Italy - Cagliari Court, 3 April 2013, No. RG 8192/2012
Keywords:
| 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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Actor of persecution or serious harm
Description
Per Art. 6 QD actors who subject an individual to acts of serious harm (as defined in Art. 15). Actors of persecution or serious harm include: (a) the State; (b) parties or organisations controlling the State or a substantial part of the territory of the State; (c) non-State actors, if it can be demonstrated that the actors mentioned in (a) and (b), including international organisations, are unable or unwilling to provide protection against persecution or serious harm as defined in Article 7. |
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Refugee Status
Description
The recognition by a Member State of a third-country national or stateless person as a refugee. |
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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. |
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Gender Based Persecution
Description
‘Gender-related persecution’ is used to encompass the range of different claims in which gender is a relevant consideration in the determination of refugee status. Gender refers to the relationship between women and men based on socially or culturally constructed and defined identities, status, roles and responsibilities that are assigned to one sex or another. Gender is not static or innate but acquires socially and culturally constructed meaning over time. Gender-related claims may be brought by either women or men, although due to particular types of persecution, they are more commonly brought by women. Gender-related claims have typically encompassed, although are by no means limited to, acts of sexual violence, family/domestic violence, coerced family planning, female genital mutilation, punishment for transgression of social mores, and discrimination against homosexuals." |
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Female genital mutilation
Description
Female genital mutilation (FGM) comprises all procedures that involve partial or total removal of the external female genitalia, or other injury to the female genital organs for non-medical reasons. |
Headnote:
Female genital mutilation constitutes an act of persecution relating to membership of a particular social group and, if it is established that such mutilation could specifically affect the Applicant, constitutes a reason for granting refugee status under Article 2 and subsequent articles of Legislative Decree No 251 of 19.11.2007, implementing Directive 2004/83/EC.
Facts:
The Applicant stated that she had been mistreated in her country of origin by the second wife of her father and had then gone to live with her aunt’s family. There she had been a victim of sexual violence within the family context, perpetrated by the aunt’s husband. Eventually she had left in order to avoid genital mutilation prior to an arranged marriage.
Having arrived in Italy she applied for international protection. The Territorial Commission rejected the request stating that the circumstances were not credible and also that the conditions for granting international protection had not been fulfilled. An appeal against this decision was submitted to the Court.
Decision & reasoning:
The Court held that, in the light of judgments issued by the European Court of Human Rights and the Court of Justice of the European Union, female genital mutilation should be considered as an act of gender-based persecution. In addition, as genital mutilation is widespread in Nigeria despite legal sanctions against the practice, it can be reasonably assumed that it would not be possible for the Applicant to receive any protection in her country of origin.
Outcome:
Appeal upheld and granting of refugee status.
Relevant International and European Legislation:
Cited National Legislation:
| Cited National Legislation |
| Italy - Legislative Decree No. 251/2007 |
| Italy - Constitution - Art 3 |
| Italy - Constitution - Art 2 |
Cited Cases:
| Cited Cases |
| ECtHR - Collins and Akaziebe v Sweden (Application no. 23944/05) |
| CJEU - C-571/10 Servet Kamberaj v Istituto per l’Edilizia sociale della Provincia autonoma di Bolzano (IPES) and Others |