Spain: National Court. Chamber of Contentious-Administrative Proceedings, 26 December 2013, Appeal No. 327/2012
Keywords:
| Keywords |
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Crime against humanity
Description
"Any of the following acts when committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack: (a) Murder; (b) Extermination; (c) Enslavement; (d) Deportation or forcible transfer of population; (e) Imprisonment or other severe deprivation of physical liberty in violation of fundamental rules of international law; (f) Torture; (g) Rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization, or any other form of sexual violence of comparable gravity; (h) Persecution against any identifiable group or collectivity on political, racial, national, ethnic, cultural, religious, gender as defined in paragraph 3, or other grounds that are universally recognized as impermissible under international law, in connection with any act referred to in this paragraph or any crime within the jurisdiction of the Court; (i) Enforced disappearance of persons; (j) The crime of apartheid; (k) Other inhumane acts of a similar character intentionally causing great suffering, or serious injury to body or to mental or physical health." |
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Exclusion from protection
Description
Exclusion from being a refugee on any of the grounds set out in Article 12 of the Qualification Directive or exclusion from being eligible for subsidiary protection on any of the grounds set out in Article 17 of the Qualification Directive. |
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Individual assessment
Description
The carrying out of an assessment on an individual and personal basis. In relation to applications for international protection, per Article 4(3) of the Qualification Directive, this includes taking into account: (a) all relevant facts as they relate to the country of origin at the time of taking a decision; (b) the relevant statements and documentation presented by the applicant; “(c) the individual position and personal circumstances of the applicant, including factors such as background, gender and age, so as to assess whether, on the basis of the applicant's personal circumstances, the acts to which the applicant has been or could be exposed would amount to persecution or serious harm; (d) whether the applicant's activities since leaving the country of origin were engaged in for the sole or main purpose of creating the necessary conditions for applying for international protection, so as to assess whether these activities will expose the applicant to persecution or serious harm if returned to that country; (e) whether the applicant could reasonably be expected to avail himself of the protection of another country where he could assert citizenship.” |
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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. |
Headnote:
The case appeals a decision of the Ministry of Interior to deny asylum and subsidiary protection considering the alleged crimes against humanity committed by the appellant, national of Iran. He was a member of a declared criminal organization. The Court analyses his adherence to the organisation following a proportionality approach. It addresses the need to examine the existence of substantial proof of the commission of crimes against humanity when applying the exclusion clauses to deny international protection.
Facts:
The applicant, at the age of 14, joined the Basij, an organization that was created after the death of the Sha for the young population of the country to serve the Revolutionary Guard. It is known that they use intimidation and violence and hold constant pressure against the population. After his studies at the university of the capital, he adopted an active position as a member of the organization which helped him geta job in the Ministry of Culture and Islamic Guide. He argues that, although his status in the organisation changed, his functions were tied to the Ministry where he was working.
In October 2006, during a work trip, he abandoned Iran and established himself in Spain. On the 20th October 2010 he converted to the Bahai faith, considered by the majority of the Iranian population as the worst form of heresy. He claimed that this was a basis for a serious risk of persecution in his country of origin.
The application was rejected after the authorities considered that the assessment of the individual circumstances of the applicant satisfy art. 1.F.) of the Geneva Convention of 1951, and therefore he should be excluded from international protection. The applicant appealed against the rejection of his application.
Decision & reasoning:
The Court examined the possible application of the exclusion clause of article 8.2.a) of the Asylum Law 12/2009 referring to Article 1.F of the Geneva Convention 1951 and the commission of crimes against humanity. According to the jurisprudence of the Supreme Court, and in line with the Nuremberg Charter of 1945 and the International Criminal Tribunal for the former Yugoslavia in 1993, there has to be substantial proof that the applicant had committed crimes against humanity in order to deny asylum. In this case, the tribunal considers that his implication was not assessed individually and the only factor taken into account to prove the commission of crimes against humanity was the membership to the Basij organization. Following an interpretation in accordance with the principle of proportionality, the personal circumstances of the applicant should be assessed regarding the type of membership that he held to the organisation and the individual commission of crimes inside the group. Given the fact that he joined the group at a young age and that the Court is not able to provide enough evidence of commission of crimes, the exclusion of article 1.F. of the Convention should not be applied to the appellant.
Outcome:
Appeal granted
Relevant International and European Legislation:
Cited National Legislation:
Cited Cases:
| Cited Cases |
| Spain - Supreme Court, 30 June 2011, 1519/2010 |
Other sources:
UNHCR Report of 13th April 2012