Article 2 - Right to life
Article 4 - Prohibition of torture and inhuman or degrading treatment or punishment
Article 5 - Slavery / Forced Labour
Article 7 - Respect for private and family life
Article 21 - Non-discrimination
Article 49 - Principles of legality and proportionality of criminal offences and penalties
Key facts of the case:
Requests for a preliminary ruling from the Raad van State (Netherlands).
Directive 2004/83/EC — Minimum standards relating to the conditions for granting refugee status or subsidiary protection status — Article 10(1)(d) — Membership of a particular social group — Sexual orientation — Reason for persecution — Article 9(1) — Concept of ‘persecution’ — Well-founded fear of being persecuted on account of membership of a particular social group — Acts sufficiently serious to justify such a fear — Legislation criminalising homosexual acts — Article 4 — Individual assessment of the facts and circumstances.
Outcome of the case:
8) The rights which cannot be subject to any derogation under Article 15(2) of the ECHR are enshrined in Articles 2, 4, 5(1) and 49(1) and (2) of the Charter of Fundamental Rights of the European Union (‘the Charter’).
40) The Directive must, for that reason, be interpreted in the light of its general scheme and purpose, and in a manner consistent with the Geneva Convention and the other relevant treaties referred to in Article 78(1) TFEU. As is apparent from recital 10 in the preamble thereto, the directive must also be interpreted in a manner consistent with the rights recognised by the Charter (Case C‑364/11 Abed El Karem El Kott and Others  ECR, paragraph 48 and the case-law cited).
53) It is clear from those provisions that, for a violation of fundamental rights to constitute persecution within the meaning of Article 1(A) of the Geneva Convention, it must be sufficiently serious. Therefore, not all violations of fundamental rights suffered by a homosexual asylum seeker will necessarily reach that level of seriousness.
54) In that connection, it must be stated at the outset that the fundamental rights specifically linked to the sexual orientation concerned in each of the cases in the main proceedings, such as the right to respect for private and family life, which is protected by Article 8 of the ECHR, to which Article 7 of the Charter corresponds, read together, where necessary, with Article 14 ECHR, on which Article 21(1) of the Charter is based, is not among the fundamental human rights from which no derogation is possible.
55) In those circumstances, the mere existence of legislation criminalising homosexual acts cannot be regarded as an act affecting the applicant in a manner so significant that it reaches the level of seriousness necessary for a finding that it constitutes persecution within the meaning of Article 9(1) of the Directive.
56) However, the term of imprisonment which accompanies a legislative provision which, like those at issue in the main proceedings, punishes homosexual acts is capable, in itself of constituting an act of persecution within the meaning of Article 9(1) of the Directive, provided that it is actually applied in the country of origin which adopted such legislation.
57) Such a sanction infringes Article 8 ECHR, to which Article 7 of the Charter corresponds, and constitutes punishment which is disproportionate or discriminatory within the meaning of Article 9(2)(c) of the Directive.