The Netherlands Council of State gives judgment on X., Y., Z. case concerning persecution based on sexual orientation

Sunday, February 2, 2014

The decision of the Council of State, of 18 December 2013, follows the CJEU’s response to the Council’s preliminary reference in Joined Cases C 199/12, C 200/12 and C 201/12, X, Y and Z, handed down on 7 November 2013.

Based on a translation provided by the Dutch Council for Refugees, the decision states, at para 8.1, that ‘when assessing whether there is a well-founded fear of persecution on grounds of sexual orientation the Secretary of State will have to take into consideration the applicant's statements on the way he will behave / give expression to his sexual orientation in his country of origin or why he will avoid certain behaviour. The Council of State, in this regard, refers to the Supreme Court of the United Kingdom decision of 7 July 2010 [2010] UKSC 31. To assess the credibility of the statements on future behaviour the Secretary of State will have to take into consideration the position of LGBT people in the country of origin and whether certain behaviour is accepted by society.  The way the applicant behaved before he left his country of origin and the way he has behaved in the Netherlands and whether there is some consistency in this regard can effect the credibility of the statements’. Here the Council of State refers to paragraph 24 of the German judgment Bundesverwaltungsgericht of 20 February 2013 (nr. BVerwG 10 C20.12 (ECLI:DE:BVerwG:2013:200213U10C20.12.0).

On criminalisation the Council of State holds that: ‘When certain behaviour or acts are criminalised the Secretary of State will have to perform an investigation into the following aspects: (1) whether in practice a penalty is imposed; (2) the criminal investigation that precedes a (possible) penalty; (3) what criminalisation means for the position LGBT have in society. Due regard has to be given to the question whether authorities provide protection against persecution by third parties. The Council of State considers that it is likely that such protection will not be available when there is criminalisation.

Read the judgment (Dutch only) of the Dutch Council of State.

The Weekly Legal Update and EDAL would like to thank Sadhia Rafi, the Dutch ELENA coordinator, for informing ECRE about this judgment.

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Credibility assessment
Non-state actors/agents of persecution
Persecution (acts of)
Sexual orientation