Spain – Administrative Chamber of the Supreme Court, 4 October 2016, Appeal No 3910/2015
| Country of Decision: | Spain |
| Country of applicant: | Ivory Coast |
| Court name: | Administrative Chamber of the Spanish Supreme Court |
| Date of decision: | 04-10-2016 |
| Citation: | Administrative Chamber of the Spanish Supreme Court, Judgement 4331/2016, Appeal No 3910/2015 |
| Additional citation: | STS 4331/2016 |
Keywords:
| Keywords |
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Burden of proof
Description
"In the migration context, a non-national seeking entry into a foreign State must prove that he or she is entitled to enter and is not inadmissible under the laws of that State. In refugee status procedures, where an applicant must establish his or her case, i.e. show on the evidence that he or she has well-founded fear of persecution. Note: A broader definition may be found in the Oxford Dictionary of Law." |
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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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Persecution (acts of)
Description
"Human rights abuses or other serious harm, often, but not always, with a systematic or repetitive element. Per Article 9 of the Qualification Directive, acts of persecution for the purposes of refugee status must: (a) be acts sufficiently serious by their nature or repetition as to constitute a severe violation of basic human rights, in particular the rights from which derogation cannot be made under Article 15(2) of the ECHR; or (b) be an accumulation of various measures, including violations of human rights which is sufficiently severe as to affect an individual in a similar manner as mentioned in (a). This may, inter alia, take the form of: acts of physical or mental violence, including acts of sexual violence; legal, administrative, police and/or judicial measures which are in themselves discriminatory or which are implemented in a discriminatory manner; prosecution or punishment, which is disproportionate or discriminatory; denial of judicial redress resulting in a disproportionate or discriminatory punishment; prosecution or punishment for refusal to perform military service in a conflict, where performing military service would include crimes or acts falling under the exclusion clauses in Article 12(2). " |
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Safe country of origin
Description
"A country where, on the basis of the legal situation, the application of the law within a democratic system and the general political circumstances, it can be shown that there is generally and consistently no persecution as defined in Article 9 of Directive 2004/83/EC, no torture or inhuman or degrading treatment or punishment and no threat by reason of indiscriminate violence in situations of international or internal armed conflict. In making this assessment, account is taken, inter alia, of the extent to which protection is provided against persecution or mistreatment by: (a) the relevant laws and regulations of the country and the manner in which they are applied; (b) observance of the rights and freedoms laid down in the European Convention on Human Rights (ECHR) and/or the International Covenant for Civil and Political Rights and/or the Convention against Torture, in particular the rights from which derogation cannot be made under Article 15(2) of the said European Convention; (c) respect of the non-refoulement principle according to the Geneva Convention; (d) provision for a system of effective remedies against violations of these rights and freedoms.” |
Headnote:
The Spanish Supreme Court’s Administrative Chamber decides on the appeal of an asylum applicant, whose application has been rejected. The applicant states that upon return to his home country (Ivory Coast) he will suffer a risk of persecution.
However, both the National Court and the Supreme Court ruled that no risk of persecution exists in this case, because there is no enough evidence to conclude on that risk.
Facts:
The applicant, from Ivory Coast, fled his home country because there was a general situation of violence and he suffered an attack from an armed group, which he claims was because of his ethnicity. He submitted an application for international protection. In January 2014, the Undersecretariat of Internal Affairs denied his application, with the reasoning that it was safe for him to return to Ivory Coast.
The applicant appealed this decision before the National Court, which concurred with the Undersecretariat of Internal Affairs and rejected the appeal.
The applicant appealed this last judgement before the Supreme Court in 2016.
Decision & reasoning:
To begin with, the evolution of the circumstances in the country of origin has to be analysed from the moment the applicant submitted his application until the moment the Court delivers the decision.
For this analysis, the 2012 UNHCR report was taken into account. The reports stated that it was not safe to return people from Ivory Coast until 2011, because of the situation of the country. However, in the report of 2012, it does no longer include this recommendation, establishing that the situation has improved and it allows the return to the country.
The Court also states that during the legal procedure, the Ivorian authorities have provided the Court with documents. This exchange of documentation let the Court establish that there was no persecution.
The Supreme Court further argues, that there is not enough proof to confirm the existence of persecution on the basis of ethnicity or the risk of it. The facts narrated by the applicant reflect an isolated incident, not a result of a personal persecution. Moreover, the situation of general conflict in the country of origin does not require international protection to be granted.
The Supreme Court establishes, based on the UNHCR report and the lack of proof, that it is safe for the applicant to return to his country of origin.
The Supreme Court also denies subsidiary protection, because there are no grounds to believe that the return of the applicant to his country of origin poses a risk of exposure to serious harm.
Outcome:
Appeal not granted.
Observations/comments:
The Supreme Court states there is no risk of persecution for the applicant, because he only suffered one attack, seen as an isolated case. As article 9 of the Qualification Directive 2011/95/EU establishes, the act of persecution has to be sufficiently serious by its nature or repetition to constitute a severe violation of human rights.
The Court reasoned that there was insufficient proof that the act he suffered amounted to persecution because of his ethnic group, and since it was only once, does not reach the threshold required for an act of persecution.
In this case, the burden of proof is carried by the applicant, as can be seen in the reasoning of the Supreme Court, stating that there is not enough proof of persecution. The Court relies mainly on the UNHCR reports and links these with the fact that the authorities of the country of origin have provided documents to the case, to conclude that the said country it is a safe place to return to. The Court’s reliance on UNHCR sources is quite important in the domestic context.
This summary was written by Laura Pastor Rodriguez, LLM Student at Gent University.
Relevant International and European Legislation:
Cited National Legislation:
| Cited National Legislation |
| art. 4 |
| regulating the right of asylum and the subsidiary protection |
| art. 46.3 of Law 12/2009 |
Other sources:
Domestic Case Law cited
SAN 23 March 2015 (Appeal No 350/2013), SAN 20 April 2015 (Appeal No 418/2013), STS 10 October 2014 (Appeal No 1133/2014), STS 26 October 2012 (Appeal No 2609/2012), STS 28 December 2012 (Appeal No 2522/2012), SAN 29 October 2014 (Appeal No 161/2013), SAN 7 November 2014 (Appeal No 191/2013)