Belgium - Council for Alien Law Litigation, 17 August 2017, n°190 672

Country of Decision:
Country of Applicant:
Date of Decision:
17-08-2017
Citation:
Belgian Council for Alien Law Litigation (2017), n° 190 672
Court Name:
Belgian Council for Alien Law Litigation
National / Other Legislative Provisions:
15 December 1980 Law (Loi du 15 décembre 1980 sur l’accès au territoire
le séjour
l’établissement et l’éloignement des étrangers)
Articles 51/4
48/3
48/4
48/7
62
39/2 §1
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Headnote: 

An asylum applicant who was a victim of previous persecution in their country of origin can be granted refugee status under article 1, C 5) of the Geneva Convention. This is because, due to the severity of the treatment applied, the applicant’s fear is exacerbated to such an extent that, even if the persecution has ceased to exist, a return to the country of origin would be unthinkable. 

Facts: 

The applicant is an Albanian national who was abducted by an armed man in 1997 who, after she had refused to follow him to Greece, burned her right arm which consequently had to be removed. The man also forced the applicant to live in his cousin’s abandoned house, where he regularly raped her. After the birth of their first child in 1998, the applicant was rejected and despised by her abuser’s family and her own father, who thought that she had voluntarily followed her rapist and had consequently shamed the family. The applicant gave birth to three other children in 2002, 2005 and 2007.

In August 2014, following the death of her abuser, the latter’s family expelled her from the village. The applicant’s sister then invited her and her children to live with her in another Albanian county. Due to ongoing instances of threats towards one of her sons, the applicant arrived in Belgium, where another sister of hers was residing, and applied for asylum there.The applicant claimed that her personal circumstances demonstrate her well-founded fear of persecution in Albania. She referred to the hostile relationships with her late companion’s family and the death threats received by her son in 2015.

The Commissioner-General for Refugees and Stateless Persons (CGRSP) rejected the applicant’s claim for refugee protection finding that the applicant had not sufficiently established a well-founded fear of persecution in case of her return to Albania. The fact that the applicant had remained in that abusive relationship for seventeen years and did not leave the country immediately after the threats towards her son affected her credibility. She also never attempted to contact the Albanian authorities. Finally, the CGRSP found that recent regulations on police forces, including domestic violence training, as well as the possibility to get help from the authorities, pointed to a lack of risk upon return.

Decision & Reasoning: 

The Council started by examining whether the treatment suffered by the applicant constituted persecution under the 1951 Convention on Refugees. Recalling the applicant’s personal circumstances and her psychological record added to the file, the Council concluded that she had sufficiently established the material truth of her persecution as well as the gravity of the psychological suffering these persecutions had caused her.

The Council then examined whether the applicant had provided sufficient proof of her well-rounded fear by reason of the circumstances invoked between 1997 and 2014 – and despite the death of the principal actor of persecution in 2014. The Council considered that the persecution suffered by the applicant was of such gravity that its consequences were likely to last for the rest of her life. It also noted that the aim of the international protection guaranteed under the Geneva Convention was to provide applicants with adequate protection against possible persecutions, and not to compensate for the harm suffered as a consequence of previous persecution. 

However, the Council recalled that, where the previous persecution was of such gravity that the applicant’s fear was exacerbated to the point where a return to their country of origin would prove unfeasible, then the applicant may be granted refugee status under article 1. C. 5) of the Geneva Convention 1951. This exacerbated fear should be assessed in light of the applicant’s personal experience, their psychological structure, and the extent of the physical and psychological consequences relevant in the case at hand.

In this case, the Coucil estimated that the applicant had sufficiently proved that her personal circumstances induced in her an exacerbated fear which justified the impossibility of her return to Albania. Consequently, the Council granted refugee status to the applicant, annulling the CGRSP’s decision.

Outcome: 

Appeal granted.

Observations/Comments: 

This summary was written by Sinéad Gough, LLM Student at Queen Mary University of London.

For a more recent presentation of the protection provided by Albanian authorities to victims of domestic violence, see (in french) :

 

Other sources cited: 

Case Law Cited :

Belgium :

CPRR 91-490/F161, 7 January 1993

CPRR 96-1850/F517, 8 September 1997

CPRR 05-06161/F2563 14 February 2007

CCE 29.223 29 June 2009

CCE 55.770 9 February 2011

Other Sources Cited :

Amnesty International, Albanie 2015/2016

Refworld, « Albanie : information sur la violence familiale, y compris les lois, la protection offerte par l’Etat et les services de soutien (2011-avril 2014) », 30 avril 2014

HCR, Guide des procédures et critères pour déterminer le statut de réfugié, Genève, 1979, p.51, §196