Article 1 - Human dignity
Article 52 - Scope and interpretation
Key facts of the case
Request for a preliminary ruling from the Szegedi Közigazgatási és Munkaügyi Bíróság. Reference for a preliminary ruling — Charter of Fundamental Rights of the European Union — Article 7 — Respect for private and family life — Directive 2011/95/EU — Standards for granting refugee status or subsidiary protection status — Fear of persecution on grounds of sexual orientation — Article 4 — Assessment of facts and circumstances — Recourse to an expert’s report — Psychological tests.
Outcome of the case
In the light of the foregoing, I propose that the Court answer the questions referred by the Szegedi Közigazgatási és Munkaügyi Bíróság (Administrative and Labour Court, Szeged, Hungary) as follows:
Article 4 of Directive 2011/95/EU of the European Parliament and of the Council of 13 December 2011 on standards for the qualification of third-country nationals or stateless persons as beneficiaries of international protection, for a uniform status for refugees or for persons eligible for subsidiary protection, and for the content of the protection granted, read in the light of Article 1 of the Charter of Fundamental Rights of the European Union, does not preclude the use by the authorities of a psychologist’s expert opinion, especially to evaluate the general credibility of an applicant for international protection, provided that: (i) the examination of the applicant takes place with the consent of the applicant and is carried out in a manner that respects the applicant’s dignity and private and family life; (ii) the opinion is based on methods, principles and notions that are sufficiently reliable and relevant in the circumstances of the case, and may produce sufficiently reliable results; and (iii) the expert’s findings are not binding for the national courts reviewing the decision on the application.
15) In those circumstances, having doubts as to the correct interpretation of EU law, the referring court decided to stay the proceedings and to refer the following questions to the Court for a preliminary ruling:
‘(1) In the light of Article 1 of the Charter of Fundamental Rights of the European Union [(“the Charter”)], must Article 4 of Directive 2004/83/EC be interpreted as not precluding a forensic psychologist’s expert opinion based on projective personality tests from being sought and evaluated, in relation to [Lesbian, Gay, Bisexual, Transsexual and Intersexed (“LGBTI”)] applicants for asylum, when, in order to formulate that opinion, no questions are asked about the sexual habits of the applicant for asylum and that applicant is not subject to a physical examination?
(2) If the expert opinion referred to in question 1 may not be used as proof, must Article 4 of Directive 2004/83 be interpreted, in the light of Article 1 of [the Charter], as meaning that when the asylum application is based on persecution on grounds of sexual orientation, neither the national administrative authorities nor the courts have any possibility of examining, by expert methods, the truthfulness of the claims of the applicant for asylum, irrespective of the particular characteristics of those methods?’
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18) By its two questions, that I will consider jointly, the referring court essentially asks the Court how the national authorities are to verify the credibility of the statements made by an asylum seeker who invokes, as a ground for granting asylum, a fear of being persecuted for reasons relating to his sexual orientation. In particular, the referring court asks whether Article 4 of Directive 2011/95, interpreted in the light of Article 1 of the Charter, precludes the use by those authorities of a psychologist’s expert opinion.
26) It is undisputed that no instrument of EU law lays down specific rules with regard to the methodologies that the national authorities are to apply in evaluating the information and evidence submitted by the applicants and, more particularly, in assessing the credibility of the applicants. Member States thus have a certain leeway in that regard. ( 10 ) Nevertheless, the methodologies used must be consistent with the provisions of Directives 2011/95 and 2013/32 and, as is clear from recitals 16 and 60 of those directives respectively, with the fundamental rights guaranteed by the Charter, such as the right to respect for human dignity, enshrined in Article 1 of the Charter, and the right to respect for private and family life guaranteed by Article 7 thereof. ( 11 )
52) Article 46 of Directive 2013/32 — especially when interpreted in the light of Article 47 of the Charter— thus requires national courts to be able to carry out an in-depth, independent and critical review of all relevant aspects of fact and law. ( 31 ) That necessarily includes, to my mind, the possibility of disregarding the findings of experts — which constitutes a piece of evidence to be evaluated with the other evidence — which a judge may find, for example, to be biased, unsubstantiated or based on controversial methods and theories.
56) In the light of the foregoing, I propose that the Court answer the questions referred by the Szegedi Közigazgatási és Munkaügyi Bíróság (Administrative and Labour Court, Szeged, Hungary) as follows:
