Hungary – Administrative and Labour Court of Szeged, 8 August 2016, 10.K.27.565/2015/28.

Country of Decision:
Country of Applicant:
Date of Decision:
08-08-2016
Court Name:
Administrative and Labour Court of Szeged
National / Other Legislative Provisions:
Hungary - Law III of 1952 on Civil Procedure
Article III and XIV of the Fundamental Law (Constitution) s 155/A
Hungary - Law CXL of 2004 on Administrative Procedures s 58
Hungary - Law LXXX of 2007 on Asylum s 6
Hungary - Law LXXX of 2007 on Asylum s 7
Hungary - Law LXXX of 2007 on Asylum s 40
Hungary - Law LXXX of 2007 on Asylum s 41
Hungary - Law LXXX of 2007 on Asylum s 60
Hungary - Law LXXX of 2007 on Asylum s 61
Hungary - Law LXXX of 2007 on Asylum s 63
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Headnote: 

The Court suspended domestic proceedings and referred the case for preliminary ruling procedure to the Court of Justice of the European Union (CJEU). The Court asked the CJEU to clarify the substance of its ban on exposing applicants for international protection to ‘tests’ to substantiate their sexual orientation.

Facts: 

The Applicant is a homosexual national of Nigeria who fled his country of origin for fear of persecution based on his sexual orientation. The Office of Immigration and Nationality (OIN) ordered a psychologist to examine him, who used various test to ascertain his sexual orientation. The tests – various explorative and projective tests – found that he is heterosexual. The OIN therefore rejected his application for international protection given that he is not credible. The Applicant challenged the decision. His legal representative argued that the tests applied violated the Applicant’s basic human rights and were not fit to ascertain one’s sexual orientation. The Court ordered an expert’s opinion on whether or not the tests applied were capable of proving one’s sexual orientation. The response stated that the methods and tests used were capable of proving one’s sexual orientation.

The Applicant’s legal representative argues that testing the Applicant was against the legal requirements set forth by the case law of the Court of Justice of the European Union (CJEU). 

Decision & Reasoning: 

The questions were registered under case C- 473/16 by the CJEU. The Court submitted the following questions for preliminary ruling:

‘1.

In the light of Article 1 of the Charter of Fundamental Rights of the European Union, must Article 4 of Directive 2004/83/EC be interpreted as not precluding a forensic psychologist’s expert opinion based on projective personality tests from being sought and evaluated, in relation to LGBTI applicants for asylum, when in order to formulate that opinion no questions are asked about the applicant for asylum’s sexual habits and that applicant is not subject to a physical examination?

 

2.

If the expert opinion referred to in question 1 may not be used as proof, must Article 4 of Directive 2004/83 be interpreted, in the light of Article 1 of the Charter of Fundamental Rights of the European Union, as meaning that when the asylum application is based on persecution on grounds of sexual orientation, neither the national administrative authorities nor the courts have any possibility of examining, by expert methods, the truthfulness of the applicant for asylum’s claims, irrespective of the particular characteristics of those methods?’

The Court states that the case officers of the OIN do not possess the necessary qualifications to carry out an interview in a way which could substantiate the sexual orientation of the Applicant. Psychological experts are contacted only rarely, on exceptional cases. These cases are not defined in the decision. The Court states that when there is a contradiction between the statements of the Applicant and the psychological expert, the latter is taken into consideration.

The domestic courts do not follow a unified procedure on ordering an expert’s investigation into ascertaining an applicant’s sexual orientation. Since there is no possibility of appeal against the decision of Courts made in asylum cases, cases such as this cannot be brought to the Kúria (Supreme Court) which has the power to issue a compulsory decision for domestic courts to follow.

The Administrate and Labour Court of Szeged is of the opinion that the test applied by the psychologists contacted by the OIN do not violate Article 1 of the Charter of Fundamental Rights, since it is not invasive and does not require any physical interaction. The Court further argues that although the World Health Organisation removed homosexuality from the list of diseases, it does not mean that there could be no tests which are able to ascertain one’s sexual orientation in a way which does not violate a person’s human dignity.

The Court goes on to note the following:

‘The Court is of the opinion that the CJEU’s use of quotation marks when describing the ‘tests’ the Applicants were subjected to in the ABC case cannot be interpreted without examining its context, without taking into account the other relevant rulings of the case and the specialities of the given case. Based on the facts of the case in the reasoning of the judgements it can be deducted that the CJEU held that only tests relating to the physical examination of homosexuality are in breach of Article 4 of the Charter of Fundamental Rights.’

‘If there is a test which does not examine one’s sexual habits and sphere of intimacy directly, the asylum authority and the Court may use it legally to substantiate whether an application for international protection is well founded. Therefore the asylum authority and the Court do not have to base their decisions solely on the statements of the applicants. Having obtained an expert’s opinion which follows the above-mentioned criteria, those genuinely belonging to the LGBTI community will have a much higher chance of receiving international protection and would not be subject to the risk which lies in assessing their credibility by the case officers.

The Court is of the opinion therefore that banning the use of all tests may have adverse consequences for LGBTI asylum seekers, regardless of the contents of their individual cases.’ 

 

Outcome: 

Procedure suspended, preliminary ruling procedure initiated.