The law requires for the person concerned to have been persecuted in his/her own state or to have a well-founded fear of persecution in order to be eligible to apply for and receive protection as a refugee in another country.
Persecution constitutes a violation of basic human rights. It can also be an accumulation of other acts which are so severe by their nature and repetition that they result, even though indirectly, in a violation of one of the basic human rights. The actor of persecution may be the state through its bodies and institutions. In addition, the actor of persecution may be a non-state institution which the state is unable or unwilling to efficiently counteract. For example, such an actor could be a terrorist or military group which the state authorities, the army, the police or the court are unable to counter or resist efficiently enough to disrupt the violation of human rights perpetrated by that organization.
Persecution is related to acts of physical or mental violence. Persecution is also established where the state takes various legal, administrative, police or judicial measures which are applied for the purpose of discriminating specific individuals or groups within the population. Persecution may also be established in relation to the fear of punishment due to draft evasion, where the reason for this evasion is preventing the commitment of war crimes or crimes against peace and humanity.
Fear of persecution may also arise by reason of events which have occurred since the foreigner left his/her country of origin or on the basis of activities which the foreigner has engaged in since he/she left the country of origin unless such activities have been carried out for the sole purpose of receiving protection as a refugee.
The acts of persecution, however, are not sufficient grounds for receiving refugee status. Persecution must have been committed or may be committed with respect to a specific individual for one or several of the following five reasons:
• Race – race relates to the colour of the skin, descent or membership of a particular ethnic group.
An example for persecution based on race is depriving the black-skinned citizens of the South African Republic of any civil and political rights during the apartheid regime from 1948 till 1990.
• Religion – religion is the belief in God, as well as any related worships, rites, rituals and ceremonies that are practiced either individually or collectively by means of masses in private or in public. A certain religion can also be practiced by observing a specific conduct imposed by religious beliefs. Persecution for religious reasons can also occur in cases of conversion into another religion if such an act is prohibited by the state regime. Persecution for religious reasons, however, occurs also in cases where an individual does not have any religious beliefs (atheism) or does not want and refuses to either profess or obey the rules of a particular religion whether or not he/she belongs to that denomination, for reasons of which his/her human rights are limited and violated in the country of origin.
An example for persecution based on religion is the massacre of the Protestants (Hunogotes) in 1572 in France by virtue of an order by Catherine de Medici, the mother of the Catholic King Charles IX.
• Nationality – nationality is in fact the citizenship of an individual, but it can also be his/her ethnic descent. However, nationality is not confined only to citizenship or lack of citizenship in relation to stateless persons (apatrides). Nationality also includes membership of a group whose ethnic, linguistic, cultural, geographic or political identity differs from that of the remaining population or is identical with that of the population of another state.
An example for persecution based on membership of an ethnic group is the Holocaust against the Jews in Europe during the Second World War.
• Particular social group – membership of a social group whose members share a common and innate characteristic that cannot be changed. This characteristic must be so fundamental to the identity or conscience of the members of the group that due to it the group and its members are perceived by the surrounding society as being different and separate from that society.
An example for persecution based on membership of a particular social group is the violation of an individual’s human rights for reasons of his/her untraditional sexual orientation.
• Political opinion or belief – these are opinions, ideas or beliefs concerning the state, its bodies and organisations or others, non-governmental organisations, as well as on matters related to their policies and methods. Whether or not these opinions, ideas or beliefs were specifically acted upon, what suffices is that the actor of persecution knows about them and that they are the reason for persecution and limitation of human rights.
For example, the persecution of the opponents of the military junta in Chile from 1973 till 1990 during the dictatorship of General Augusto Pinochet.
It is accepted that there is no well-founded fear of persecution where a state authority or an organization controlling a considerable part of the territory of the state has taken measures against persecution and the foreigner has access to this protection.
While there may be fears of persecution based on one of the above reasons, refugee status might not be granted if the fears of persecution are unfounded and do not exist in a part of the country of origin. It is required, however, that the applicant has unhindered access to that safe part of the state territory, and the situation there is lasting and of a non-temporary nature.