On the 16th of January the Court of Justice of the European Union (CJEU) in a request for a preliminary ruling, ruled that women can claim asylum in EU countries on the basis of gender based violence in their country of origin. The case concerned a woman from Turkey WS, who was ethnically Kurdish, a Sunni Muslim and divorced. She arrived legally in Bulgaria in June 2018. Thereafter, she joined a family member in Berlin (Germany), where she lodged an application for international protection but was taken back by the Bulgarian authorities for the purpose of examining her application for international protection. WS stated that she had been forcibly married at the age of sixteen and had three daughters. Her husband allegedly beat her during their married life, but her biological family, who were aware of the situation, gave her no assistance. WS fled the marital home in September 2016, entered into a religious marriage in 2017 and had a son from that marriage in May 2018. After leaving Türkiye, she officially divorced her first husband in September 2018, despite his objections. She stated that, for those reasons, she fears that his family would kill her if she were to return to Türkiye..
Before the DAB, WS produced the decision, ,of the Turkish civil court which granted her divorce, together with the complaint which she had lodged against her husband, her biological family and her former husband’s family in January 2017 with the Public Prosecutor’s Office in Torbali (Türkiye), the minutes of which, drawn up on 9 January 2017, refer to the threatening telephone messages which her husband had sent her. She also produced a decision of a Turkish court of 30 June 2017 placing her in a house for women who are victims of violence, in which she claimed not to feel safe. Her initial application for International Protection was refused.
A couple of months later a new application was made by WS based on new evidence. She claimed a well-founded fear or persecution by non-state actors on account of her membership to a particular social group, namely women. who are victims of domestic violence and women who are potential victims of ‘honour killings’. She asserted that the Turkish State was not able to defend her against those non-State actors and argued that her return to Türkiye would expose her to an ‘honour killing’ or a forced marriage and, therefore, to an infringement of Articles 2 and 3 ECHR. Who are often victims of domestic violence and potential victims of honour killings. The referring court stated at the outset that, while WS’s subsequent application for international protection was rejected as inadmissible, an interpretation of the substantive preconditions for granting international protection was nevertheless necessary to enable it to determine whether WS has submitted new evidence or facts justifying the grant of such protection.
The CJEU stated while the European Union is not a party to CEDAW, all the Member States have ratified it. It is i thus one of the relevant treaties referred to in Article 78(1) TFEU, in accordance with which t Directive 2011/95, in particular Article 10(1)(d) thereof, must be interpreted. Secondly the Istanbul Convention, in so far as it relates to asylum and non-refoulement, is also one of the relevant treaties referred to in Article 78(1) TFEU. The provisions of that directive, in particular Article 10(1)(d) thereof, must be interpreted consistently with the Istanbul Convention, even though some Member States, including the Republic of Bulgaria, have not ratified that convention.
The CJEU found that Article 10(1)(d) of Directive 2011/95 must be interpreted as meaning that, depending on the circumstances in the country of origin, women in that country, as a whole, and more restricted groups of women who share an additional common characteristic may be regarded as belonging to ‘a particular social group’, as a ‘reason for persecution’ capable of leading to the recognition of refugee status.
For non-State actors to be classified as ‘actors of persecution or serious harm’, it must be shown that the actors of protection referred to in Article 7 of that directive, which include the State, are unable or unwilling to provide protection against those acts.