International Women’s Rights Day: Focus on a judgment by the Court of Justice of the European Union confirming the right to international protection for women victims of gender-based violence.
On January 16, 2024, the Court of Justice of the European Union (CJEU) handed down a judgment containing important details on the granting of international protection to women from third countries fleeing gender-based violence. On the occasion of International Women’s Rights Day, the CGRS is highlighting certain elements of the judgment, putting the emphasis on the fact that the practices of the CGRS are consistent with the provisions set out therein.
The Court held that « women as a whole may be considered as belonging to a particular social group within the meaning of the Directive « Qualification » (Directive 2011/95/EU, Article 10, paragraph 1) when it is established that, in their country of origin, they are, due to their gender, exposed to physical or mental violence, including sexual violence and domestic violence » (Case WS, C621/21).
The judgment goes back to the two conditions necessary to consider that a group constitutes « a particular social group » within the meaning of the 1951 Convention relating to the Status of Refugees.
First of all, the judgment notes that « the fact of being female is an innate characteristic and is therefore sufficient to satisfy that condition ». It states that « women who share an additional common trait such as, for example, another innate characteristic, or a common history which cannot be altered, such as a particular family situation » may also belong to a particular social group; and « the fact that women have escaped from a forced marriage or, in the case of married women, have left their homes, may be considered as a « common history which cannot be altered » within the meaning of that provision ».
Second, the judgment states that « [...] women are perceived in a different way by the surrounding society and recognized as having their own identity in that society, in particular because of social, moral or legal standards prevailing in their country of origin ».
In addition, the judgment reiterates the primacy of the examination of the application from the point of view of the Geneva Convention. It adds that even if none of the five criteria (set out in the 1951 Convention relating to the Status of Refugees) are met, women who run a real risk of being killed or subjected to violence in their countries must be granted subsidiary protection in one of the EU Member States, if their national authorities (in their countries of origin) are unable or unwilling to protect them.
An important step towards more harmonization of practices
At the Belgian level, since the interpretation of the notion of social group is already very broad in Belgium, the practices of the CGRS, particularly in terms of the classification of acts experienced or feared, already correspond to the provisions set out in that judgment.
At the EU level, this judgment is expected to make significant progress in terms of harmonizing practices within the 27 member countries regarding women fleeing gender-based violence. Indeed, once the CJEU has handed down its judgment, the national court that referred the case to it must resolve it in accordance with the Court's decision. In the same way, the content of this judgment is binding on other national courts, which would face a similar issue.