition may be found in the Oxford Dictionary of Law." |
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Credibility assessment
Description
Assessment made in adjudicating an application for a visa, or other immigration status, in order to determine whether the information presented by the applicant is consistent and credible. |
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Persecution (acts of)
Description
"Human rights abuses or other serious harm, often, but not always, with a systematic or repetitive element. Per Article 9 of the Qualification Directive, acts of persecution for the purposes of refugee status must: (a) be acts sufficiently serious by their nature or repetition as to constitute a severe violation of basic human rights, in particular the rights from which derogation cannot be made under Article 15(2) of the ECHR; or (b) be an accumulation of various measures, including violations of human rights which is sufficiently severe as to affect an individual in a similar manner as mentioned in (a). This may, inter alia, take the form of: acts of physical or mental violence, including acts of sexual violence; legal, administrative, police and/or judicial measures which are in themselves discriminatory or which are implemented in a discriminatory manner; prosecution or punishment, which is disproportionate or discriminatory; denial of judicial redress resulting in a disproportionate or discriminatory punishment; prosecution or punishment for refusal to perform military service in a conflict, where performing military service would include crimes or acts falling under the exclusion clauses in Article 12(2). " |
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Safe country of origin
Description
"A country where, on the basis of the legal situation, the application of the law within a democratic system and the general political circumstances, it can be shown that there is generally and consistently no persecution as defined in Article 9 of Directive 2004/83/EC, no torture or inhuman or degrading treatment or punishment and no threat by reason of indiscriminate violence in situations of international or internal armed conflict. In making this assessment, account is taken, inter alia, of the extent to which protection is provided against persecution or mistreatment by: (a) the relevant laws and regulations of the country and the manner in which they are applied; (b) observance of the rights and freedoms laid down in the European Convention on Human Rights (ECHR) and/or the International Covenant for Civil and Political Rights and/or the Convention against Torture, in particular the rights from which derogation cannot be made under Article 15(2) of the said European Convention; (c) respect of the non-refoulement principle according to the Geneva Convention; (d) provision for a system of effective remedies against violations of these rights and freedoms.” |
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Return
Description
"In the context of the Return Directive (2008/115/EC), the process of going back - whether in voluntary compliance with an obligation to return, or enforced - to: - one's country of origin; or - a country of transit in accordance with EU or bilateral readmission agreements or other arrangements; or - another third country, to which the third-country national concerned voluntarily decides to return and in which he/she will be accepted. There are subcategories of return which can describe the way the return is implemented, e.g. voluntary, forced, assisted and spontaneous return; as well as sub-categories which describe who is participating in the return, e.g. repatriation (for refugees)." |
Headnote:
The Spanish Supreme Court’s Administrative Chamber decides on the appeal of the applicant, whose application for international protection has been rejected. The Court solves the case reasoning that the situation in the country of origin has improved from the moment the applicant lodged the application, and in addition, no sufficient proof of the said persecution was presented.
Facts:
The applicant, from Ivory Coast, fled his home country because of the general situation of violence. He submitted an application for international protection in Spain, but it was denied.
The applicant appealed this decision before the National Court, who stated that there was not enough proof to belief that the applicant’s return to the country of origin would entail a risk. In addition, the Court used the UNHCR report of the country of origin, that said the situation had improved since the application was lodged. It rejected the appeal, not granting international protection.
The applicant appealed this last judgement before the Supreme Court in 2016.
Decision & reasoning:
The applicant included three reasons to ask for the annulment of the National Court judgement and for a new judgement to be delivered.
First of all, the applicant stated there was an infringement of art. 3 in relation with art. 26.2 of Law 12/2009 (regulating the refugee status and the evaluation of applications, respectively) and in relation with art. 1A of the Refugee Convention. The applicant claimed that the National Court had asked for full proof of the alleged persecution. The Supreme Court answered that this full proof had not been asked, only a reasonable likelihood that the persecution was taking place. Art. 26.2 of Law 12/2009 establishes that in order for an application to be accepted, sufficient evidence of persecution have to be presented. However, the Court observes that mere statements are not sufficient proof to recognise the refugee status, and therefore has to dismiss this first argument. Moreover, it confirms the National Court reasoning, taking into account the UNHCR report, that proved the improvement of the situation in the country of origin.
Secondly, the applicant claims that there has been an infringement relating to the examination of his application. The Supreme Court, building on long-standing jurisprudence, stated that the examination of an application has to be done taking into account all circumstances and possible changes, since the moment it was lodged until the moment the decision is delivered. As art. 8 of Directive 2005/85 establishes, Member States have to guarantee that the competent authorities obtain precise and updated information, including UNHCR reports regarding the general situation of the country of origin. Since the 2012 UNHCR’s report, that was referred to, shows an improvement in the circumstances in the moment the judgement was delivered, the application was examined regarding this change.
Lastly, the applicant’s third reason concerns the infringement of art. 4 and 10 of Law 12/2009, about the subsidiary protection and the concept of serious harm respectively, when the application for subsidiary protection was denied. The Supreme Court argues that it is really important to assess the personal circumstances of the applicant, because a general situation of conflict does not equal to an automatic granting of international protection. Since the conditions in the country of origin have changed and there are no facts or proof that personal circumstances indicate risk of serious harm upon return, the subsidiary protection cannot be granted, neither the stay in Spain for humanitarian reasons. It establishes that the National Court already analysed all the evidence gathered, and there is not enough evidence to state that the applicant’s return to the country of origin is a risk.
Outcome:
Appeal not granted.
Observations/comments:
According to the Supreme Court, mere statements on the personal story of the applicant are not sufficient evidence. However, a question can be raised here: what counts as ‘enough evidence’? This specification cannot be find in the article and the judgement does not provide a clear threshold either. The lack of clarity on the threshold for the standard of proof can lead to different courts applying different levels.
The Supreme Court based the reasoning on the UNHCR report of 2012, and concluded that the mere statements of the applicant’s personal story are not enough evidence of the persecution. The absence of evidence of the persecution made the Court conclude an absence of risk. It can be questioned whether the Court has examined sufficiently in this case the real absence of risk for the applicant upon return to the country of origin.
This summary was written by Laura Pastor Rodriguez, LLM Student at Gent University.
Relevant International and European Legislation:
Cited National Legislation:
| Cited National Legislation |
| art. 4 |
| Art. 3 |
| regulating the right of asylum and the subsidiary protection |
| art. 10 and art. 26.2 of Law 12/2009 |
Cited Cases:
| Cited Cases |
| CJEU - C-175/08, C-176/08, C-178/08 and C-179/08, Aydin Salahadin Abdulla, Kamil Hasan, Ahmed Adem, Hamrin Mosa Rashi, Dier Jamal v Bundesrepublik Deutschland |
Other sources:
Domestic Case Law Cited
STS 19 June 1998, STS 2 March 2000, STS 21 May 1991, STS 30 March 1993, STS 23 June 1994, STS 17 April 2015 (Appeal No 3055/2014), STS 17 June 2013 (Appeal Np 4355/2012), STS 20 January 2014 (Appeal No 307/2011), STS 10 October 2014 (Appeal No 1133/2014), STS 31 October 2014 (Appeal No 407/2014), STS 23 February 2016 (Appeal No 3293/2015)
Other Reports
UNHCR report (‘Interim Eligibility Guidelines for Assessing the International Protection Needs of Asylum-Seekers from Côte d’Ivoire’) from 15 June 2012