France - CNDA, 17 December 2009, Mr. T., n°641626
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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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.” |
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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:
Vendetta constitutes a serious harm falling within the scope of subsidiary protection.
Facts:
The applicant, from Kosovo of Albanian origin, risked being subjected to a vendetta according to the Kanun rule in Kosovo following the murder committed by his uncle and despite the 13-year prison sentence his uncle received. His asylum application was rejected by the French Office for the Protection of Refugees and Stateless Persons (Ofpra). The applicant challenged this negative decision before the Cour Nationale du Droit d’Asile (National Asylum Court) (CNDA).
Decision & reasoning:
The Court considered that the acts from which the applicant suffered were not linked to any persecution ground listed in Article 1 A (2) of the 1951 Refugee Convention. This case does not fall within the scope of this Convention.
The Court considered that the applicant established that he risked being subject to a vendetta which constitutes a serious harm as defined under Article L.712-1 b) Ceseda [which transposes Article 15(b) of the Qualification Directive], without being able to avail himself of the protection of the authorities.
Outcome:
Subsidiary protection was granted to the applicant.
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 same reasoning was applied, for example, in the case of vendetta in Turkey (e.g.: CNDA, 19 juin 2009, M.T. n°631987/08012453).