Slovenia - The Supreme Court of Republic of Slovenia, I Up 291/2014, 10 December 2014
| Country of Decision: | Slovenia |
| Country of applicant: | Afghanistan |
| Court name: | The Supreme Court of the Republic of Slovenia |
| Date of decision: | 10-12-2014 |
| Citation: | I Up 291/2014 |
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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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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Internal protection
Description
Where in a part of the country of origin there is no well-founded fear of being persecuted or no real risk of suffering serious harm and the applicant can reasonably be expected to stay in that part of the country. |
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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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Protection
Description
A concept that encompasses all activities aimed at obtaining full respect for the rights of the individual in accordance with the letter and spirit of human rights, refugee and international humanitarian law. According to Article 2(a) of the Qualification Directive, international protection meansrefugee and subsidiary protection status as defined in (d) and (f). According to Recital 19 of the Qualification Directive “Protection can be provided not only by the State but also by parties or organisations, including international organisations, meeting the conditions of this Directive, which control a region or a larger area within the territory of the State”. According to Annex II of the Asylum Procedures Directive, in the context of safe countries of origin, protection may be provided against persecution or mistreatment by: “(a) the relevant laws and regulations of the country and the manner in which they are applied; (b) observance of the rights and freedoms laid down in the ECHR and/or the International Covenant for Civil and Political Rights and/or the Convention against Torture, in particular the rights from which derogation cannot be made under Article 15(2) of the said European Convention; (c) respect of the non-refoulement principle according to the Geneva Convention; (d) provision for a system of effective remedies against violations of these rights and freedoms. |
Headnote:
The internal protection alternative is not only possible when the security situation in the proposed area is so poor that the threshold of serious harm would be met, but also when the applicant cannot reasonably be expected to settle down in a designated area. In order to establish the latter it is not enough to hypothetically assume that the applicant can arrange the housing by himself and take care of his social and economic security or that as a young man he could find work and survive. It is necessary to determine whether in the place of IPA, economic and social existence is assured at least to the extent that the threshold for a violation of Article 3 of the Convention is not met.
Facts:
The application for prolongation of subsidiary protection of an Afghan applicant was rejected because the applicant now turned 18 and the Asylum authority considered that the security situation in his home province Logar as well as in Kabul was now such that he could be returned there. In assessing that Kabul is an appropriate internal protection alternative (IPA), the Asylum authority relied on existing reports which stated that despite the applicants not having professional qualifications and relatives in Kabul, they would have a greater chance to find work, housing and build social networks, if they were young, healthy, single men. The assessment of IPA mainly related to the issue of security in terms of threat to the applicant's life due to indiscriminate violence in situations of internal armed conflict. The Asylum authority did not deem it necessary to examine whether the country of origin would guarantee economic and social rights to the adult applicants, because the adults are expected to be able to take care of themselves.
The Administrative court stated that the security situation in Logar province is still unsafe for the applicant, however the internal protection in Kabul is possible and rejected the appeal. The Administrative court only focused its assessment on the security in Kabul in terms of the threat to the applicant’s life due to indiscriminate violence. The Administrative court was of the opinion that socio-economic conditions could be part of the IPA assessment only in exceptional circumstances: "The applicant however, cannot rely on the poor living conditions in Kabul (poor sanitation, living in tents, huge unemployment and so forth), because they do not present serious harm within the meaning of Article 15 of Qualification Directive." “Humanitarian and socio-economic conditions are exceptionally taken into account, but only in those cases where human life is in danger for reasons such as the spread of infectious disease, starvation, and the like.”
Decision & reasoning:
The Supreme Court ruled that a hypothetical presumption that the applicant can arrange housing by himself and take care of his social and economic security or that as a young man he could find work and survive, is not sufficient for the application of IPA. It is necessary to determine whether in the place of IPA, economic and social existence is assured at least to the extent that the threshold for a violation of Article 3 of the Convention is not met. The Supreme Court explicitly mentioned the two criteria needed to assess the application of IPA: "The so-called “protection test” and the “reasonableness test” of settling down in the safe area of a country, must be carried out by the court with due care, and that includes finding a safe way to the IPA, a real expectation that the applicant will be accepted in the area of the IPA and that they can settle down or that they will not be forced to leave this place due to inhumane or degrading conditions; and these include (1) safety and security, (2) respect for basic human rights, and (3) possibility of economic survival, taking into account personal circumstances."
Regarding the situation in refugee camps or settlements of internally displaced persons (IDPs), the Supreme Court stated that “the applicant shall be guaranteed an individualised share of assets to meet their most basic needs such as food, sanitation, shelter, taking into account their personal circumstances. It is therefore necessary to determine whether the applicant has a real chance of economic survival, taking into account their personal circumstances.”
Outcome:
The Supreme court quashed the judgement of the Administrative court and ordered a new procedure.
Observations/comments:
For an assessment of the application of IPA in Slovenia please see, Developments in the assessment of the “reasonableness test” within the Internal Protection Alternative concept in Slovenia, G. Matevžič
Relevant International and European Legislation:
Cited National Legislation:
Cited Cases:
Other sources:
ECRE, Actors of Protection and the Application of the Internal Protection Alternative, 2014.
Kay Hailbronner, EU Immigration and Asylum Law – commentary on EU Regulations and Directives