Opinion of the Advocate General — ECLI:EU:C:2023:314
Date: 2023-04-20
Language of the case: Bulgarian
Subject matter: Asylum policy;Area of freedom, security and justice
Procedure: Reference for a preliminary ruling
Origin: Bulgaria

Summary of the request for a preliminary ruling pursuant to Article 98(1) of 
the Rules of Procedure of the Court of Justice  
Date lodged:  
6 October 2021 
Referring court:  
Administrativen sad Sofia-grad (Bulgaria) 
Date of the decision to refer:  
29 September 2021 
Applicant:  
WS 
Defendant:  
Intervyuirasht organ na Darzhavna agentsia za bezhantsite pri 
Ministerskia savet 
  
Subject matter of the main proceedings 
Conditions for granting international protection under Directive 2011/95/EU in 
the case of gender-based violence against women in the form of domestic 
violence; alternative possibility of granting subsidiary protection in the light of 
real threats of honour killing in the event that the applicant returns to her country 
of origin. 
Subject matter and legal basis of the request 
Interpretation of Directive 2011/95/EU of the European Parliament and of the 
Council of 13 December 2011 on the basis of the second paragraph of Article 267 
TFEU 
EN 
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Questions referred for a preliminary ruling 
1. For the purpose of classifying gender-based violence against women as a 
ground for granting international protection under the 1951 Refugee Convention 
relating to the Status of Refugees and under Directive 2011/95/EU of the 
European Parliament and of the Council of 13 December 2011 on standards for 
the qualification of third-country nationals or stateless persons as beneficiaries of 
international protection, for a uniform status for refugees or for persons eligible 
for subsidiary protection, and for the content of the protection granted, do the 
definitions of terms and concepts in the United Nations Convention on the 
Elimination of All Forms of Discrimination against Women of 18 December 1979 
and the Council of Europe Convention on preventing and combating violence 
against women and domestic violence apply in accordance with recital 17 of 
Directive 2011/95/EU, or does gender-based violence against women, as a ground 
for granting international protection under Directive 2011/95, have an autonomous 
meaning which differs from that in the abovementioned instruments of 
international law? 
2. In the case where gender-based violence against women is alleged, must 
membership of a particular social group as a reason for persecution pursuant to 
Article 10(1)(d) of Directive 2011/95 be established by taking account solely of 
the biologically defined sex or socially constructed gender of the victim of 
persecution (violence against a woman merely because she is a woman), can the 
specific forms/acts/actions of persecution referred to in the non-exhaustive list in 
recital 30 be a relevant factor in determining the ‘visibility of the group in 
society’ – that is to say, can they be its distinguishing feature – depending on the 
circumstances in the country of origin, or can those acts relate only to the acts of 
persecution under Article 9(2)(a) or (f) of Directive 2011/95? 
3. In the case where the person applying for protection alleges gender-based 
violence in the form of domestic violence, does that person’s biologically defined 
sex or socially constructed gender constitute a sufficient ground for determining 
membership of a particular social group under Article 10(1)(d) of Directive 
2011/95, or must an additional distinguishing characteristic be established, on a 
literal interpretation, to the letter, of Article 10(1)(d) of Directive 2011/95/EU, 
which provides for the conditions as cumulative in nature and the gender-related 
aspects as alternative in nature? 
4. In the case where the applicant alleges gender-based violence in the form of 
domestic violence by a non-State actor of persecution within the meaning of 
Article 6(c) of Directive 2011/95, is Article 9(3) of Directive 2011/95 to be 
interpreted as meaning that it is sufficient for the purpose of establishing a causal 
link that there is a link between the reasons for persecution set out in Article 10 
and the acts of persecution referred to in paragraph 1 of that article, or is it 
mandatory to establish absence of protection from the alleged persecution; does 
the link exist in cases where the non-State actors of persecution do not perceive 
the individual acts of persecution/violence as such as being gender-based? 
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5. Can the real threat of an honour killing in the event that the person 
concerned is returned to the country of origin justify – if the other conditions for 
this are met – the granting of subsidiary protection under Article 15(a) of 
Directive 2011/95, read in conjunction with Article 2 of the ECHR (no one is to 
be deprived of his or her life intentionally), or is that threat to be classified as 
harm under Article 15(b) of Directive 2011/95, read in conjunction with Article 3 
of the ECHR, as interpreted in the case-law of the European Court of Human 
Rights, in an overall assessment of the risk of further acts of gender-based 
violence; is it sufficient for the granting of such protection that the applicant has 
stated that he or she is subjectively unwilling to avail himself or herself of the 
protection of the country of origin? 
Provisions of European Union law relied on 
Treaty on the Functioning of the European Union, Article 78(1) 
Directive 2011/95/EU of the European Parliament and of the Council of 
13 December 2011 on standards for the qualification of third-country nationals or 
stateless persons as beneficiaries of international protection, for a uniform status 
for refugees or for persons eligible for subsidiary protection, and for the content of 
the protection granted, in particular recitals 17, 29 and 30 and Article 2(d) and (f), 
Article 4(3)(c), Article 6, Article 7(2), Article 9(1) to (3), Article 10(1) and (2) 
Directive 2013/32/EU of the European Parliament and of the Council of 26 June 
2013 on common procedures for granting and withdrawing international 
protection, in particular Article 33(2) and Article 40(2) and (3) 
European Parliament resolution of 8 March 2016 on the situation of women 
refugees and asylum seekers in the EU (2015/2325(INI)) (‘EP Resolution of 
8 March 2016’), in particular points 13, 15 and 18 
European Parliament resolution of 12 September 2017 on the proposal for a 
Council decision on the conclusion, by the European Union, of the Council of 
Europe Convention on preventing and combating violence against women and 
domestic violence 
European Parliament resolution of 4 April 2019 seeking an opinion from the 
Court of Justice on the compatibility with the Treaties of the proposals for the 
accession by the European Union to the Council of Europe Convention on 
preventing and combating violence against women and domestic violence and on 
the procedure for that accession (2019/2678(RSP)) 
Council Decision (EU) 2017/866 of 11 May 2017 on the signing, on behalf of the 
European Union, of the Council of Europe Convention on preventing and 
combating violence against women and domestic violence with regard to asylum 
and non-refoulement 
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Case-law of the Court of Justice of the European Union relied on 
Judgment (Grand Chamber) of 14 May 2020, FMS and Others (Joined Cases 
C-924/19 PPU and C-925/19 PPU, ЕU:С:2020:367), in particular paragraphs 192, 
196 and 197 
Judgment of 7 November 2013, X and Others (Joined Cases C-119/12 to 
C-201/12, ЕU:С:2013:720), paragraphs 45 to 47 
Judgment of 4 October 2018, Ahmedbekova (Case C-652/16, ЕU:C:2018:801), 
paragraph 89 
Provisions of international law relied on 
Convention relating to the Status of Refugees, done at Geneva on 28 July 1951, 
as supplemented and amended by the Protocol Relating to the Status of Refugees, 
done at New York on 31 January 1967 (‘the Geneva Convention’), in particular 
the preamble and Article 1(A)(2) 
Convention on the Elimination of All Forms of Discrimination against 
Women (CEDAW) (‘Convention against discrimination against women’), which 
was adopted by the General Assembly of the United Nations on 18 December 
1979, in particular Article 1 
General Recommendations of the CEDAW Committee on the Elimination of 
Discrimination against Women Nos 19, 24 and 25 
Convention on preventing and combating violence against women and 
domestic violence, adopted by the Committee of Ministers of the Council of 
Europe on 7 April 2011 (‘the Istanbul Convention’), in particular Articles 2, 3, 60 
and 61 
Convention for the Protection of Human Rights and Fundamental Freedoms 
(‘ECHR’), in particular Articles 2, 3 and 15 
Case-law of the European Court of Human Rights relied on 
ECtHR, judgment of 9 June 2009, OPUZ v. Turkey (No 33401/02), § 97 and 98 
ECtHR, judgment of 20 July 2010, N. v. Sweden (No 23505/09), § 55, 59, 60, 61 
and 62 
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Provisions of national law relied on 
Zakon za ubezhishteto i bezhantsite (Law on asylum and refugees; ‘the 
ZUB’), in particular Articles 8, 9, 13 and 76b and Paragraph 1(5) and (6), of the 
Additional provisions for the ZUB 
Succinct presentation of the facts and procedure in the main proceedings 
1 The applicant, WS, is a national of the Republic of Turkey and is of Kurdish 
ethnicity, a Sunni Muslim and divorced. In June 2018, she left Turkey in order to 
travel to Bulgaria, and did so legally with a national passport and a work visa. She 
arrived in the city of Plovdiv, Bulgaria. With the help of a smuggler, she obtained 
a one-week visa for Germany and travelled by plane to Berlin to stay with her 
aunt. On 21 June 2018, she applied for protection in that country, but was 
readmitted to Bulgaria by decision of the Darzhavna agentsia za bezhantsite (State 
Agency for Refugees; ‘the DAB’) of 28 February 2019 on the basis of a request to 
take charge from the Federal Republic of Germany for the purposes of examining 
her application for international protection. 
2 In three interviews conducted in October 2019, the applicant stated that she had 
experienced problems with her ex-husband BS in Turkey, to whom she had been 
forcibly married by her family and with whom she had three daughters. After 
several incidents of violence, as a result of which she was repeatedly placed in 
shelters for victims of violence, she left her husband in September 2016 and took 
up residence with another man. She entered into a religious marriage with him in 
2017, which produced a son. Her biological family did not support her in the 
disputes with BS. She claimed that she fears for her life and provided evidence 
that she had been threatened by her [ex-]husband, his family and her biological 
family, and she stated that she fears that they would kill her if she returned to 
Turkey. She stated that she has been officially divorced from her first husband 
since September 2018, when she had already left Turkey. 
3 By decision of 21 May 2020, the Chairman of the DAB rejected WS’s application 
for international protection as unfounded. The authority considers that the reasons 
given for leaving Turkey are irrelevant to the international protection applied for. 
It takes the view that they could not be linked to any of the grounds provided for 
in Bulgarian law, namely a well-founded fear of being persecuted for reasons of 
race, religion, nationality, political opinion or membership of a particular social 
group. Moreover, according to the authority, the applicant did not claim that she 
had been persecuted because of her gender. After being challenged before the 
courts, that decision was upheld by the Administrativen sad Sofia-grad 
(Administrative Court, Sofia City) and the Varhoven administativen sad (Supreme 
Administrative Court). 
4 On 13 April 2021, WS lodged a new application for international protection, 
attaching nine new pieces of documentary evidence that she considers to be 
relevant to her personal situation and her country of origin. On the basis of that 
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application and evidence, WS asserts that there are grounds for granting her 
refugee status (under Article 8(1) of the ZUB) due to her membership of a 
particular social group, namely that of women who have experienced domestic 
violence and of women who are potential victims of honour crimes. It is stated in 
the application that her persecutors are non-State actors from whom the Turkish 
State cannot protect her, irrespective of what measures it takes. The application 
objects to her possible return to Turkey, where the foreigner has no one to rely on 
and she fears being killed by her ex-husband or being the victim of an honour 
killing by his or her biological family or being forced to marry again. She 
considers that her situation has since worsened as she has given birth to a child by 
a man to whom she is not married. She points to Turkey’s withdrawal from the 
Istanbul Convention in March 2021 as a new circumstance. WS submits that she 
meets the requirements for the grant of humanitarian status under Article 9(1)(1) 
and (2) of the ZUB, as she would be exposed to violations of Articles 2 and 3 of 
the ECHR in the event that she were to be returned to Turkey. 
5 The Intervyuirasht organ pri Darzhavna agentsia za bezhantsite (Interviewing 
Body of the DAB) refused WS’s subsequent application to open the procedure for 
granting international protection. WS’s action before the referring court is directed 
against that refusal. The judgment of that court cannot be challenged by an appeal 
in cassation. It is final and takes effect from the date of its delivery. 
The essential arguments of the parties in the main proceedings 
6 The applicant seeks the annulment of the decision of the Interviewing Body of the 
DAB. She considers that, by her subsequent application for protection, she has 
submitted new documentary evidence concerning her personal situation and her 
country of origin. She submits that the statutory requirements for granting refugee 
status are met in her case and that, moreover, she has submitted new evidence 
demonstrating that she meets the requirements for granting humanitarian status 
under the ZUB. 
7 The defendant contests the action and claims that it should be dismissed. It takes 
the view that the documentary evidence has been examined in the contested 
decision and that the applicant has not presented any new circumstances 
concerning her personal situation and country of origin which would constitute 
grounds for granting her refugee status and humanitarian status under the ZUB 
and which had not already been taken into account in the previous refusal to grant 
international protection. 
8 The referring court considers that the conditions for submitting a request for a 
preliminary ruling to the Court of Justice of the European Union (‘the Court’) are 
met. 
The referring court takes the view that the request for a preliminary ruling is 
admissible because the factual and legal situation in the present case comes within 
the scope of EU law, namely Directive 2013/32/EU and Directive 2011/95/EU. 
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The adjudicating Chamber states that it has not been able to identify any 
judgments of the Court on identical issues that would be of assistance in resolving 
the dispute before it. 
Succinct presentation of the reasoning in the request for a preliminary ruling 
9 According to the referring court, the assessment of the existence of new elements 
in the applicant’s refugee history is directly linked to the examination of whether 
she meets the substantive conditions for the grant of international protection under 
Directive 2011/95/EU. Having regard to recital 17 of that directive, the referring 
court outlines the body of instruments of international law which are binding on 
the Member States under that provision. In addition to the Geneva Convention and 
its Protocol Relating to the Status of Refugees, those instruments are the 
Convention against discrimination against women and the Istanbul Convention 
(particularly in view of the legal definitions contained in Articles 34 to 40 
thereof). Although the latter Convention is not applicable in Bulgaria (since, as 
held in a decision of the Bulgarian Konstitutsionen sad (Constitutional Court), it is 
not compatible with the Bulgarian Constitution and cannot therefore be ratified), 
the referring court takes the view that it is relevant in the light of Article 10(1)(d) 
of Directive 2011/95 in order to take into account the conditions in the country of 
origin in the event that the applicant were to be returned there (in particular in 
view of Turkey’s withdrawal from that convention). 
10 The main question that arises in relation to the applicable international treaties in 
the present case is whether the referring court may base its assessment of the 
concept of ‘gender-based violence against women’ on the legal definitions of the 
Convention against discrimination against women and the Istanbul Convention, or 
whether that concept has its own autonomous meaning. The first question 
referred was formulated in order to clarify those aspects. 
11 With regard to the second question referred, the adjudicating Chamber considers 
that General Recommendations Nos 19, 24 and 25 of the United Nations 
Committee on the Elimination of Discrimination against Women (‘the CEDAW 
Committee’) provide useful interpretative guidance. According to those 
recommendations, gender-based violence is defined, on the one hand, as violence 
that is directed against a woman because she is a woman or that affects women 
disproportionately, and, on the other hand, as violence that is directed against 
groups of women who belong to vulnerable or disadvantaged groups or against 
groups of women who, in addition to suffering discrimination directed against 
them as women, may also suffer multiple forms of discrimination based on 
additional grounds such as race, ethnic or religious identity, disability, age or 
other factors. 
12 On the one hand, the Istanbul Convention also defines ‘gender-based violence 
against women’ as violence that is directed against a woman because she is a 
woman, and ‘violence against women’ as a violation of human rights. The 
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referring court takes the view that that violation of human rights can be related to 
the acts of persecution under Article 9(1) of Directive 2011/95/EU. On the other 
hand, the Istanbul Convention defines ‘domestic violence’ as all acts of physical, 
sexual, psychological or economic violence that occur within the family or 
domestic unit or between former or current spouses or partners, whether or not the 
perpetrator shares or has shared the same residence with the victim. The referring 
court takes the view that the specific acts of gender-based violence against women 
thus regulated correlate with the acts of persecution referred to in Article 9(2)(a) 
and (f) of Directive 2011/95/EU. 
13 Next, the referring court takes into account the EP Resolution of 8 March 2016. 
That resolution highlights that gendered forms of violence and discrimination, 
including but not limited to sexual violence, forced marriage, domestic violence, 
so-called honour crimes and state-sanctioned gender discrimination, constitute 
persecution and should be valid reasons for seeking asylum in the European 
Union. However, the Chamber also takes into account the Opinion of Advocate 
General G. Hogan of 11 March 2021 in Opinion procedure 1/19, initiated 
following a request made by the European Parliament (ЕU:С:2021:198). 
According to point 161 of that opinion, as matters stand, EU law does not provide 
for a general obligation to take account of violence against women as one of the 
forms of persecution that may give rise to refugee status. 
14 With regard to the classification of gender-based violence against women as a 
ground for granting international protection, the referring court has doubts as to 
how the concept of membership of a particular social group pursuant to 
Article 10(1)(d) of Directive 2011/95 is to be interpreted. In particular, it has 
doubts as to whether the biologically defined sex/socially constructed gender of 
the victim of persecution (violence against a woman merely because she is a 
woman) is sufficient to establish such membership. Or can the specific 
forms/acts/actions of persecution be decisive for the ‘visibility of the group in 
society’ (that is to say, can they be its distinguishing feature), taking into account 
the circumstances in the country of origin. Lastly, it has doubts as to whether 
those acts can relate only to acts of persecution under Article 9(2)(a) and (b) of 
Directive 2011/95. In other words, whether an additional distinguishing 
characteristic of the group would have to be established, taking into account a 
literal interpretation, to the letter, of Article 10(1)(d) of Directive 2011/95. 
15 In its reasoning for the third question referred, the adjudicating Chamber states 
that Article 10(1)(d) of Directive 2011/95 defines membership of a particular 
social group by establishing two conditions which must be met cumulatively. 
First, members of that group must share an ‘innate characteristic’, or a ‘common 
background that cannot be changed’, or share a characteristic or belief that is ‘so 
fundamental to identity or conscience that a person should not be forced to 
renounce it’. Second, that group must have a distinct identity in the relevant third 
country, because it is perceived as being ‘different’ by the surrounding society. 
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16 At the same time, the same provision expressly refers to gender-related aspects, 
including gender identity, as being relevant to the concept, but does so through the 
use of the conjunction ‘or’, which is an indication of the existence of alternatives: 
for the purposes of determining membership of a particular social group or 
identifying a characteristic of such a group. 
17 The referring court emphasises that the definition of membership of a particular 
social group cannot be considered in isolation from the circumstances in the 
country of origin. However, it states that, in attempting to categorise the alleged 
domestic violence as a form of gender-based violence, account must be taken of 
the fact that it affects women at all levels of society, irrespective of their age, 
education, income, social status or country of origin. Yet, in some societies, 
domestic violence is too often considered a personal problem and is too easily 
tolerated. This makes it even more difficult for the referring court to accept the 
assumption that the specific form/act of gender-based violence (domestic 
violence) is decisive for the ‘visibility of the group in society’ as an element of the 
definition in Article 10(1)(d) of Directive 2011/95. By contrast, a specific feature 
of the alleged gender-based persecution is that the perpetrator of the violence is a 
person already known to the victim, and the victim is often in a position of 
economic or other form of dependence on the perpetrator, which increases her fear 
of reporting the violence. As a result, the victim is at risk of being re-victimised 
by the perpetrator or by the family. In that regard, the referring court finds 
additional arguments militating against the assumption that, in respect of the 
domestic violence specifically alleged in the present case, the form/acts of gender-
based persecution is/are decisive for the group’s ‘visibility’ in society for the 
purposes of the provision of Directive 2011/95 at issue. 
18 In its reasoning for the fourth question referred, the referring court draws the 
intermediate conclusion that, in the present case, the only relevant factor in 
determining membership of a particular social group is the biologically defined 
sex or socially constructed gender of the applicant. The referring court considers 
that recital 30 and Article 4(3)(c) of Directive 2011/95 provide an indication of 
the validity of that interpretation. In particular, the referring court takes the view 
that violence against a woman because she is a woman constitutes the relevant 
reason for persecution. The victim suffered a number of concrete 
forms/acts/actions of gender-based persecution, including the alleged domestic 
violence and threat of honour killing. Where those specific acts/actions, by their 
nature or repetition, reach the level of seriousness under Article 9(1) of Directive 
2011/95 and can be classified as a severe violation of basic human rights, gender-
based violence is a ground for granting refugee status, provided that the applicant 
demonstrates a well-founded fear of such persecution. 
19 Notwithstanding the above, the adjudicating Chamber is reluctant to classify the 
alleged gender-based violence in the form of domestic violence as a ground for 
granting international protection. The question that arises is how the causal link 
under Article 9(3) of Directive 2011/95/EU is to be established in cases of alleged 
violence by a non-State actor of persecution within the meaning of Article 6(c) of 
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Directive 2011/95. In view of the use of the conjunction ‘or’ in recital 29 and 
Article 9(3) of Directive 2011/95, the causal link is interpreted as: (i) a link 
between the reasons for the persecution and the acts of persecution; or (ii) a link 
between the reasons for the persecution and the absence of protection from the 
acts of persecution in cases where there is no link between the reasons and the acts 
of persecution. 
20 However, according to the definition in Article 6(c) of Directive 2011/95, in the 
case where persecution by non-State actors is alleged, it must be demonstrated 
that the actors mentioned in points (a) and (b) are unable or unwilling to provide 
protection against persecution or serious harm as defined in Article 7. Thus, in the 
specific case of violence, a causal link with the absence of protection in the 
country of origin would necessarily have to be established. In that regard, the 
referring court also asks the question whether it is relevant for the purpose of 
establishing the causal link under Article 9(3) of the directive that neither the non-
State actors of persecution nor the victims consider the individual acts of 
persecution/violence as such to be gender-specific or directed against the victim 
solely because of his or her biologically defined sex or socially constructed 
gender. In particular, how is that question to be answered in the case where the 
applicants do not state that they have had ‘gender-based problems’ when 
presenting the facts of their refugee history? Accordingly, in the present case, the 
administrative authority also found that ‘the applicant is of full age and has not 
reported having been persecuted because of her gender’. 
21 The fifth question referred is raised by the referring court in the event that the 
alleged persecution in the form of gender-based violence – domestic violence – 
does not prove to be a ground for granting refugee status. In that case, it would be 
necessary to examine whether the conditions for granting subsidiary protection are 
met, that is to say, whether the applicant would face a real risk of suffering serious 
harm within the meaning of Article 2(f) of Directive 2011/95, read in conjunction 
with Article 15(a) and (b) thereof, in the event that she is returned to her country 
of origin. In that respect, the Chamber has due regard for recital 34 of Directive 
2011/95, in conjunction with Articles 2 and 3 of the ECHR, as well as Article 3(a) 
of the Istanbul Convention and paragraphs 1 and 7 of General Recommendation 
No 19 of the CEDAW Committee. Those provisions define gender-based violence 
as a violation of fundamental human rights and freedoms. 
22 In that connection, the adjudicating Chamber asks the question as to how the 
alleged threat of honour killing is to be classified for the purposes of subsidiary 
protection, namely whether such a threat is sufficient to establish a real risk of 
suffering serious harm under Article 15(a) of Directive 2011/95 or whether it is to 
be interpreted as inhuman or degrading treatment within the meaning of 
Article 15(b) of Directive 2011/95, read in conjunction with Article 3 of the 
ECHR, in the light of the risks, as alleged by the applicant, of another forced 
marriage, stigmatisation in a society which disapproves of single women who 
have had a child out of wedlock, and in the light of the fear of being re-victimised 
by her ex-husband or his or her family. 
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In particular, the referring court seeks to ascertain whether the subjective element 
of the definition in Article 2(f) of Directive 2011/95 (‘unwilling to avail himself 
or herself of the protection of that country’), including an applicant’s refusal to 
avail himself or herself of refuges for victims of domestic violence, because of the 
prospect of years of quasi-imprisonment, which leads many to return to violent 
family relationships in the absence of support from a male or from family, is 
sufficient to grant subsidiary protection where there is a real threat of honour 
killing, which concerns a single successful act by the perpetrator.