In a groundbreaking decision, the European Court of Justice (ECJ) ruled in Case C-621/21 affirming that women collectively constitute a particular “social group” under EU Directive 2011/95, submitted to structural gender based violence, accorfing to the Council of Europe Convention on preventing and combating violence against women and domestic violence (hereinafter “the Istanbul Convention”).

This landmark decision, delivered on 16 January 2024, expands eligibility for refugee status to women facing gender-based violence, including physical, mental, sexual, and domestic abuse in their home countries.

The case that prompted this landmark decision involved a Turkish woman seeking international protection in Bulgaria. Alleging forced marriage, abuse, and threats from her family, she feared for her life if she were to return to Turkey.

The ECJ’s ruling clarified that gender-based violence qualifies as a form of persecution endured by women, as outlined in the Istanbul Convention. Recognizing women as constituting a “particular social group” under Directive 2011/95, the court affirmed their entitlement to protective measures afforded by EU law for individuals residing in a third country. Consequently, women facing the risk of “physical or mental violence, including sexual or domestic violence” in their home country due to their gender have the right to be acknowledged either as refugees or, at a minimum, as beneficiaries of subsidiary protection.

Importantly, the ECJ emphasized that its interpretation aligns with the Istanbul Convention, notwithstanding the non-ratification of the convention by certain Member States, including the Republic of Bulgaria. The provisions of EU Directive 2011/95, particularly Article 10(1)(d), were consistently interpreted in harmony with this international treaty.

The ECJ’s decision establishes a precedent for analogous cases, creating a legal framework to address gender-based violence as a valid ground for refugee protection. Furthermore, this ruling is of profound significance as it highlights how the EU’s endorsement of the Istanbul Convention on October 1, 2023, compels occasionally hesitant Member States to reinforce their commitment to safeguarding women against all forms of violence and align with European standards.
Legal Implications

The case raises critical questions about the recognition of gender-based violence as a legitimate ground for refugee protection under international and EU law. The ECJ’s decision has far-reaching implications for the ongoing legal discourse surrounding gender-related claims for refugee status.

 

The judgment addressed, in particular, three key issues:

1. Refugee Status for Gender-Based Violence:
The ECJ tackled the conditions under which a third-country national, at risk of being a victim of honor crimes, forced marriage, and domestic violence upon returning home, could be deemed to have a well-founded fear of persecution based on membership in a ‘particular social group.’ The court ruled that such individuals can be granted refugee status under Article 10(1)(d) of Directive 2011/95.

2. Causal Link in Violence by Non-State Actors:
The Court clarified the conditions for the competent national authority to establish a causal link between persecution reasons (membership in a particular social group) and the absence of protection in the country of origin, especially when violence is committed by non-State actors (Article 9(3) of the directive).

3. Subsidiary Protection for Serious Harm:
In the context of subsidiary protection, the ECJ examined conditions under which acts of violence, such as honor crimes and forced marriages, could be classified as ‘serious harm’ under Article 15 of the directive. This included determining if such acts constituted a serious threat to the person’s life or amounted to inhuman or degrading treatment.

 

Conclusion and Future Perspective

This landmark ruling not only sets a precedent for the protection of women facing gender-based violence but also underscores the importance of aligning legal frameworks with international conventions.

In the realm of EU external relations, the case clarified the legal obligations arising from international agreements concluded by the EU and its Member States. The Istanbul Convention, even without unanimous ratification, is deemed binding on the EU for matters related to asylum and non-refoulement.

This groundbreaking ruling not only sets a precedent for the protection of women but also reflects a commitment to human rights offering hope for those seeking refuge from persecution due to gender-based violence.

Note: A reference for a preliminary ruling allows Member States’ courts and tribunals to seek clarification from the ECJ on the interpretation of EU law. The ECJ’s decision is binding on the national court, influencing similar cases across EU Member States.

 

Reference Documents

1. European Court of Justice, Judgment Cā€‘621/21 of January 16, 2024.

2. European Union, Directive 2011/95/EU of the European Parliament and of the Council of December 13, 2011, laying down rules on the recognition of third-country nationals or stateless persons as beneficiaries of international protection, a uniform status for refugees or for persons eligible for subsidiary protection, and the content of the protection granted.

3. Istanbul Convention ā€“ Council of Europe Convention on preventing and combating violence against women and domestic violence.

 

Barbara Helfferich is thanked for bringing this to attention, and Valentina Maglietta for the analysis of this significant judgment from the European Court of Justice.

 

Valentina Maglietta

 

 

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