France - CNDA, 6 April 2009, Mr. K., n°616907
Keywords:
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Actors of protection
Description
"Actors such as: (a) the State; or (b) parties or organisations, including international organisations, controlling the State or a substantial part of the territory of the State; who take reasonable steps to prevent the persecution or suffering of serious harm, inter alia, by operating an effective legal system for the detection, prosecution and punishment of acts constituting persecution or serious harm, and the applicant has access to such protection." |
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Persecution Grounds/Reasons
Description
Per Article 1A ofthe1951 Refugee Convention, one element of the refugee definition is that the persecution feared is “for reasons of race, religion, nationality, membership of a particular social group or political opinion“. Member States must take a number of elements into account when assessing the reasons for persecution as per Article 10 of the Qualification Directive. |
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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. |
Headnote:
While Kosovan legislation prohibits any discrimination based on sexual orientation since 2004, persons who publicly acknowledge their homosexuality and demonstrate it in their external behavior regularly face de facto harassment and discrimination, without being able to avail themselves of the protection of the authorities. They constitute a particular social group.
Facts:
The applicant, from the town of Podujevo in Kosovo, discovered that he was homosexual when he was 16 years old. In 2004, the applicant’s father discovered the applicant’s homosexuality when he saw the applicant and his boyfriend together. The applicant’s father hit him violently. The applicant was attacked by his father on subsequent occasions and faced constant pressure. His father threatened to kill him and the authorities refused to help him.
Decision & reasoning:
The Court stated that while the Kosovan legislation, through the “Act against discrimination” adopted in 2004, prohibits any discrimination based on sexual orientation, persons who publicly acknowledge their homosexuality and demonstrate it in their external behavior regularly face de facto harassment and discrimination, without being able to avail themselves of the protection of the authorities, which often wrongly declare that homosexuality is illegal.
In the present case, the Court considered that the fears which the applicant may reasonably feel because of his behavior in case of return to his country of origin must be regarded as linked to his membership of a particular social group as defined in Article 1A(2) of the 1951 Refugee Convention.
Outcome:
Refugee status was granted to the applicant.
Observations/comments:
In another decision, the CNDA came to the same conclusion concerning another applicant from Kosovo and stated that “while homosexuality is not criminalized in Kosovo, homosexuals can be victims of serious discriminations and violence” and “the attitude of Kosovo authorities can be seen as encouraging homophobic acts”. “Homosexuals can therefore be considered as members of a group which members are, due to common characteristics which define them in the eyes of the Kosovo authorities and of the whole Kosovo society, likely to face persecution” (CNDA, 23 décembre 2009, M.J., n°09012138).
The CNDA also came to the same conclusion concerning another applicant from Albania and stated that “while homosexuality is not criminalized in Albania since a law dating from 1995, it is considered as an infringement by Albanian society” and that “homosexuals are victims of serious discrimination and ill-treatment, including by the authorities of their country” (CNDA, 10 décembre 2009, M.S., n°638&14/08018574).