France - CRR, Plenary session, 29 July 2005, Miss A., n°487336
| Country of Decision: | France |
| Country of applicant: | Somalia |
| Court name: | Refugee Appeals Board/ Commission des recours des réfugiés (CRR) |
| Date of decision: | 29-07-2005 |
| Citation: | CRR, SR, 29 juillet 2005, Mlle A., n° 487336 |
| Additional citation: | Commission des recours des réfugiés, Sections réunies, 29 juillet 2005, Mlle A., n° 487336 |
Keywords:
| Keywords |
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Actors of protection
Description
"Actors such as: (a) the State; or (b) parties or organisations, including international organisations, controlling the State or a substantial part of the territory of the State; who take reasonable steps to prevent the persecution or suffering of serious harm, inter alia, by operating an effective legal system for the detection, prosecution and punishment of acts constituting persecution or serious harm, and the applicant has access to such protection." |
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Actor of persecution or serious harm
Description
Per Art. 6 QD actors who subject an individual to acts of serious harm (as defined in Art. 15). Actors of persecution or serious harm include: (a) the State; (b) parties or organisations controlling the State or a substantial part of the territory of the State; (c) non-State actors, if it can be demonstrated that the actors mentioned in (a) and (b), including international organisations, are unable or unwilling to provide protection against persecution or serious harm as defined in Article 7. |
Headnote:
Refugee Appeals Board/ Commission des recours des réfugiés (CRR) (CRR) held that the Somali government (Federal Transitional Government), was at the time of the decision, unable to effectively exercise organised power within Somali territory and under these circumstances to provide protection to the members of the Reer Hamar clan; no other authority is able to provide protection to the members of this community.
Facts:
The applicant, from Somalia, was of mixed ethnic origin (Reer Hamar clan through her father and Darod Mareehan clan through her mother). She used to live in the region of Gedo. As a result of her membership of the Reer Hamar clan, she and her family constantly suffered ill treatment. She was subject to serious abuse from militia members.
Decision & reasoning:
The Refugee Appeals Board/ Commission des recours des réfugiés (CRR) considered that it was established that the applicant was persecuted for reasons of her ethnic origin and that the applicant had a well-founded fear of being persecuted again for the same reason; that these acts were mainly committed by members of the Darod clan, which at the time controlled her region of origin and belong to the clans, sub-clans and factions which still fight in order to create or spread zones of influence within Somali territory.
The CRR/CNDA also considered that the Somali government (called the Federal Transitional Government) was , at the present time unable to effectively exercise organised power within Somali territory and under these circumstances to provide protection to the members of the Reer Hamar clan; that no other authority was able to provide protection to the members of this community; that therefore the applicant can be seen as having a well-founded fear of being persecuted if returned to her country of origin, within the meaning of Article 1A(2) of the 1951 Refugee Convention.
Outcome:
Refugee status was granted to the applicant.
Observations/comments:
Article 6 and 7 of the Qualification Directive are transposed in French legislation by Article L.713-2 Ceseda which reads [unofficial translation]:
Article L.713-2 al.1: The persecutions which are taken into account for the recognition of refugee status and the serious threats which can lead to the benefit of subsidiary protection can originate from the State authorities, parties or organizations controlling the State or a substantial part of the territory of the State, or from non-State actors if the authorities defined below [article L.713-2 al.2] refuse or are unable to provide a protection.
Article L.713-2 al.2: The authorities which may provide a protection can be the State authorities and international and regional organizations.
The actors of protection are defined in a more limitative way in French legislation than in the QD, i.e. parties are excluded from the list. Also, unlike the QD, Article L.713-2 al.2 adds “regional organizations”.
NB: The CNDA (National Asylum Court) was called CRR (“Commission des recours des réfugiés”, Refugee Appeals Board) until the Act n°2007-1631 of 20 November 2007.
Relevant International and European Legislation:
Cited National Legislation:
| Cited National Legislation |
| France - Ceseda (Code of the Entry and Stay of Foreigners and Asylum Law) - Art L.713-2 |