Spain: Supreme Court. Chamber for Contentious-Administrative Proceedings, 18th July 2016, M, Appeal No. 3847/2015

Country of Decision:
Country of Applicant:
Date of Decision:
18-07-2016
Court Name:
Tribunal Supremo. Sala de lo Contencioso
National / Other Legislative Provisions:
Spain - Article 21 of Act 12/2009
dated 30th October
on the Right to Asylum and Subsidiary Protection
Spain - Articles 9.3
24.1 and 120.3 of the Spanish Constitution
Spain - Articles 217
326.1 334 and 348 of the Spanish Code for Civil Procedure
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Headnote: 

The applicant requested international protection in Spain on 3rd November 2014, having been assaulted in his country of origin because of his sexual orientation. His partner died as a result of the assault. On the 26th October 2015, the Trial Chamber denied his request, stating that the allegations put forward by the applicant were “improbable or insufficient.”

On 18th July 2016, the applicant appealed this decision on two different grounds of appeal. First, on the grounds of an error when applying the relevant procedures for granting and withdrawing international protection, mistaking the phase of admission for the phase of concession. And second, on the grounds that the Chamber’s interpretation of the evidence provided was restrictive.

The Chamber granted the appeal against the decision made on 26th October 2015 and this decision was ruled null and void.

Facts: 

The applicant files a request for international protection at the border post in the Adolfo Suárez Madrid-Barajas airport, claiming that he had been violently beaten in his country of origin when it was discovered that he was homosexual. His boyfriend died as a result of this attack.

A report by the United Nations High Commissioner for Refugees (UNHCR) states that the allegations made by the applicant cannot be ruled improbable and therefore the case should be given leave to proceed. However, the Chamber determined the case to be inadmissible-denied.

The appellant states that the Chamber should have assessed the case with a view to granting/ denying leave to proceed, where personal accounts that meet the minimum requirements for coherence are sufficient for granting leave to proceed.

Finally, the applicant’s legal representative points out the power that this Court has to incorporate the facts and considerations previously omitted and to carry out a new assessment, invoking the information that has been provided about the country of origin.  

Decision & Reasoning: 

Another case, similar to this one, is mentioned- the Spanish Supreme Court Ruling, Third Chamber, section 3a. S12-2-2014, appeal no. 864/2013, in which a citizen of Cameroon, alleging to be homosexual was granted refugee status but this Chamber stated that this case is different because “it lacks any evidence to back the applicant’s account.

The applicant’s legal representative lodged an appeal against said ruling on the grounds of a breach of Article 21 of Act 12/2009, dated 30th October, on the Right to Asylum and Subsidiary Protection, in relation to Articles 9.3, 24.1 and 120.3 of the Spanish Constitution as well as Articles 217, 326.1 334 and 348 of the Spanish Code for Civil Procedure, which relate to the assessment of evidence.

The ruling passed by this Chamber of the Spanish Tribunal Court on 12th February 2014 (Appeal no. 864/2013) and the CJEU ruling, dated 7th November 2013 are relevant in that in them, the effective criminal punishment for homosexuals in Cameroon is recognised as being, in itself, an “act of persecution”, and when granting/ denying leave to proceed, no circumstantial evidence is required, as cited in Article 21 of Act 12/2009.      

The application in question was lodged at the border post thus, as the Court has previously indicated, the possibilities to reject a claim as inadmissible (in conformity with Article 21.2 of Law 12/2009) must be interpreted in a restrictive way. 

Outcome: 

Appeal granted.

Observations/Comments: 

This case summary was written by Harry Fathers, GDL student at BPP University. 

Case Law Cited: 

Spain - Supreme Court Third Chamber, section 3a. S12-2-2014, appeal no. 864/2013