International Commission of Jurists
EU Court’s ruling on asylum claims based on sexual orientation

EU Court’s ruling on asylum claims based on sexual orientation

Dec 2, 2014 | News

Today, the Court of Justice of the European Union (CJEU) delivered its judgment in the joint cases of A, B and C v. Staatssecretaris van Veiligheid en Justitie.

It affirms the need for national authorities to undertake individualized credibility assessments in asylum cases involving claims of persecution based on sexual orientation.

The ruling concerned a request for a preliminary ruling from the Netherlands, through its Council of State, to the CJEU.

The cases arose from three applications for asylum in the Netherlands by three men claiming a well-founded fear of persecution in their countries of origin based on their alleged same-sex sexual orientation.

The Dutch authorities rejected each asylum claim on the basis that each applicant had failed to prove his same-sex sexual orientation.

The Council of State asked the CJEU what limits the EU Qualification Directive and the Charter of Fundamental Rights, and in particular article 3 (right to the integrity of the person) and article 7 (respect for private and family life), impose on the method of assessing the credibility of a declared sexual orientation, and whether these limits are different from those applying to the assessment of credibility in asylum claims based on other grounds.

Interpreting the Qualification Directive in light of articles 3 and 7 of the Charter, as well as article 1, i.e. human dignity, the Court held that EU law does impose certain requirements on refugee status determination authorities.

The ICJ welcomes the Court’s determination that the competent domestic authorities must ensure that any credibility assessment method must allow for an individualized consideration of each applicant’s claim, having regard to its specific features, and that it is the duty of the State to cooperate with the applicant in the context of the assessment of all the relevant elements of her or his claim.

The ICJ welcomes a number of other aspects of the ruling, including:

  • The emphasis on the Netherland’s need to comply with the Charter of Fundamental Rights;
  • The fact that the Court firmly came down against seemingly intrusive and lewd questioning of an applicant’s sexual practices and proclivities, which it held to be contrary to respect for private and family life; and,
  • The Court’s awareness of the particular challenges relating to the disclosure of one’s sexuality. The court noted that an applicant may be understandably reticent in revealing intimate aspects of his or her life and that therefore late disclosure of same-sex sexual orientation should not necessarily undermine the applicant’s credibility.

See also the ICJ’s commentary on the CJEU judgment in X, Y and Z v. Minister voor Immigratie en Asiel.

Tajikistan: ICJ calls for steps to ensure independence of the legal profession

Tajikistan: ICJ calls for steps to ensure independence of the legal profession

Nov 27, 2014 | News

Following a visit to the country from 15 to 19 November, the ICJ called on the government of Tajikistan to take meaningful steps to ensure that the institutional independence of the legal profession and the personal integrity of individual lawyers are secured.

The ICJ expressed concern at the continued detention of lawyer Shukhrat Kudratov, on criminal charges. It welcomed the release of another lawyer, Fakhriddin Zokirov, who had been on trial on charges that appeared to constitute an act of retaliation for his work as a defence lawyer. He was released on 3 November as a result of an amnesty.

“While the release of Fakhriddin Zokirov is a positive step, we are concerned that Shukhrat Kudratov remains in detention pending trial on similar criminal charges. We have received credible information that the charges against him are linked to his representation of a client, contrary to international standards on the independence of lawyers”, said Róisín Pillay, Director of the Europe and CIS programme at the ICJ.

The ICJ reiterated its concern at aspects of the reform of the legal profession presently under consideration under the draft law on Advokatura.

Following a mission to Tajikistan in 2013, the ICJ expressed concerns that the independence of the legal profession would be undermined by requirements in the draft law that all lawyers go through a new qualification process, administered by a body in which the Ministry of Justice would play a prominent role.

Amendments recently introduced to the draft law have not altered the inappropriate role which the Ministry of Justice would play in regulating the profession.

Under the draft law, the Deputy Minister of Justice would serve as an ex officio Chair of the Qualification Commission which determines who may be accredited as a lawyer.

This significant role by a member of the executive would jeopardize the independence of the profession.

The ICJ also remains concerned that the draft law would still require requalification of many lawyers, with exemptions only for those with at least 15 years of professional experience as defence lawyers.

Such provisions are contrary to international standards on the independence of the legal profession, including the UN Basic Principles on the Role of Lawyers.

The ICJ recalls Tajikistan’s earlier commitment during the UN Human Rights Committee’s session of 2013 that the Qualification Commission would be placed under the Ministry of Justice only for a short transitional period. A provision to this effect has not yet been introduced in the draft law.

Contact:

Róisín Pillay, Director, ICJ Europe Programme, roisin.pillay(a)icj.org

Temur Shakirov, Legal Adviser, ICJ Europe Programme, temur.shakirov(a)icj.org

Notes:

From 15 to 19 November, an ICJ legal expert, Dr Stefan Strobl, visited Tajikistan and held meetings with a number of international and local civil society organizations and lawyers to discuss recent progress on the reform of the legal profession and the wide ranging challenges it faces.

The visit followed an ICJ mission to Tajikistan in November 2013.

Tajikistan-Independence of legal profession-News-webstory-2014-RUS (full text in PDF)

ICJ and ILGA-Europe joint submissions in Milica Đorđević and others v. Serbia

ICJ and ILGA-Europe joint submissions in Milica Đorđević and others v. Serbia

Nov 18, 2014 | Advocacy, Cases, Legal submissions

On 17 November 2014, the ICJ and ILGA-Europe filed their joint written submissions with the European Court of Human Rights in the case of Milica Đorđević and others v. Serbia (Application Nos. 5591/10, 17802/12, 23138/13 and 25474/14).  

The case concerns the authorities’ decision in 2009 to relocate the applicants’ “Pride Parade” to promote the equality and visibility of lesbian, gay, bisexual and transgender people away from central Belgrade, Serbia, and the authorities’ repeated banning of Pride Parades in central Belgrade in 2011, 2012 and 2013.

The ICJ and the European Region of the International Lesbian, Gay, Bisexual, Trans and Intersex Association (ILGA-Europe)’s submissions to the Court focus on:

  • the essential role of the right to freedom of peaceful assembly in a democratic society, and the scope of discretion afforded to States in determining measures required to prevent disorder at an assembly where counter-demonstrators threaten violence against groups most at risk; and
  • the nature and scope of the State’s obligation in relation to the right to freedom of peaceful assembly under the European Convention on Human Rights and the International Covenant on Civil and Political Rights, focusing in particular on States’ duty to adopt legislative and administrative measures in order to fulfil their legal obligations.

 SERBIA-ECHR amicus Dordevic-Advocacy-Legal Submission-2014-ENG (full text in PDF)

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