Spain - High National Court Judgment, 27 December 2012, 5349/2012

Country of Decision:
Country of Applicant:
Date of Decision:
27-12-2012
Citation:
5349/2012
Court Name:
High National Court
National / Other Legislative Provisions:
Spain - Constitution - Art 13(4)
Spain - Asylum Law 12/2009 - Art 2
Spain - Asylum Law 12/2009 - Art 3
Spain - Asylum Law 12/2009 - Art 6
Spain - Asylum Law 12/2009 - Art 7
Spain - Asylum Law 12/2009 - Art 8
Spain - Asylum Law 12/2009 - Art 13
Spain - Asylum Law 12/2009 - Art 14
Spain - Ley 5/1984
reguladora del derecho de asilo y de la condición de refugiado (Act regulating the right to asylum and refugee status) - Art 1
reguladora del derecho de asilo y de la condición de refugiado (Act regulating the right to asylum and refugee status) - Art 2
reguladora del derecho de asilo y de la condición de refugiado (Act regulating the right to asylum and refugee status) - Art 3
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Headnote: 

It is an administrative appeal brought before the High National Court against the Deputy Secretary of the Interior’s decision to dismiss the request to review the ruling which denied the claimant’s right to asylum.

 

The application for asylum was based on grounds of persecution as a result of the Applicant’s sexual orientation as a Cameroonian national.The application was rejected by the Ministry of the Interior as it was deemed that the claimant’s narrative did not portray personal persecution.

 

The High National Court reviewed the appeal and ruled that the State had not provided sufficient grounds to reject the validity and effectiveness of the documentation submitted by the Applicant.Therefore, the appeal was upheld and the claimant’s refugee status was recognised.

Facts: 

The claimant, a Cameroonian national, requested asylum in Spain on November 18th, 2011, after having been forced to leave his country due to persecution on the grounds of his sexual orientation.

The claimant alleged that he had been persecuted by the police and legal authorities, which led to him being convicted and sentenced on November 17th, 2011, to eight years in prison for “openly practicing homosexuality”, a criminal act in Cameroon.In addition to the explicit persecution by the authorities, the claimant was kidnapped and after being threatened and assaulted, he paid a ransom and was freed.

 

Furthermore, he stated that that were three national search and arrest warrants for him so he decided to leave the country and seek international protection.

 

As evidence to support his asylum application, the claimant has provided various documents, amongst which are: two police summons from the Cameroonian police force, a search order, and an arrest order arising from the eight year prison sentence, all driven by his openly practiced homosexuality.

 

The reasoning behind the denial of asylum as well as the rejection of the request for a review was based on the Applicant’s failure to provide proof of personal and individual persecution when alleging actions without sufficient supporting evidence; additionally - in support of the finding of lack of evidence - the documents supplied "are easily manipulated photocopies that are therefore highly questionable".The reasoning hinged upon the State’s assessment of the lack of credibility of the evidence provided.This is the main issue debated in the appeal under discussion, brought before the High National Court.

Decision & Reasoning: 

In relation to the persecution grounds, the High National Court defered to the case law of the Supreme Court in this matter: Homosexuality is not a reason in itself for granting asylum without proof of persecution by - or tolerated by- the authorities of the country in question.On the other hand, it has been sufficiently proven by extensive country of origin information from various sources that in Cameroon, homosexual people suffer social, political, police and legal persecution.

 

In terms of the main issue, that is, the probative value of the evidence supplied by the claimant, the High National Court maintained that in the matter of asylum – in contrast to other procedures – prima facie or circumstantial evidence is acceptable.Above all, the Court highlighted the lack of reasoning in the administrative decisions to substantiate the rejection of the evidence supplied.The rulings stated that the documents are "easily manipulated photocopies” but the Court felt that there should be some justification for the instant rejection of this evidence. The Court observed that the State had "sufficient technical means" to check the veracity of the documents.

 

The High National Court concluded that having met all the requirements for the asylum application to considered, namely, a coherent, plausible and credible narrative, with an allegation of a well-known fact (the persecution of homosexuals in Cameroon), all accompanied by verifiable (at least circumstantially) documents, “a minimum of administrative activity" would have been required to reject the credibility of the arguments on which the persecution is based.This Court deemed the claims to be credible and supported by circumstantial evidence. The documents supplied were not questioned by the State, who failed to substantiate the refusal of the asylum request.

Outcome: 

The appeal was upheld and the claimant's refugee status was recognised.

Observations/Comments: 

It is particularly worth mentioning that in this appeal the High National Court explicitly emphasised the State's negative actions.From the point of view of the independence of the different courts (administrative and legal) as well as the guarantee of access to an effective remedy, this is a positive outcome.

Other sources cited: 

Country of origin reports – Cameroon – from UNHCR, Amnesty International, EU State Department, UN Human Rights Commission.

Case Law Cited: 

Spain - Supreme Court, 16 February 2009

Spain - Supreme Court, 2 January 2009

Spain - Supreme Court, 19 June 1989