Belgium - Council of State, 16 February 2012, No. 218075
Keywords:
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Individual assessment
Description
The carrying out of an assessment on an individual and personal basis. In relation to applications for international protection, per Article 4(3) of the Qualification Directive, this includes taking into account: (a) all relevant facts as they relate to the country of origin at the time of taking a decision; (b) the relevant statements and documentation presented by the applicant; “(c) the individual position and personal circumstances of the applicant, including factors such as background, gender and age, so as to assess whether, on the basis of the applicant's personal circumstances, the acts to which the applicant has been or could be exposed would amount to persecution or serious harm; (d) whether the applicant's activities since leaving the country of origin were engaged in for the sole or main purpose of creating the necessary conditions for applying for international protection, so as to assess whether these activities will expose the applicant to persecution or serious harm if returned to that country; (e) whether the applicant could reasonably be expected to avail himself of the protection of another country where he could assert citizenship.” |
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Indiscriminate violence
Description
Violence in situations of international or internal armed conflict which presents a serious and individual threat to a civilian's life or person for the purposes of determining the risk of serious harm in the context of qualification for subsidiary protection status under QD Art. 15(c). |
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Inhuman or degrading treatment or punishment
Description
A form of serious harm for the purposes of the granting of subsidiary protection. The Trial Chamber of the International Criminal Tribunal for the Former Yugoslavia in Celibici defined cruel or inhuman treatment as ‘an intentional act or omission, that is an act which, judged objectively, is deliberate and not accidental, that causes serious mental or physical suffering or injury or constitutes a serious attack on human dignity.’ “Ill-treatment means all forms of cruel, inhuman or degrading treatment or punishment, including corporal punishment, which deprives the individual of its physical and mental integrity." |
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Personal circumstances of applicant
Description
The range of factors such as background, gender, age, and individual position which must to be taken into account in the assessment of an application for international protection per Article 4(3)(c) of the Qualification Directive. |
Headnote:
The real risk of suffering the type of serious harm envisaged in Article 15(b) of the Qualification Directive (torture and inhuman or degrading treatment) may be established by an Applicant who proves that he is a member of a group systematically targeted for such harm and who does not put forward any other circumstances relating to his individual case.
Facts:
The Applicant stated that there was a real risk of serious harm (inhuman and degrading treatment) in the event of his returning to his country of origin. He based this risk solely on the grounds of his membership of the group of asylum Applicants whose applications had been rejected.
TheOffice of the Commissioner General for Refugees and Stateless PersonsCGRS dismissed the Applicant’s application for international protection. The CALL, which considered that the Applicant had not put forward any individual factors establishing a real risk of his suffering inhuman or degrading treatment in the event of his return, upheld this decision.
Decision & reasoning:
Before the Council of State, the Applicant criticised the CALL for not having taken his position as a member of the group of asylum seekers whose applications had been rejected into account.
The CGRS defended the CALL ruling, stating that the CJEU’s Elgafaji ruling relaxed the requirement to prove an individual risk of serious harm only in cases of indiscriminate violence as referred to in Article 15(c) of the Qualification Directive and not in cases of inhuman and degrading treatment as referred to in Article 15(b) of the Qualification Directive.
Firstly, the Council of State pointed out that according to the CJEU’s Elgafaji ruling, Article 15(b) of the Qualification Directive should be interpreted in accordance with the case law of the European Court of Human rights.
Secondly, the Council of State emphasised that the European Court of Human Rights’ ruling in the case of Saadi v Italy, upheld the principle that an individual’s membership of a “group systematically exposed to inhuman and degrading treatment” freed him from the need to put forward other circumstances relevant to his case in order to prove a real risk of suffering a breach of Article 3 of the ECHR.
The Council of State concluded that, in requiring the Applicant to provide evidence of individual circumstances other than membership of a given group, the CALL breached its duty to state the reasons on which the decision was based. The CALL should first have dealt with the question of whether this group was systematically exposed to inhuman and degrading treatment.
Outcome:
Annulment of the CALL ruling (the case was referred back to the CALL)
Observations/comments:
In this ruling, the Council of State interpreted Article 15(b) of the Qualification Directive in accordance with the case law of the European Court of Human Rights relating to Article 3 of the ECHR. This led it to reject the Elgafaji interpretation according to which an Applicant for international protection was only freed from the need to prove individual circumstances in the event of indiscriminate violence.