Article 7 - Respect for private and family life
Article 1 - Human dignity
Key facts of the case:
Following the rejection of the applications for temporary residence permits in the Netherlands made by three third country nationals, requests for preliminary ruling were made, regarding the interpretation of Article 4 of Council Directive 2004/83/EC on Minimum standards for the qualification and status of third country nationals or stateless persons as refugees or as persons who otherwise need international protection and Articles 3 and 7 of the Charter of Fundamental Rights of the European Union.
The three applicants claimed to own a well founded fear of being persecuted in their countries of origin, on the ground of their homosexuality. The applications were rejected as their statements concerning their homosexuality were not deemed credible.
The questions referred for a preliminary ruling concerned the assessment of facts and circumstances as well as the methods of assessment and acceptance of certain types of evidence. The applicant should identify his sexual orientation, which is an aspect of his personal identity. In assessing the grounds brough by the applicant, the competent national authority has as much power as it is consistent with the respect for human dignity, enshrined in Article 1 of the Charter, and the respect for private and family life, guaranteed by Article 7 of the Charter. A difference has to be made between, on the one hand, the limitations that apply to the verification of statements and documentary or other evidence as regards the declared sexual orientation of an applicant for asylum and, on the other hand, those that apply to the verification of those elements as regards other grounds for persecution.
Outcome of the case:
The Court (Grand Chamber) ruled that the competent national authorities are precluded from assessing the statements of the applicant and the documentary and other evidence submitted in support of their application through questions based only on stereotyped notions concerning homosexuals; from carrying out detailed questioning as to the sexual practices of an applicant for asylum; from finding that the statements of the applicant for asylum lack credibility merely because the applicant did not rely on his declared sexual orientation on the first occasion he was given to set out the ground for persecution; and from accepting evidence such as the performance by the applicant for asylum concerned of homosexual acts, his submission to 'tests' with a view to establishing his homosexuality or, yet, the production by him of films of such acts.
53. However, the methods used by the competent authorities to assess the statements and documentary or other evidence submitted in support of those applications must be consistent with the provisions of Directive 2004/83 and 2005/85 and, as is clear from recitals 10 and 8 in the preambles to 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.
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64. In the second place, while the national authorities are entitled to carry out, where appropriate, interviews in order to determine the facts and circumstances as regards the declared sexual orientation of an applicant for asylum, questions concerning details of the sexual practices of that applicant are contrary to the fundamental rights guaranteed by the Charter and, in particular, to the right to respect for private and family life as affirmed in Article 7 thereof.
65. In relation, in the third place, to the option for the national authorities of allowing, as certain applicants in the main proceedings proposed, homosexual acts to be performed, the submission of the applicants to possible ‘tests’ in order to demonstrate their homosexuality or even the production by those applicants of evidence such as films of their intimate acts, it must be pointed out that, besides the fact that such evidence does not necessarily have probative value, such evidence would of its nature infringe human dignity, the respect of which is guaranteed by Article 1 of the Charter.
73. ... Article 4 of Directive 2004/83, read in the light of Article 7 of the Charter of Fundamental Rights of the European Union, must be interpreted as precluding, in the context of that assessment, the competent national authorities from carrying out detailed questioning as to the sexual practices of an applicant for asylum.
Article 4 of Directive 2004/83, read in the light of Article 1 of the Charter of Fundamental Rights of the European Union, must be interpreted as precluding, in the context of that assessment, the acceptance by those authorities of evidence such as the performance by the applicant for asylum concerned of homosexual acts, his submission to ‘tests’ with a view to establishing his homosexuality or, yet, the production by him of films of such acts.
