Spain - Supreme Court, 19 February 2010, 5051/2006
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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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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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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Relevant Facts
Description
An assessment of an application for international protection must take into account all relevant facts, including those relating to: the country of origin at the time of taking a decision on the application, including laws and regulations of the country of origin and the manner in which they are applied; relevant statements and documentation presented by the applicant; the individual position and personal circumstances of the applicant; and other matters set out in Article 4 of the Qualification Directive |
Headnote:
The case concerned an appeal submitted before the Supreme Court against the decision of the High National Court to refuse refugee status on the grounds that it was not established that the persecution alleged against the applicants was individually and personally targeted. The Supreme Court found that the High National Court erred in requiring a higher standard of proof than what was needed. The High National Court had required the applicant to demonstrate ‘conclusive evidence’ (“full evidence”) of persecution, however, a lower standard of evidence was required by the law.
Facts:
The applicant, his wife and children submitted an asylum application alleging a well founded fear of persecution in Colombia on the grounds of political opinion. The applicant argued that he was at risk because of his professional position in a university, and the fact of having reported a robbery committed by security guards working in the university. Moreover, in the Del Valle University, where he was working, he was wrongly linked to a Colombian paramilitary group. He received death threats against him and his family from the Sixth Front of the Revolutionary Armed Forces of Colombia (FARC) which acts in his particular region.
Decision & reasoning:
The High National Court considered, and the Attorney General reiterated, in order to establish persecution according asylum law it is not sufficient to establish that a situation of general and indiscriminate violence exists, It has to be proven that this violence has been directly and individually targeted at the asylum seeker personally. Also, the applicant has to prove that he did not receive adequate and sufficient protection from the state authorities. The High National Court also stated that the applicant could avail of an internal protection alternative.
The Supreme Court deemed that the following reasoning of the High National Court for refusing refugee status was incorrect: “to obtain international protection according to asylum law it is necessary to prove not only an objective and generalised persecution, but the persecution has to be targeted particularly and personally at the applicant of international protection and that has not been proven”. The High National Court erred in that it required a higher standard of proof to establish persecution (full evidence), while the law required just enough evidence to establish persecution.
Outcome:
The appeal was successful; the Supreme Court declared that the applicant’s right to asylum should to be recognised.
Observations/comments:
The relevance of this decision lies in the positive interpretation of the standard of proof and the level of evidence when individual persecution claims are considered. The Court can’t require a higher standard of proof than what is legally required.
Relevant International and European Legislation:
Other sources:
Amnesty International Reports.
Law (26 March 1984) on the Right of Asylum and Refugee Status (Asylum Act), Art 3, Art 8 and Art 17.