Italy - Trieste Court of First Instance, 8 September 2009, RG 1012/2009
Keywords:
| Keywords |
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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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Sexual orientation
Description
"Sexual orientation refers to: ‘each person’s capacity for profound emotional, affectional and sexual attraction to, and intimate relations with, individuals of a different gender or the same gender or more than one gender’." According to Article 10(1)(d) of the Qualification Directive: “depending on the circumstances in the country of origin, a particular social group might include a group based on a common characteristic of sexual orientation. Sexual orientation cannot be understood to include acts considered to be criminal in accordance with national law of the Member States: Gender related aspects might be considered, without by themselves alone creating a presumption for the applicability of this Article” |
Headnote:
Intimidation, loss of employment, humiliation, personal injury inflicted for reasons of sexual orientation and national legislation penalising homosexuals qualify as acts of persecution.
Facts:
The applicant, a citizen of Benin, submitted an asylum application to the Gorizia Territorial Commission for the awarding of international protection and was granted subsidiary protection.
The applicant then appealed this decision arguing that he had to leave his own country because of a homosexual relationship that had resulted in discrimination of every kind. The applicant added that, with regard to the same issue, his partner had been granted refugee status by the Milan Territorial Commission for the awarding of international protection.
Decision & reasoning:
The Court ruled that the different decisions by the Commissions in Milan and Gorizia were inconsistent.
In addition, the Court considered the acts to which the appellant had been subjected because of his sexual orientation (intimidation, loss of employment, humiliation and personal injury) to be ‘acts of persecution’ as defined in Article 7 a), b) and f) of the Legislative Decree of 19 November 2007, No 251.
The acts to which the appellant had been subjected were classified as serious violations of the individual’s right to choose their own sexual orientation, a fundamental human right.
In the present case, the Court also considered it to be pertinent that under Benin’s legislation ‘practising’ homosexuals were liable to imprisonment.
Outcome:
Appeal upheld – Granting of refugee status
Relevant International and European Legislation:
Cited National Legislation:
| Cited National Legislation |
| Italy - Legislative Decree No. 251/2007 - Art 7(a) |
| Italy - Legislative Decree No. 251/2007 - Art 7(b) |
| Italy - Legislative Decree No. 251/2007 - Art 7(f) |