Slovakia - S. v Ministry of Interior of the Slovak Republic, 23 February 2010, 1Sža/7/2010
Keywords:
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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:
The Supreme Court of the Slovak Republic held that only such threats to life or liberty as are tolerated, encouraged or accompanied by official authority can be regarded as persecution within the meaning of Section 8 of the Asylum Act, while problems with private individuals cannot be a ground for granting asylum, as long as the political system in the country of origin affords citizens the possibility of defending their rights before state authorities.
A group can be considered to be a particular social group when the members of the group share innate characteristics or a common background which cannot be changed, or when they share a characteristic or belief that is so fundamental to their identity or conscience that a given individual should not be compelled to renounce it, and the group is seen to be different by the surrounding society. Depending on the circumstances in the country of origin, a particularsocial group may be based on a common characteristic of sexual orientation, but such orientation may not be understood to include acts that are considered punishable under a specific regulation.
Facts:
The Applicant requested international protection on the ground of property disputes. The Applicant himself concedes that property disputes do not constitute a ground for granting asylum under the law of the Slovak Republic and the Convention on Status of Refugees, but pointed out that his grounds may be categorised under membership of a social group. Persons with land disputes share the common characteristic of a hopeless situation in which they are unable to help themselves and the state is unwilling and unable to help them.
The Migration Office did not grant asylum to the Applicant nor did it provide him with subsidiary protection. The Regional Court in Košice upheld the decision of the Migration Office. The Applicant therefore appealed to the Supreme Court of the Slovak Republic.
Decision & reasoning:
The Supreme Court of the Slovak Republic upheld the decision of the Regional Court in Košice. Even if the claims of the Applicant regarding fears for his life in relation to property disputes with his sister’s in-laws were genuine, the Applicant’s grounds of appeal were not well-founded, as he failed to prove that the state authorities refused to provide assistance to him after he approached them. The Applicant approached the police, but they did nothing. He did not, however, request that higher authorities investigate this inaction. He expressed the fear that the police would not provide assistance even had he done so, as the family of his sister’s in-laws had connections in the governing party, which might influence the outcome of an investigation. The Supreme Court, however, regarded this objection as contrived, since, according to the Applicant’s statement, the police had released him in connection with allegations in another procedure (a criminal case allegedly initiated by his in-laws) after three days of investigations. According to the Supreme Court, the fact that the political system in the Applicant’s country of origin affords individuals the possibility of defending their rights before state authorities was not refuted in the asylum procedure, and the Applicant failed to prove that the public authorities in the country of origin as a whole refused to provide him with protection in the property disputes with his relatives.
Outcome:
The appeal was rejected
The Supreme Court of the Slovak Republic upheld the decision of the Regional Court in Košice.
Observations/comments:
Bench composed of President of the Bench JUDr. Igor Belko and of the members Ing. JUDr. Miroslav Gavalec and JUDr. Elena Berthotyová PhD.