Belgium - Council for Alien Law Litigation, 9 July 2008, Nr. 13.874

(1) the facts were of a private nature and were unrelated to the 1951 Refugee Convention, and

 

(2) given the applicant’s reluctance in requesting the protection of the authorities, it could not be established that the authorities would not have given her adequate protection. The applicant filed an appeal against this decision.

 

Firstly it considered that there was no doubt that the domestic violence of which the applicant was a victim constituted persecution in the sense of Art 1(A), §2 of the 1951 Refugee Convention as qualified by Belgian law (Art 48/3, §2 Alien Act: “acts of physical or mental violence” and “acts of a gender specific nature”). The CALL held that such acts were a violation of “the right not to be subjected to torture or inhuman or degrading treatment,” guaranteed by Art 3 of the ECHR, and of which no derogation was allowed on the basis of Art 15.2 of the ECHR.”

 

When establishing the link between the fear of persecution and the five grounds listed in the 1951 Refugee Convention, the CALL considered the evolution of the definition of particular social group from its jurisprudence. Referring to the case law of the Permanent Refugee Appeals Commission (the competencies of which the CALL took over after the 2006 law reforms; see country overview for Belgium), the Canadian federal court and the UK House of Lords, the CALL held that a particular social group can also be defined on the basis of the existence of an innate or unchangeable characteristic, such as a person’s gender. The CALL considered that in certain societies, persons of the same gender, or certain categories of persons of the same gender, could be considered as forming a particular social group, for example a group of people that share one or more common characteristics that makes them different from the rest of society and that is perceived as such by the rest of the population or by the authorities.

 

In the case at hand, the CALL accepted that the applicant had grounds to fear persecution on the basis of her belonging to the social group of women.

 

Given the fact that the actor of persecution in the case at hand was a non-state agent, the CALL also considered the possibility of obtaining effective protection in the country of origin, namely Russia. On the basis of country reports from Amnesty International and other organisations regarding domestic violence in Russia, the CALL decided that the applicant could not reasonably expect effective or sufficient protection from the Russian authorities.