On 16 January 2024, the Court of Justice of the European Union (CJEU) delivered a judgment which places a key emphasis on the interpretation of Directive 2011/95/EU in relation to women victims of domestic abuse.
The judgment is based on a request for a preliminary ruling from the Administrative Court - Sofia City (ACSC) in a case concerning a beneficiary of FAR. The case was initiated following the refusal of the State Agency for Refugees (SAR) to grant international protection in Bulgaria to a woman who had been the victim of domestic abuse and had received threats of an honour killing in her country of origin. In the dispute whether gender-based violence against women constitutes a ground for international protection, the ACSC referred to the CJEU for an interpretation of Directive 2011/95/EU applicable in the field of Refugee Law.
In its judgment, the CJEU analysed the content of the concept of social group as a motive for persecution that may lead to the recognition of a refugee status. In its reasoning, the CJEU states that "the provisions of that directive, in particular Article 10(1)(d) thereof (defining the social group requirements - auth. note), must be interpreted consistently with the Istanbul Convention, even though some Member States, including the Republic of Bulgaria, have not ratified that convention"[1] and indicates that gender-based violence against women must be recognised as a form of persecution. The CJEU concludes that a person's female gender assigns them to a particular social group, but that there may be other circumstances that form a social group among some women. These are "for example, another innate characteristic, or a common background that cannot be changed, such as a particular family situation, or a characteristic or belief that is so fundamental to identity or conscience that those women should not be required to renounce it“[2], as well as the differential treatment towards women by the surrounding society, whereby they are to be “recognised as having their own identity in that society, in particular because of social, moral or legal norms in their country of origin“[3]. The CJEU clarifies that in the specific case, women who refuse to enter into a forced marriage, where such a practice could be considered a social norm in their society, or violate such a norm by ending that marriage, may be considered to belong to a social group with its own identity in their country of origin if such conduct stigmatises them or exposes them to the disapproval of the surrounding society, resulting in their social exclusion and acts of violence.
The CJEU's second main finding is that, where an applicant for international protection claims to fear persecution by non-State actors in their country of origin (in this case, their spouse and relatives making death threats), it is not necessary to establish a link between one of the reasons for persecution (specifically membership of a particular social group) and acts of persecution (e.g. physical, psychological violence), if such a link can be established between one of these reasons for persecution and the lack of protection against these acts by the actors of protection (generally the State).[4] In the present case, this would mean that in order to prove persecution of the female applicant for international protection by a member of her family, it would be necessary only to establish a link between her membership of a particular social group and the failure of her country of origin to take measures to ensure her safety and security.
The third important finding of the CJEU concerns a hypothesis in which the asylum-seeker does not qualify as a refugee, which leads to an examination of whether there are substantial grounds for believing that if returned to the country of origin that person would be exposed to a real risk of suffering serious harm. In this respect, the CJEU makes the important conclusion that „the concept of serious harm covers the real threat to the applicant of being killed or subjected to acts of violence inflicted by a member of his or her family or community due to the alleged transgression of cultural, religious or traditional norms, and that this concept is therefore capable of leading to the recognition of subsidiary protection status“[5]. In particular, the CJEU notes that "where a woman runs a real risk of being killed by a member of her family or community because of the alleged transgression of cultural, religious or traditional norms, such seriuos harm must be classified as „execution“ within the meaning of that provision," and if the violence against her is not likely to result in her death, such assault should be classified as „torture or inhuman or degrading treatment or punishment“.[6]
With these findings, the CJEU essentially recognises gender-based violence against women, in the form of domestic abuse and threat of honour killing, as a ground for international protection.
This judgment is of strategic importance for the application of Refugee Law throughout the European Union.
[1] Judgment of 16 January 2024 in case C‑621/21, para. 47.
[2] Ibid, para. 50.
[3] Ibid, para. 52.
[4] Ibid, para. 70.
[5] Ibid, para. 80.
[6] Ibid, para. 76-77.
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