Key facts of the case:
The plaintiff is a Cameroonian citizen who entered Germany in November 2011. He initiated legal proceedings in April 2012 to gain recognition of his right of asylum. After partially withdrawing the action, he was successful with his application to be recognized as a refugee in June 2012. The Sigmaringen Administrative Court obligated the defendant to recognize the plaintiff as a refugee by applying section 60 (1) of the German Residence Act (Aufenthaltsgesetz). The Court stated that the plaintiff had argued convincingly that he is homosexual and will face imprisonment or other punishment in Cameroon because of his homosexuality. The defendant appealed in July 2012 because the plaintiff had not convinced them of the fact that he will be punished for his homosexuality in Cameroon. The Higher Administrative Court of Baden-Württemberg dismissed the appeal. The Court was convinced that the plaintiff is homosexual and therefore belongs to a “social group” in terms of section 60 (1) of the German Residence Act (Aufenthaltsgesetz) that has the right to be recognized as a refugee.
Margin number 40: “The Senate does not consider a reference corresponding to Art. 267 AEUV necessary because it has no doubt concerning the interpretation of the EU Directive 2004/83/EG. Crucial for the classification of homosexuality and the feature of “sexual orientation” as a feature which forms the identity as defined in Art. 10 (1) letter d of the EU Directive 2004/83/EG is that the European Court of Human Rights subsumes questions of sexual self-determination and of the personal sex life under the term of “privacy” protected by Art. 8 (1) ECHR (compare ECHR, judgment of September 27th 1999 – 33985/96 u.a. – “Smith u. Grady” -, NJW 2000. 2089f.; Meyer-Ladewig, EMRK, 3. Aufl. 2011, Art. 8 margin number 19ff.). Also, these questions are subject to the range of protection of Article 7 of the Charter which has to be obeyed while interpreting and executing the EU Directive as stated in Art. 51 (1) sentence 1 of the Charter (compare Jarass, Charta der EU-Grundrechte, 2010, Art 7 Rn. 8). […]” margin number 45: “Of course, there are restrictions for the range of protection of the feature “sexual orientation”. This already results from the fact that according to Article 10 (1) letter d sentence 3 of the EU Directive 2004/83/EG the actions that are punishable by the law of the member states are not included. But this restriction only applies as far as the national regulations are in accordance with Article 8 ECHR and Article 7 of the Charter. The joint activity of adults in their private life is basically protected and must not be punished (compare ECHR, judgment of October 22nd 1981 “Dudgeon” – NJW 1984, 541). But according to Article 8 of the ECHR and Article 7 of the Charter the exercise of sexual practices in public – whether hetero- or homosexual (compare Article 14 ECHR and Article 21 (1) of the Charter – may furthermore be prohibited because of indecent behavior (compare section 183a German Criminal Code; compare Marx, l.c., margin number 30).” margin number 54: “[…]. Actions that are legally intended to restrict the right of privacy as guaranteed in Article 7 of the Charter and Article 8 of the ECHR without violating this right are excluded in the first place because they are covered by Article 52 (1) of the Charter. Moreover, actions that violate Art. 7 of the Charter and Art. 8 of the ECHR but are not so grave that they equal a violation of fundamental human rights, which are to be obeyed in any case according to Art. 15 (2) ECHR, might not be qualified as “persecution” according to Article 9 (1) of the EU Directive 2004/83/EG and Article 1 A GFK (compare European Court of Justice, judgment of September 5th 2012, l.c., margin number 60f.).” Further references are found in margin numbers 49, 110, 117.