Netherlands - Council of State, 8 December 2009, 200706464/1/V2
| Country of Decision: | Netherlands |
| Country of applicant: | Afghanistan |
| Court name: | Administrative Jurisdiction Division of the Council of State |
| Date of decision: | 08-12-2009 |
| Citation: | 200706464/1/V2 |
Keywords:
| Keywords |
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Persecution (acts of)
Description
"Human rights abuses or other serious harm, often, but not always, with a systematic or repetitive element. Per Article 9 of the Qualification Directive, acts of persecution for the purposes of refugee status must: (a) be acts sufficiently serious by their nature or repetition as to constitute a severe violation of basic human rights, in particular the rights from which derogation cannot be made under Article 15(2) of the ECHR; or (b) be an accumulation of various measures, including violations of human rights which is sufficiently severe as to affect an individual in a similar manner as mentioned in (a). This may, inter alia, take the form of: acts of physical or mental violence, including acts of sexual violence; legal, administrative, police and/or judicial measures which are in themselves discriminatory or which are implemented in a discriminatory manner; prosecution or punishment, which is disproportionate or discriminatory; denial of judicial redress resulting in a disproportionate or discriminatory punishment; prosecution or punishment for refusal to perform military service in a conflict, where performing military service would include crimes or acts falling under the exclusion clauses in Article 12(2). " |
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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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Subsequent application
Description
Where a person who has applied for refugee status in a Member State makes further representations or a subsequent application in the same Member State. Member States may apply a specific procedure involving a preliminary examination where a decision has been taken on the previous application or where a previous application has been withdrawn or abandoned. As with all aspects of the procedures directive, the same provisions will apply to applicants for subsidiary protection where a single procedure applies to both applications for asylum and subsidiary protection. |
Headnote:
Article 29(1), introductory paragraph and (b) of the Foreigners Act (2000) (which provides protection in the Netherlands against a potential breach of Article 3 of the European Convention on Human Rights) provides for the same protection as Article 15(c) of the Qualification Directive. The latter article therefore does not amend the law.
Facts:
This summary concerns an appeal by both the foreigner and the Minister against the judgment by the Court of Almelo of 4 September 2007, AWB 07/32074 and 07/32071. The Minister rejected the repeated asylum application by the foreigner. The appeal filed by the foreigner against this was upheld. The Minister and the Foreigner appealed against this judgment. Then, the Council of State told the parties that the case would not be heard until a response had been provided by the Court of Justice of the European Union to the references for a preliminary ruling in case no. 200702174/1 concerning the meaning of Article 15(c) of the Qualification Directive. In its judgment of 17 February 2009 in Case C-465/07, the Court of Justice of the European Union answered these questions.
Decision & reasoning:
The Minister appealed on the grounds that the summary proceedings judge had wrongly concluded that Article 15(c) of the Qualification Directive signified a modification of the law relevant to the foreigner. According to the Minister, Article 15(c) of the Qualification Directive falls within the scope of Article 29(1), introductory paragraph and (b) of the Foreigners Act (2000), and the summary proceedings judge wrongly concluded that the personal circumstances of the foreigner would support the conclusion that he was subject to a serious and individual threat within the meaning of Article 15(c) of the Qualification Directive.
As the Council of State earlier found in its judgment of 25 June 2009 in case no. 200900815/1/V2, it follows from the judgment by the Council of State of 25 May 2009 in case no. 200702174/2/V2 that Article 29(1), introductory paragraph and (b) of the Foreigners Act (2000) provides for the protection offered by Article 15(c) of the Qualification Directive, and this latter Article cannot be viewed as a modification of this law. The grounds of appeal thus succeeded, and the Minister's appeal was upheld.
Once the Council of State upheld the Minister's appeal, overturned the contested judgment, and was due to take the action the Court should have taken, the foreigner had no interest in an assessment of the grounds of appeal he cited against the contested judgment. The foreigner's appeal was therefore found to be inadmissible.
Outcome:
The Minister's appeal was upheld. The appeal of the foreigner was found to be inadmissible. The judgment of the Court was overturned. The foreigner's appeal to the Court was then dismissed.
Relevant International and European Legislation:
Cited National Legislation:
| Cited National Legislation |
| Netherlands - Vreemdelingenbesluit 2000 (Foreigners Act) - Art 29(1) |
Cited Cases:
| Cited Cases |
| CJEU - C-465/07 Meki Elgafaji, Noor Elgafaji v Staatssecretaris van Justitie |