Slovenia - The Supreme Court of Republic of Slovenia, I Up 49/2016, 9 March 2016
Keywords:
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Non-state actors/agents of persecution
Description
People or entities responsible for acts or threats of persecution, which are not under the control of the government, and which may give rise to refugee status if they are facilitated, encouraged, or tolerated by the government, or if the government is unable or unwilling to provide effective protection against them. |
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Previous persecution
Description
"The fact that an applicant has already been subject to persecution or serious harm or to direct threats of such persecution or such harm, is a serious indication of the applicant's well-founded fear of persecution or real risk of suffering serious harm, unless there are good reasons to consider that such persecution or serious harm will not be repeated.” “The concept of previous persecution also deals with the special situation where a person may have been subjected to very serious persecution in the past and will not therefore cease to be a refugee, even if fundamental changes have occurred in his country of origin. It is a general humanitarian principle and is frequently recognized that a person who--or whose family--has suffered under atrocious forms of persecution should not be expected to repatriate. Even though there may have been a change of regime in his country, this may not always produce a complete change in the attitude of the population, nor, in view of his past experiences, in the mind of the refugee." |
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Protection
Description
A concept that encompasses all activities aimed at obtaining full respect for the rights of the individual in accordance with the letter and spirit of human rights, refugee and international humanitarian law. According to Article 2(a) of the Qualification Directive, international protection meansrefugee and subsidiary protection status as defined in (d) and (f). According to Recital 19 of the Qualification Directive “Protection can be provided not only by the State but also by parties or organisations, including international organisations, meeting the conditions of this Directive, which control a region or a larger area within the territory of the State”. According to Annex II of the Asylum Procedures Directive, in the context of safe countries of origin, protection may be 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 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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Membership of a particular social group
Description
One of the grounds of persecution specified in the refugee definition per Article 1A ofthe1951 Refugee Convention. According to the Qualification Directive, membership of a particular social group means members who share an innate characteristic, or a common background that cannot be changed, or share a characteristic or belief that is so fundamental to identity or conscience that a person should not be forced to renounce it, and that group has a distinct identity in the relevant country, because it is perceived as being different by the surrounding society. 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 concept. |
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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:
An applicant from Kosovo claimed persecution due to his homosexuality. His application was rejected. The Administrative Court dismissed the action, but the Supreme court annulled the judgement and returned the case to the new procedure. An act of persecution does not depend on the applicant reporting persecution (in this case rape) to the police of their country of origin.
Facts:
An asylum seeker from Kosovo claimed persecution because of his homosexuality. The Asylum authority rejected his claim because the applicant did not report to the Kosovar police any of the described events (not even rape) and therefore he did not demonstrate that the national authorities are not able to provide him with adequate protection. They did not accept the applicant’s explanation that he did not report the events to the police because they would not do anything.
The Administrative court agreed with the Asylum authority and stated that the events put forward by the applicant cannot constitute persecution because they were not reported to the police in his country of origin. The alleged rape can only constitute persecution if the applicant would report it to the police and the latter could not adequately protect him. Because he did not report it to the police, the police could not have protected him. Since the applicant did not show past persecution, he cannot rely on the fact that the Asylum authority did not sufficiently examine the future persecution, since all the statements regarding homophobia and hostility of Kosovar society were too general and ill-substantiated . Indeed, according to the Court, there are a number of institutions and non-governmental organisations operating in Kosovo, which are able to provide assistance against persecution by non-state actors.
Decision & reasoning:
The Supreme Court disagreed with such an interpretation of persecution. The reason for granting international protection is the applicant's well-founded fear of persecution because of the grounds enumerated in the Geneva Convention alongside the lack of protection for the individual in the country or origin. That the definition of acts of persecution does not depend on the ability of the country of origin to provide protection follows from Article 26 of the AIP. The latter provides the characteristics of acts of persecution. One of the examples of persecution listed in this Article is also sexual violence. In cases where such actions are caused by non-state actors, the latter are considered as subjects of persecution only if it can be shown that the State or political parties or organisations controlling the State or a substantial part of its territory are not able to or are unwilling to provide protection against persecution or serious harm.
It therefore means that it is possible to speak of an act of persecution within the meaning of Article 26 of the AIP regardless of whether the applicant reported the violence to the police or not. Even if it did not, the request for international protection can be rejected, but not because it is not an act of persecution, but because the applicant can be protected by his country of origin.
In view of the foregoing, the position of the Court that rape does not constitute an act of persecution, because the applicant has not reported it to the police is incorrect. Consequently, the finding that the applicant did not demonstrate past persecution and that therefore he cannot successfully invoke the argument that the Asylum authority did not examine future persecution is also incorrect. Moreover, since it does not result from either the decision or the judgement that the authority or the Administrative court did not believe that the applicant was a victim of rape, the grounds of the judgment on whether the applicant was already a victim of persecution are at odds.
What kind of protection in the country of origin should be established during the procedure depends on whether the applicant has already been subject to persecution. According to the 10 alinea of Article 23(1) of IPA, the fact that an applicant has already been subject to persecution or serious harm, or to direct threats of such persecution or such harm, there is a serious indication of the applicant’s well-founded fear of persecution or real risk of suffering serious harm, unless there are good reasons to consider that such persecution or serious harm will not be repeated.
Outcome:
The Supreme court quashed the judgement of the Administrative court and ordered a new procedure.
Relevant International and European Legislation:
Cited National Legislation:
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 |