France - CNDA, 2 November 2011, Mr. B., n°10011958

Facts:

The applicant, of Serbian nationality, originated from Mitrovica in Kosovo. He had to leave Kosovo in 1999 due to problems encountered because of his Roma origin. Together with his family, he settled in Serbia where they faced hostility from Serbs and Albanians who threatened them. He fled after several incidents of physical abuse.

The French Office for the Protection of Refugees and Stateless Persons (Ofpra) rejected his asylum application. He challenged this decision before the National Asylum Court (Cour nationale du droit d’asile, CNDA).
 

Decision & reasoning:

The CNDA firstly stated that, according to the 1951 Refugee Convention, refugee status could only be granted to a person who was forced to give up his claim to the protection of the countries of his/her nationality. The CNDA declared that the same principles applied regarding subsidiary protection. The Court therefore examined the fears alleged by the applicant towards Serbia and then towards Kosovo.

The CNDA considered on the first hand that the explanations given by the applicant did not prove that the facts from which he claimed to be a victim in Serbia, the country of his nationality, would amount to persecution for reason of his ethnic origin or any other ground falling under the 1951 Refugee Convention. Consequently, he could not be granted refugee status.

The CNDA considered, however, that the facts alleged could prove that the applicant would currently face a risk of treatment contrary to human dignity in case of return to Serbia.

Secondly, the CNDA considered that the applicant originated from Mitrovica, in Kosovo, and that he would be entitled to the nationality of this country. The Court considered that no element from the case file proved that the applicant would currently face hostility from the Kosovan population and authorities amounting to persecution in case of return to Kosovo.

The CNDA considered, however, that the current reception conditions offered by the Kosovan authorities to Roma populations awaiting relocation did not sufficiently guarantee living conditions which were compatible with human dignity within the meaning of Article L.712-1 b) Ceseda [which transposes Article 15b) of the Qualification Directive].

Outcome:

The applicant was granted subsidiary protection.

Observations/comments:

The provisions of Article L.712-1.b) Ceseda (see below) and of Article 15.b) the Qualification Directive do not include the terms « treatment contrary to human dignity » or « living conditions compatible with human dignity » used by the CNDA in the present decision to qualify the treatment which, according to the Court, justified the granting of subsidiary protection.

Article 15.b) of the Qualification Directive is transposed in French legislation by Article L.712-1.b) Ceseda.

Article L.712.1 Ceseda reads [unofficial translation]:

“Subject to the provisions of Article L. 712.2 [exclusion], subsidiary protection is granted to any person who does not qualify for refugee status under the criteria defined in Article L. 711.1 and who establishes that she/he faces one of the following serious threats in her/his country:
a) death penalty;
b) torture or inhuman or degrading treatment or punishment;
c) serious, direct and individual threat to a civilian’s life or person by reason of generalised violence resulting from a situation of internal or international armed conflict”.