Greece - Special Appeal Committee, 22 June 2012, A.G. v. the General Secretary of the former Ministry of Public Order, Application No. 95/56266
Keywords:
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Actor of persecution or serious harm
Description
Per Art. 6 QD actors who subject an individual to acts of serious harm (as defined in Art. 15). Actors of persecution or serious harm include: (a) the State; (b) parties or organisations controlling the State or a substantial part of the territory of the State; (c) non-State actors, if it can be demonstrated that the actors mentioned in (a) and (b), including international organisations, are unable or unwilling to provide protection against persecution or serious harm as defined in Article 7. |
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Benefit of doubt
Description
The advantage derived from doubt about guilt, a possible error, or the weight of evidence. “When statements are not susceptible of proof, even with independent research, if the applicant's account appears credible, he should, unless there are good reasons to the contrary, be given the benefit of the doubt. The requirement of evidence should thus not be too strictly applied in view of the difficulty of proof inherent in the special situation in which an applicant for refugee status finds himself. Allowance for such possible lack of evidence does not, however, mean that unsupported statements must necessarily be accepted as true if they are inconsistent with the general account put forward by the applicant." |
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Country of origin information
Description
"Information used by the Member States authorities to analyse the socio-political situation in countries of origin of applicants for international protection (and, where necessary, in countries through which they have transited) in the assessment, carried out on an individual basis, of an application for international protection.” It includes all relevant facts as they relate to the country of origin at the time of taking a decision on the application, obtained from various sources, including the laws and regulations of the country of origin and the manner in which they are applied, regulations of the country of origin, plus general public sources, such as reports from (inter)national organisations, governmental and non-governmental organisations, media, bi-lateral contacts in countries of origin, embassy reports, etc. This information is also used inter alia for taking decisions on other migration issues, e.g. on return, as well as by researchers. One of the stated aims of the European Asylum Support Office (EASO) is to progressively bring all activities related to practical cooperation on asylum under its roof, to include the collection of Country of Origin Information and a common approach to its use. |
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Credibility assessment
Description
Assessment made in adjudicating an application for a visa, or other immigration status, in order to determine whether the information presented by the applicant is consistent and credible. |
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Inhuman or degrading treatment or punishment
Description
A form of serious harm for the purposes of the granting of subsidiary protection. The Trial Chamber of the International Criminal Tribunal for the Former Yugoslavia in Celibici defined cruel or inhuman treatment as ‘an intentional act or omission, that is an act which, judged objectively, is deliberate and not accidental, that causes serious mental or physical suffering or injury or constitutes a serious attack on human dignity.’ “Ill-treatment means all forms of cruel, inhuman or degrading treatment or punishment, including corporal punishment, which deprives the individual of its physical and mental integrity." |
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Internal protection
Description
Where in a part of the country of origin there is no well-founded fear of being persecuted or no real risk of suffering serious harm and the applicant can reasonably be expected to stay in that part of the country. |
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Serious harm
Description
In order to be eligible for subsidiary protection, a third country national or stateless person must demonstrate that if returned to his or her country of origin, or in the case of a stateless person, to his or her country of former habitual residence, s/he would face a real risk of serious harm as defined in QD Art. 15 and that s/he is unable, or owing to such risk, unwilling to avail her/himself of the protection of that country. Per Art.15:"(a) death penalty or execution; or (b) torture or inhuman or degrading treatment or punishment of an applicant in the country of origin; or (c) serious and individual threat to a civilian's life or person by reason of indiscriminate violence in situations of international or internal armed conflict." “Risks to which a population of a country or a section of the population is generally exposed do normally not create in themselves an individual threat which would qualify as serious harm.” |
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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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Religion
Description
One of the grounds of persecution specified in the refugee definition under Article 1A ofthe1951 Refugee Convention. According to the Qualification Directive, the concept of religion includes in particular the holding of theistic, non-theistic and atheistic beliefs, the participation in, or abstention from, formal worship in private or in public, either alone or in community with others, other religious acts or expressions of view, or forms of personal or communal conduct based on or mandated by any religious belief. |
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Real risk
Description
In order to be eligible for subsidiary protection, a third country national or stateless person must demonstrate that if returned to his or her country of origin, or in the case of a stateless person, to his or her country of former habitual residence, s/he would face a real risk of serious harm as defined in QD Art. 15 and that s/he is unable, or owing to such risk, unwilling to avail her/himself of the protection of that country. 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. |
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Death penalty / Execution
Description
Capital punishment; judicially pronounced sentence of death as a legally sanctioned punishment for criminal activity. Considered to be a form of serious harm for the purposes of the granting of subsidiary protection. |
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Discrimination
Description
Any distinction, exclusion, restriction or preference which is based on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status, and which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise by all persons, on an equal footing, of all rights and freedoms. |
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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:
The Applicant was a homosexual male from Iran who had renounced Islam and was studying the catechism of the Roman Catholic doctrine. It was held that the Applicant had no well-founded (objective) fear of persecution on the grounds of changing his religious beliefs.
Regarding the risks associated with his sexual orientation, the fear that the Applicant expressed was deemed to be well-founded, and it was held that not externalising his sexual orientation to avoid danger would, in and of itself, constitute serious harm to his right to respect for his private life and his right to not be discriminated against. Therefore, his refugee status was recognised and he was granted the international protection in the form of refugee status.
Facts:
The Applicant was an Iranian citizen. He was a homosexual who, in his country, used to frequent a park in Tehran where other homosexuals used to go and he had sometimes been harassed by the police force. He did not reveal his sexual orientation within family circles or his social environment because of the adverse social consequences faced by homosexuals in Iran. In June 2006, he was arrested in the said park by the police and they beat him, resulting in deafness in his left ear and a scar and he continued to suffer from post-traumatic stress to the present day. Three days after his arrest, he escaped, with assistance, from the court where he had been taken and immediately afterwards he left the country in fear for his life. He entered Greece in 2006, and was in a relationship with a Greek citizen. He was learning the catechism of the Roman Catholic faith, but he was not sure if he would get baptised as a Christian. On 25.9.2006, he applied for asylum in Greece. The Applicant's application, which was examined in the normal manner, was rejected by the General Secretary of the former Ministry of Public Order's decision no. 95/56266 on 3.11.2006. The Applicant submitted an appeal against that decision on 5.4.2007. That appeal was examined on 3.9.2012 by the 3rd Special Appeal Committee and the decision now under discussion was issued, accepting the merits of the appeal and unanimously recognising the Applicant's refugee status.
Decision & reasoning:
In Iran, erotic and sexual contact between individuals of the same gender is illegal, and the punishment for intercourse between two men is death. The Iranian Guardian Council had approved the final text of a revised Penal Code which had not yet been transposed into law. Under both the old and the new Codes, in contravention of international law, individuals found guilty and sentenced for “crimes against God” cannot be pardoned or have their sentence (which includes the death penalty) reduced.
With regard to carrying out the death penalty in cases of homosexuality, the Committee found that it was extremely difficult to gather information about cases of the death penalty connected to homosexuals. However, according to many sources, even in 2011 those who were accused in Iran of homosexual acts continued to face harassment and persecution. Regardless of whether or not the death penalty was carried out for the crime of sodomy, the exceptionally disproportionate nature of the relevant provisions of the Iranian penal code unquestionably constituted a real threat and was sufficient evidence to establish that carrying out the death penalty in Iran for the crime of sodomy is above the threshold of a mere possibility.
Furthermore, non-externalisation of the Applicant's sexual orientation in order to avoid the above would, in and of itself, constitute serious harm to his right to respect for his private life and his right to not be discriminated against.
The Committee held that the Applicant had no well-founded fear of persecution because of changing his religious beliefs because his links to Christianity were extremely tenuous and also becausethere was no evidence which showed an innate psychological embrace (animus) of Christianity which would put him at risk from the authorities should he return to his country.
Outcome:
The decision accepted the merits of the appeal and unanimously recognised the Applicant's refugee status.
Observations/comments:
1) It was held that the proven post-traumatic stress could explain insignificant inconsistencies in the Applicant's pleadings.
2) The Committee held that – even though some points of one part of the Applicant's story seemed implausible – since his narrative was very detailed and the story was generally consistent, the Applicant should be given the “benefit of doubt”.
3) It held that regardless of whether or not the death penalty would actually be carried out, the exceptionally disproportionate nature of the relevant provisions of the Iranian penal code unquestionably constituted a real threat and was sufficient evidence to establish that carrying out the death penalty in Iran for the crime of sodomy is above the threshold of a mere possibility.
4) It held that the non-externalisation of the Applicant's sexual orientation in order to avoid persecution would, in and of itself, constitute serious harm.
5) It is worth emphasising that the Applicant, at the time of being examined, was in the process of being indoctrinated into another faith.
Committee composed of:
A.P., Ministry for the Interior official, vice-President;
S.P., UNHCR representative;
A.M.P., a lawyer selected from the relevant list compiled by the National Commission for Human Rights
Relevant International and European Legislation:
Cited National Legislation:
Other sources:
1. http://www.unhcr.org/refworld/docid/4d0b0efb2.html
2. http://www.unhcr.org/refworld/pdfid/4d384ae32.pdf.
3. http://www.unhcr.orR/refworld/docid/50475a5a2.html
4. http://www.unhcr.org/refworld/docid/4e26ead814.html
5. http://files.amnestv.org/airl2/air 2012 full en.pdf
6. http://www.independent.co.uk/news/world/middle-east/iran-executes-three-men-for-sodomy-2350671.html
7. http://www.unhcr.org/refworld/docid/4eb922ac2.html
8. http://www.unhcr.org/refworld/docid/47da75002.html.
9. http://www.rferl.org/content/article/1076544.html.
10. Human Rights, Watch, "We Are a Buried Generation," Discrimination and Violence against Sexual Minorities in Iran,