Slovenia - Administrative Court of the Republic of Slovenia, 14 february 2012, I U 42/2012,

The Court was of the opinion that, without being familiar with the local customs in the state of origin, not knowing the name of the brother and the atmosphere in the family cannot constitute the basis for concluding that the Plaintiff did not show general credibility.

It was also wrong of the MI to conclude that the Plaintiff's fear lacked a subjective element, for he had shown that he feared the Taliban. By considering all relevant circumstances and analysing all available information on the country of origin, the Defendant should have established whether the fear was grounded. As the ZMZ (International Protection Act), the Geneva Convention and the Qualification Directive do not state that the violence needs to be aimed directly at the person applying for international protection, threats and violence against the family members of the Applicant can be considered as acts of persecution if the Applicant is connected to the facts which previously lead to the violence.

According to the Geneva Convention, the Plaintiff does not need to explicitly state the grounds forpersecution. The Plaintiff has to state all circumstances that he is aware of in relation to his persecution; however he does not need to establish the material and legal connection between the persecution and the grounds for persecution. The legal assessment of this connection has to be performed by the Defendant.

The Defendant did not protect the best interest of the child as directed by the ZMZ and the Convention on the Rights of the Child. The MI would have already had to start the process of finding the child's parents in the course of  the international protection procedure and not just once the procedure for removing the child from the country had begun. The question as to whether the child will be safely received - in the sense of basic living conditions - in the country of origin is important, as it is linked to subsidiary protection in relation to Article 3 of the ECHR.

In accordance with Articles 47(6) and 16(3) of the ZMZ (and Article 17 of the Procedures Directive 2005/85/EC), one has to provide legal representation for a minor applicant and take into account the Applicant’s statis as a minor in demonstrating and establishing the facts. The principle of protecting the best interest of the child also needs to be enforced when assessing the risk that the absolute rights of the child might be violated if he is returned to his country of origin and needs to be reflected in the Defendant’s burden of proof as well as in the rules and standards of evidence (in relation to subsidiary protection).  

The Defendant’s belief that it is solely the duty of the legal representative to take care of the child's best interest is wrong, as it is also the task of the deciding body to protect the best interest of the child.

A child in Afghanistan can be a member of a particular social group. In Afghanistan being a youth without any contact with the parents is an essential characteristic of one’s identity, thus these individuals should not be forced to denounce their identity, as it is impossible to denounce this identity in its entirety. Apart from this, it is also clear, without any shadow of a doubt, that the aforementioned group has a special identity in Afghanistan, for the Taliban perceive them as such and use them for their military and political purposes, while criminal groups use them for other illegal intentions such as the white slave trade, sexual violence, drug trade and other crime. The Plaintiff could thus be persecuted because he belongs to a vulnerable group of children with or without parents.