France - CNDA, 24 April 2009, Mr. G., n°625816
| Country of Decision: | France |
| Country of applicant: | Russia Russia (Chechnya) , |
| Court name: | National Asylum Court / Cour nationale du droit d’asile (CNDA) |
| Date of decision: | 24-04-2009 |
| Citation: | CNDA, 24 avril 2009, M.G., n° 625816 |
| Additional citation: | Cour nationale du droit d’asile, 24 avril 2009, M.G., n° 625816 |
Keywords:
| Keywords |
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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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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. |
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Internal armed conflict
Description
“A conflict in which government forces are fighting with armed insurgents, or armed groups are fighting amongst themselves.” |
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International armed conflict
Description
“A war involving two or more states, regardless of whether a declaration of war has been made or whether the parties recognize that there is a state of war.” |
Headnote:
The situation which currently prevails in the Republic of Chechnya does not amount to generalised violence resulting from a situation of internal or international armed conflict.
Facts:
The applicant, from the Russian Federation of Chechen origin, claimed that he was persecuted because his uncle belonged to the Aslan Maskhadov ‘s presidential guard since 1996. He left his country of origin in 2007. The French Office for the Protection of Refugees and Stateless Persons (Ofpra) rejected his asylum application. He lodged an appeal against this negative decision before the Cour Nationale du Droit d’Asile (National Asylum Court) (CNDA).
Decision & reasoning:
The Court examined firstly whether the applicant qualified for refugee status according to the 1951 Refugee Convention. It however considered that the alleged persecution was not established and that the fears were unfounded.
Furthermore, the Court examined the asylum application within the context which currently prevailed in the Russian Federation, in particular in the Republic of Chechnya. The Court highlighted the stabilisation and the improvement of the security situation in the Republic of Chechnya since the beginning of 2007, as well as the weakening of the rebel guerilla war which was at the time very fragmented, residual and restricted to a few mountainous areas. The Court considered that this situation did not amount to generalized violence resulting from a situation of internal or international armed conflict as under Article L.712-1 c) Ceseda [which transposes Article 15(c) of the Qualification Directive].
Finally the Court considered that this case did not fall within under Article L.712-1 a) and b) Ceseda [which transpose Article 15(a) and (b) of the Qualification Directive].
Outcome:
The claim was rejected.
Observations/comments:
Article L.712-1 Ceseda [which transposes Article 15 of the QD] 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”.
Under French legislation, the threat should thus not only be “serious and individual” (as in the Qualification Directive) but also “direct”. Also, French legislation refers to “generalized” violence rather than “indiscriminate” violence.