España - Tribunal Supremo, 15 febrero 2008, Nº 6252/2004
Keywords:
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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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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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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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Internal armed conflict
Description
“A conflict in which government forces are fighting with armed insurgents, or armed groups are fighting amongst themselves.” |
Headnote:
The applicant lodged an appeal before the Supreme Court against the High National Court’s decision to reject her asylum application. She claimed to have experienced persecution in Nigeria for religious reasons: her parents were killed in a religious confrontation between Muslims and Catholics. However, she did not explain how this fact was linked to a subsequent persecution. The Court held that the applicant was not a victim of religious persecution in accordance with the 1951 Refugee Convention, but that she had fled from a general conflict and a situation of political instability.
Facts:
The applicant claimed that she suffered persecution in Nigeria on religious grounds. She stated that her parents had died three years ago as consequence of a confrontation between Muslims and Catholics. The applicant did not provide additional details on the causes of her parent’s death. After the incident, the applicant escaped to Benin, and then to Abidjan where someone gave her shelter
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In her account the actual circumstances of the alleged persecution or reasons explaining why her parents’ death constituted a well-founded fear of persecution, weren’t recorded.
UNHCR did not express their opposition to the application.
Decision & reasoning:
The Supreme Court reiterated the ruling of the High National Court. The Supreme Court held that the fact that the applicant’s parents died due to a religious confrontation did not amount to persecution based on religious grounds. According to the Supreme Court the applicant was not describing a situation of persecution, but a situation of instability and generalised conflict which could not be subsumed within persecution grounds. According to the Court, it appeared that the applicant left Nigeria fleeing the social and political environment, more than a particular persecution.
The Supreme Court set out a general principle regarding the concept of persecution that has been reiterated in subsequent decisions.
"A situation of generalised internal conflict taking place in a particular country, including the weakening of public powers and the emergence of uncontrolled groups with the ability to endanger basic human rights, does not amount to persecution in order to be granted with refugee status. To be granted this status requires a common undetermined threat but also this threat has to be addressed to the applicant individually or to due to the membership of a particular group."
In this case, the applicant did not establish that she experienced persecution for religious reasons linked to her individually, or as part of a particular group.
Outcome:
The appeal was not successful and the Supreme Court declared that the refugee status should not be granted.
Subsequent proceedings:
None