Belgium – Council for Alien Law Litigation, 9 June 2011, Nr. 62.867
Country of Decision:
Country of Applicant:
Date of Decision:
09-06-2011
Citation:
Nr. 62.867
Court Name:
Council for Alien Law Litigation
Keywords:
Relevant Legislative Provisions:
Council of Europe Instruments > EN - Convention for the Protection of Human Rights and Fundamental Freedoms > Article 4
Council of Europe Instruments > EN - Convention for the Protection of Human Rights and Fundamental Freedoms > Article 15
European Union Law > EN - Qualification Directive, Directive 2004/83/EC of 29 April 2004 > Art 10
European Union Law > EN - Qualification Directive, Directive 2004/83/EC of 29 April 2004 > Art 10 > Art 10.1 (d)
Council of Europe Instruments > EN - Convention for the Protection of Human Rights and Fundamental Freedoms > Article 15
European Union Law > EN - Qualification Directive, Directive 2004/83/EC of 29 April 2004 > Art 10
European Union Law > EN - Qualification Directive, Directive 2004/83/EC of 29 April 2004 > Art 10 > Art 10.1 (d)
National / Other Legislative Provisions:
UN Convention on Slavery 1926
UN Convention on Slavery 1926 - Art 1
UN Convention on Slavery 1926 - Art 1
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Headnote:
This case concerned the assessment of the risk of being subjected to slavery on return. The CALL held that slavery is sufficiently grave by its nature to constitute persecution. The Court further added that the prohibition of slavery is an absolute and non-derogable right and that slaves can be considered as a particular social group.
Facts:
The applicant, from Niger, filed an asylum application on the basis of being a “slave” for a Mr D who had control over her and mistreated her (examples include deciding on whom she would marry on three occasions and a forced abortion). The Office of the Commissioner General for Refugees and Stateless Persons (CGRS) rejected the application for the following three reasons:
(1) The applicant’s statements regarding her status of slave were as inconsistent as they were improbable, casting a serious doubt on the credibility of the events she stated. The CGRS reproached the applicant, for example, for not knowing her master’s full name or of other persons that lived in the same compound.
(2) There were possibilities of finding protection through Niger’s authorities (not only via anti-slavery organisations that are officially recognised, but also through the active intervention of Niger’s authorities in that fight). The CGRS underscored that Niger’s legislation contained provisions prohibiting slavery, that the applicant appeared not to have used the remedies provided for in her country, and that the applicant had not turned to the national NGO Timidria that fights against slavery and all forms of discrimination in Niger.
(3) The applicant did not demonstrate why an internal flight within her own country would be impossible. The CGRS believed that the fear that the applicant claimed to have, was exclusively related to her status of a slave and that it was restricted to a limited geographical region and generated by only one person, i.e. her master.
The applicant lodged an appeal against this decision.
Decision & Reasoning:
In its decision the CALL analysed the case in three steps:
(1) According to the CALL the first question to be solved was whether the applicant’s status of slave and the facts that resulted from that were established. First of all the CALL defined “slavery” by referring to Art 1 of the Slavery Convention, signed in Geneva 1926, and a study by two NGOs, Anti-Slavery International and Timidria, an organisation from Niger. The CALL then underscored that slavery is considered as a serious violation of human dignity and that all international human rights instruments formally prohibit it. The CALL observed in particular that “Art 4.1 of the ECHR, in combination with Art 15.2, turns the prohibition of slavery into an absolute and non-derogable right and sufficiently serious by its nature to amount to persecution within the meaning of Art 48/3, §2, 1st paragraph, (a) of the Belgian Aliens Law”. The CALL then considered that, as opposed to what the CGRS had decided, the applicant’s statements were credible. The deeds that the applicant had to endure fulfilled the definition of slavery and the treatment she was subject to could be seen as physical and psychological violence within the meaning of Art 48/3, §2, 2nd paragraph, (A), of the Belgian Aliens Law.
(2) Secondly, the CALL considered whether or not the applicant’s fear was based on a convention ground. The CALL found that “persons that are considered as slaves constitute a particular social group given that this status passes from generation to generation and constitutes a separate social caste in Niger’s society.”
(3) Thirdly, the CALL examined the possibility of effective protection from the authorities in Niger. The CALL repeated that NGOs could not be considered as actors of protection unless they controlled the State or a large part of its territory, which was not the case here. The question was therefore whether the applicant could demonstrate that the State of Niger was unable or unwilling to provide the applicant protection. With the help of various reports and documents (a study undertaken by Anti-Slavery International and the local NGO Timidria, a report from the Embassy of the USA, the ECOWAS Court decision of 27 October 2008 in the case “i”), the applicant managed to demonstrate that, in her particular case, the judicial system of Niger had failed to prosecute and punish the acts that constituted persecution and of which she was a victim. She therefore had had no access to effective protection within the meaning of Art 48/5, §2, 2nd paragraph of the Belgian Aliens Law.”
The CALL concluded that the applicant had a fear of persecution within the meaning of Art 1(A)(2) of the 1951 Geneva Convention.
Outcome:
Refugee status was granted to the applicant.
