Belgium – Council for Alien Law litigation, 20 December 2007, Nr. 5.277
Keywords:
| Keywords |
|
Burden of proof
Description
"In the migration context, a non-national seeking entry into a foreign State must prove that he or she is entitled to enter and is not inadmissible under the laws of that State. In refugee status procedures, where an applicant must establish his or her case, i.e. show on the evidence that he or she has well-founded fear of persecution. Note: A broader definition may be found in the Oxford Dictionary of Law." |
|
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." |
|
Serious harm
Description
In order to be eligible for subsidiary protection, a third country national or stateless person must demonstrate that if returned to his or her country of origin, or in the case of a stateless person, to his or her country of former habitual residence, s/he would face a real risk of serious harm as defined in QD Art. 15 and that s/he is unable, or owing to such risk, unwilling to avail her/himself of the protection of that country. Per Art.15:"(a) death penalty or execution; or (b) torture or inhuman or degrading treatment or punishment of an applicant in the country of origin; or (c) serious and individual threat to a civilian's life or person by reason of indiscriminate violence in situations of international or internal armed conflict." “Risks to which a population of a country or a section of the population is generally exposed do normally not create in themselves an individual threat which would qualify as serious harm.” |
|
Subsidiary Protection
Description
The protection given to a third-country national or a stateless person who does not qualify as a refugee but in respect of whom substantial grounds have been shown for believing that the person concerned, if returned to his or her country of origin, or in the case of a stateless person, to his or her country of former habitual residence, would face a real risk of suffering serious harm as defined in Article 15 of 2004/83/EC, and to whom Article 17(1) and (2) of 2004/83/EC do not apply, and is unable, or, owing to such risk, unwilling to avail himself or herself of the protection of that country.” “Note: The UK has opted into the Qualification Directive (2004/83/EC) but does not (legally) use the term Subsidiary Protection. It is believed that the inclusion of Humanitarian Protection within the UK Immigration rules fully transposes the Subsidiary Protection provisions of the Qualification Directive into UK law. |
Headnote:
In its assessment of real risk of serious harm the CALL took into consideration the psychological circumstances of the applicant. The CALL considered that the seriousness of the applicant’s past traumatic experiences (as a child soldier) had left such psychological marks on him that a future forced enrolment in the army would be psychologically unbearable for him and would, in his case, amount to inhuman and degrading treatment.
Facts:
The applicant, a Rwandan national, survived the 1994 genocide as a child. Later he was forcibly recruited as a child soldier and fought for 3 years in the Congo. The applicant claimed that he had denounced the atrocities that were being committed by the army and that, as a consequence, he had been placed in a military prison from which he escaped after four years and fled to Belgium. The Office of the Commissioner General for Refugees and Stateless Persons (CGRS) refused to grant the applicant refugee status or subsidiary protection, stating that his declarations were highly improbable and full of contradictions. His well-founded fear of persecution was not proven. The applicant lodged an appeal against this decision.
Decision & reasoning:
However, his four year imprisonment remained unproven and highly unlikely. The link with the grounds for persecution as listed in the 1951 Refugee Convention was therefore not established.
The CALL then turned to the issue of subsidiary protection and considered that the fact that the applicant had been enrolled as a child soldier in itself constituted inhuman and degrading treatment in the sense of Art 48/4(2)(b) of the Belgian Alien Act (transposition of Art 15(b) of the Qualification Directive). Referring to Art 4.4 of the Qualification Directive, the CALL found that the applicant had therefore demonstrated that he had already been subject to serious harm, that this was a serious indication of a real risk of future serious harm and that it now needed to be examined whether there were good reasons to believe that such harm would not be repeated.
The CALL considered that the applicant no longer ran the risk of being enrolled as a child soldier, as he was no longer a minor. However, there was still a real risk that the applicant would again be enrolled in the Rwandan army. Whilst such enrolment in itself would not constitute inhuman or degrading treatment, it could become such if it went along with unacceptable force or if it had the effect of putting the person concerned in an unbearable physical or psychological situation. In the case at hand the CALL found that the seriousness of the traumas that the applicant had been subjected to in the past had left such psychological marks that a new forced enrolment in the army would be psychologically unbearable for him and would constitute inhuman and degrading treatment.
Outcome:
The decision of the CGRS was overruled and the applicant was granted subsidiary protection.