France - Council of State, 4 February 2011, Ofpra vs. Mr . A., n°338365
Keywords:
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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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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:
The Court must inquire into the circumstances which establish a risk of inhuman or degrading treatment fulfilling the requirements of subsidiary protection.
Facts:
The first asylum application of Mr. A., a Sri Lankan of Tamil origin, was rejected by the French Office for the Protection of Refugees and Stateless Persons (Ofpra) and by the National Asylum Court/Cour nationale du droit d’asile CRR/CNDA. After a first subsequent application which was declared inadmissible by both instances, his second subsequent application was rejected by the Ofpra. On appeal, the CNDA quashed the Ofpra decision and granted him subsidiary protection. The Ofpra requests the Council of State to quash the CNDA decision.
Decision & reasoning:
The Council of State recalled the provisions of Article L.712-1 Ceseda which relates to subsidiary protection, in particular b) which relates to torture or inhuman and degrading treatment or punishment. [see below]
The Council of State found that the CNDA made a legal error by considering that the applicant would face, in his country of origin, a risk of inhuman or degrading treatment within the meaning of Article L.712-1 Ceseda without inquiring, as this provision imposes, into the circumstances according to which the CNDA considered that this risk was established.
Outcome:
The decision of the CNDA granting subsidiary protection was quashed. The case was referred to the CNDA.
Observations/comments:
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”.
The Council of State gave a similar ruling in another recent case (CE, 24 août 2011, Ofpra c/ M.A., n°334074).
Relevant International and European Legislation:
Cited National Legislation:
| Cited National Legislation |
| France - Ceseda (Code of the Entry and Stay of Foreigners and Asylum Law) - Art L.712-1(b) |