Italy - Court of Bologna, 19 March 2013, No. RG 17735/2012
Keywords:
| Keywords |
|
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). |
|
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:
Granting subsidiary protection is not dependent on the personal situation of the Applicant and relates to a generalised situation of serious risk in the country of origin, a situation that could commence even after the Applicant has left his country of origin. In the case in point, the indiscriminate violence throughout Nigeria fulfils the conditions required for granting subsidiary protection.
Facts:
The Applicant, a Nigerian citizen, had submitted a request for international protection stating that his life was in danger following the murder of his father and two brothers in Nigeria by members of a military group, the Movement for the Emancipation of the Niger Delta (MEND).
The request was rejected.
This decision was appealed.
Decision & reasoning:
Citing the decision of 17.02.2009 of the Court of Justice (case C. 465/07) concerning subsidiary protection and acting on the basis of information about the conflict in Nigeria, the Court ruled that the situation in Nigeria was one of ‘indiscriminate violence’, which fulfilled the criteria for granting subsidiary protection and supported the Applicant’s case that he would be in danger if he returned to his country.
In the Court’s view, contrary to the recent ruling by the Appeal Court in Bologna (judgment No 56 V.G. of 9.07.2012), the granting of subsidiary protection is independent of the personal circumstances of the Applicant and relates to the generalised situation of serious risk in the country of origin, a situation that could commence even after an Applicant leaves their country of origin.
Outcome:
Appeal upheld – granting of subsidiary protection.
Relevant International and European Legislation:
Cited National Legislation:
| Cited National Legislation |
| Italy - Legislative Decree No. 251/2007 |
| Italy - Legislative Decree No. 25 of 28 January 2008 |
Cited Cases:
| Cited Cases |
| CJEU - C-465/07 Meki Elgafaji, Noor Elgafaji v Staatssecretaris van Justitie |
| Italy - Court of Cassation, 21 October 2008, RG 2540/2006 |