Slovenia - The Supreme Court of Republic of Slovenia, I Up 49/2016, 9 March 2016

Country of Decision:
Country of Applicant:
Date of Decision:
09-03-2016
Citation:
I Up 49/2016
Court Name:
The Supreme Court of the Republic of Slovenia
Relevant Legislative Provisions:
National / Other Legislative Provisions:
Slovenia - International protection Act (ZMZ) Article 2
Slovenia - International protection Act (ZMZ) Article 2(2)
Slovenia - International protection Act (ZMZ) Article 21
Slovenia - International protection Act (ZMZ) Article 21(3)
Slovenia - International protection Act (ZMZ) Article 24
Slovenia - International protection Act (ZMZ) Article 24(3)
Slovenia - International protection Act (ZMZ) Article 25
Slovenia - International protection Act (ZMZ) Article 25(2)
Slovenia - International protection Act (ZMZ) Article 26
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Headnote: 

An applicant from Kosovo claimed persecution due to his homosexuality. His application was rejected. The Administrative Court dismissed the action, but the Supreme court annulled the judgement and returned the case to the new procedure. An act of persecution does not depend on the applicant reporting persecution (in this case rape) to the police of their country of origin. 

Facts: 

An asylum seeker from Kosovo claimed persecution because of his homosexuality. The Asylum authority rejected his claim because the applicant did not report to the Kosovar police any of the described events (not even rape) and therefore he did not demonstrate that the national authorities are not able to provide him with adequate protection. They did not accept the applicant’s explanation that he did not report the events to the police because they would not do anything.

The Administrative court agreed with the Asylum authority and stated that the events put forward by the applicant cannot constitute persecution because they were not reported to the police in his country of origin. The alleged rape can only constitute persecution if the applicant would report it to the police and the latter could not adequately protect him. Because he did not report it to the police, the police could not have protected him. Since the applicant did not show past persecution, he cannot rely on the fact that the Asylum authority did not sufficiently examine the future persecution, since all the statements regarding homophobia and hostility of Kosovar society were too general and ill-substantiated . Indeed, according to the Court, there are a number of institutions and non-governmental organisations operating in Kosovo, which are able to provide assistance against persecution by non-state actors.

Decision & Reasoning: 

The Supreme Court disagreed with such an interpretation of persecution. The reason for granting international protection is the applicant's well-founded fear of persecution because of the grounds enumerated in the Geneva Convention alongside the lack of protection for the individual in the country or origin.  That the definition of acts of persecution does not depend on the ability of the country of origin to provide protection follows from Article 26 of the AIP. The latter provides the characteristics of acts of persecution. One of the examples of persecution listed in this Article is also sexual violence. In cases where such actions are caused by non-state actors, the latter are considered as subjects of persecution only if it can be shown that the State or political parties or organisations controlling the State or a substantial part of its territory are not able to or are unwilling to provide protection against persecution or serious harm.

It therefore means that it is possible to speak of an act of persecution within the meaning of Article 26 of the AIP regardless of whether the applicant reported the violence to the police or not. Even if it did not, the request for international protection can be rejected, but not because it is not an act of persecution, but because the applicant can be protected by his country of origin.

In view of the foregoing, the position of the Court that rape does not constitute an act of persecution, because the applicant has not reported it to the police is incorrect. Consequently, the finding that the applicant did not demonstrate past persecution and that therefore he cannot successfully invoke the argument that the Asylum authority did not examine future persecution is also incorrect. Moreover, since it does not result from either the decision or the judgement that the authority or the Administrative court did not believe that the applicant was a victim of rape, the grounds of the judgment on whether the applicant was already a victim of persecution are at odds.

What kind of protection in the country of origin should be established during the procedure depends on whether the applicant has already been subject to persecution.  According to the 10 alinea of Article 23(1) of IPA, the fact that an applicant has already been subject to persecution or serious harm, or to direct threats of such persecution or such harm, there is a serious indication of the applicant’s well-founded fear of persecution or real risk of suffering serious harm, unless there are good reasons to consider that such persecution or serious harm will not be repeated. 

Outcome: 

The Supreme court quashed the judgement of the Administrative court and ordered a new procedure.