Belgium - Council for Alien Law Litigation, 11 March2008, No. 8512
Keywords:
| Keywords |
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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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Well-founded fear
Description
One of the central elements of the refugee definition under Article 1A ofthe1951 Refugee Convention is a “well-founded fear of persecution”: "Since fear is subjective, the definition involves a subjective element in the person applying for recognition as a refugee. Determination of refugee status will therefore primarily require an evaluation of the applicant's statements rather than a judgement on the situation prevailing in his country of origin. To the element of fear--a state of mind and a subjective condition--is added the qualification ‘well-founded’. This implies that it is not only the frame of mind of the person concerned that determines his refugee status, but that this frame of mind must be supported by an objective situation. The term ‘well-founded fear’ therefore contains a subjective and an objective element, and in determining whether well-founded fear exists, both elements must be taken into consideration." |
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Genocide
Description
"Any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such: (a) Killing members of the group; (b) Causing serious bodily or mental harm to members of the group; (c) Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part; (d) Imposing measures intended to prevent births within the group; (e) Forcibly transferring children of the group to another group." |
Headnote:
Extremely serious previous persecution was sufficient to establish a well-founded fear of persecution even when it appeared unlikely to recur.
Facts:
The Applicant, a Rwandan of Tutsi ethnic origin, whose family had been murdered during the 1994 genocide, feared reprisals due to her refusal to testify before a Gacaca tribunal.
The Office of the Commissioner-General for Refugees and Stateless Persons (CGRS) refused to recognise her refugee status. It was unconvinced by the Applicant’s account and found her summons by a Gacaca tribunal to be lacking in credibility.
Decision & reasoning:
The judge began his reasoning by emphasising that the reality of the persecution suffered by the Applicant during the genocide was not in any doubt.
This previous persecution would probably not recur, even if the Applicant returned to her country of origin.
However, ‘well-founded fear’ included a subjective element which had to be assessed taking into account the Applicant’s psychological vulnerability.
The Applicant had suffered extremely serious persecution. Such persecution constituted a ‘compelling reason’ preventing the termination of refugee status within the meaning of Article 1C(5) of the Refugee Convention.
By analogy, such a ‘compelling reason’ was also sufficient to provide an objective basis forthe purely subjective fear of persecution. The Applicant’s refugee status was recognised.
Outcome:
Revision of the CGRS’s decision.
Observations/comments:
This decision illustrates the CALL’s position that an ‘increased subjective fear’ caused by extremely serious persecution is sufficient to establish a well-founded fear of persecution even when the objective risk has disappeared.
Relevant International and European Legislation:
Cited National Legislation:
| Cited National Legislation |
| Belgium - Vreemdelingenwet/loi sur les étrangers 15/12/1980 (Aliens Act) - Art 48/3 |
| Belgium - Vreemdelingenwet/loi sur les étrangers 15/12/1980 (Aliens Act) - Artikle 48/4 |