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WG Asylum-Immigration > Meetings > Berlin 2012 Workshop > Court Decisions on Art. 15 (c) Qualification Directive

Court Decisions on Art. 15 (c) Qualification Directive

Prof. Dr. Harald Dörig, Federal Administrative Court of Germany :

1) Art. 15 QD

a) The three protected types of serious harm

(a) death penalty or execution ;

(b) torture or inhuman or degrading treatment or punishment of an applicant in the country of origin ;

(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.

b) CJEU - Elgafaji - 17 February 2009 - C-465/07 - para 28, 32 ff :

Article 15(b) corresponds, in essence, to Article 3 of the ECHR. By contrast, Article 15(c) of the Directive is a provision, the content of which is different from that of Article 3 of the ECHR.

The harm defined in Article 15(c) covers a more general risk of harm.

c) ECHR - Sufi & Elmi/UK - 28 June 2011 - 8319/07 - para 226

The Court is not persuaded that Article 3 of the Convention, as interpreted in NA, does not offer comparable protection to that afforded under Art. 15(c) QD. In particular, the threshold set by both provisions may bet he same, in exceptional circumstances, in a situation of general violence of such intensity that any person being returned to the region in question would be at risk simply on account of their presence there.

d) Differences between Art. 3 ECHR and Art 15 (c) QD remain :

  • Art. 15 c QD covers also dangers to life and bodily harm which constitute no unhumane treatment in the sense of Art. 3 ECHR. Not every killing is an unhumane treatment.
  • Art. 15 c QD is restricted to dangers in an armed conflict, Art. 3 ECHR is not.
  • The protection of Art. 15 c QD is afforded only to civilians, Art. 3 ECHR is not.

2) Requirements of Art. 15 (c) QD

a) International or internal armed conflict

This is a requirement of the QD. The Courts of most EU states except for the UK and the Netherlands recognize this (Belgium, Bulgaria, Czech, France, Germany, Sweden …). They interpret this requirement in the light of International Humanitarian Law (IHL).

Judgement of the German FAC dated 24 June 2008 :

Important : The 1949 Geneva Conventions on Humanitarian Law and the Protocol Additional II from 1977. This means that there exists no internal armed conflict, if the conflict doesn’t exceed the quality of internal disturbances and tensions (Art. 1 (2) Protocol II), such as riots and isolated and sporadic acts of violence (f.ex attacks against Christians in Nigeria or Egypt).

There exists an internal armed conflict, if the provisions of Art. 1 (1) Protocol II are fullfilled (conflict between organized armed groups who carry out sustained and concerted military operations).

But the provisions of International Humanitarian Law only mark the lower and the upper end of the scale for the interpretation of the civil war provision of Art. 15 (c). Not all criteria of Art. 1 (1) Protocol II have to be fullfilled.

But the conflict must demonstrate a certain degree of intensity and constancy. Typical situations are civil war conflicts and guerilla fighting. The decision in the concrete case also depends on the protection needs of people facing an armed conflict in their home country.

Judgement of Supreme Court of Czech Republik of 13 March 2009

An internal armed conflict within the meaning of international humanitarian law

exists at any rate if the conflict meets the criteria of Art. 1(1) of Additional

Protocol II of 1977. Conversely, it does not exist if the exclusionary conditions of

Art. 1(2) of Additional Protocol II of 1977 are present. Conflicts falling in between these two boundaries fall within the ambit of Art. 15(c) QD if they satisfy the so-called Tadić criteria : protracted armed violence and organization of armed groups

Sweden and Belgium

In the UNHCR-Hearing of 17 October 2011 in Brussels ("Safe at Last") the representatives of Sweden and Belgium said, that IHL rules are used to characterize an armed conflict in their countries.

Judgement of the German FAC dated 14 July 2009 :

The conflict need not be in the whole territory of the country, it is enough if it prevails in the home region of the applicant.

Judgement of UK Court of Appeal dated 24 June 2009

para 34-36 : The phrase "situations of international or internal armed conflict" in Art.15(c) QD has an autonomous meaning broad enough to capture any situation of indiscriminate violence, whether caused by one or more armed factions or by a state, which reaches the level described by the CJEU in Elgafaji.

If the overriding purpose of article 15(c) is to give temporary refuge to people whose safety is placed in serious jeopardy by indiscriminate violence, it cannot matter whether the source of the violence is two or more warring or a single entity or faction.

Judgement of the German FAC dated 27 April 2010

para 22-24 : This Court has taken into account the new judicature of the Court of Appeal for England and Wales. But it sees no reason therein to diverge from its previous approach to interpret the concept of an internal armed conflict in the light of IHL. The English approach interprets the phrase of an armed conflict entirely in isolation from ist meaning in IHL, depriving it of any contour and – contrary to the letter of the provision – making it virtually superfluous.

But there is a limitation to IHL interpretation : It runs up against its limits where it is opposed by the purpose of granting protection to civilians who are threatened with indiscriminate violence in armed conflicts. So the parties to the conflict need not have such a high level of organisation as is necessary to satisfy the requirements under the Geneva Conventions of 1949 and for the intervention of the International Red Cross.

It may also suffice that the parties to the conflict are able to carry out sustained and concerted acts of combat of such intensity and constancy that the civilian population is thereby typically also caused to suffer significantly. Equivalent considerations may well also apply to the requirement that the party to the conflict opposing the state’s armed forces must exercise effective control over a portion of the state’s territory.

b) Indiscriminate Violence

CJEU - Elgafaji - 17 February 2009 - C-465/07 - para 34 :

Indiscriminate violence " implies that it may extend to people irrespective of their personal circumstances".

Judgement of UK Court of Appeal dated 24 June 2009

para 25 and 27 : Civilians face real risks to their life or personal safety without anything to render them a particular target. Acts of indiscriminate violence are f.ex the placing of car bombs in market places or snipers firing methodically at people in the streets.

Judgement of AIT of UK dated 19 October 2009 - GS Afghanistan CG [2009] UKAIT 00044

para 62 : It would be indiscriminate violence if a suicide bomber were to attempt to assassinate one individual in a crowded market place. Similarly, the bombing of insurgents who were sheltering in a school, or other area known to be populated by civilians, would be indiscriminate. On the other hand, a targeted attack on opposition fighters, which unexpectedly caught individuals in the crossfire would not.

Judgement of the German FAC dated 24 June 2008 :

para 37 ff : The characteristics of "indiscriminate violence" are fullfilled in any situation where the acts of violence contradict the rules of IHL, such as :

Violence that does not discriminate between civilian and military targets,

Attacks that are not directed against the opposing party in the conflict, but against

the civilian population,

Acts of violence in which the means and methods disproportionately strike the

civilian population (such as chemical weapons).

Judgement of the German Federal Administrative Court dated 27 April 2010

para 34 : Indiscriminate violence is not restricted to acts which violate the rules of international humanitarian law, but also includes other acts of violence that are not directed against specific persons or groups of persons, but are perpetrated non-selectively, and extend to civilians irrespective of their personal circumstances.

Judgement of French Conseil d’ Etat (OFPRA v. Baskarathas) dated 3 July 2009

A Sri Lankan national was granted protection unter Art. 15 (c) QD. In a very short decision the Conseil d’ Etat noted that the different parties to the conflict were all guilty of grave breaches of IHL towards civilians. A threat to a person’s life or person need not arise from actions of a combatant to the armed conflict. The threat to life can be the product of the breakdown of law as a result of the armed conflict. And the armed conflict must not actually go on in the precise area where the applicant comes from.

Judgement of AIT of UK dated 19 October 2009 - GS Afghanistan CG [2009] UKAIT 00044

para 65 : Indiscriminate violence does not need to be caused by one or more armed factions or the state.

Criminal acts can be included in the scope of indiscriminate violence, if the armed conflict has caused or furthered that kind of criminality.

c) Serious and individual threat

CJEU - Elgafaji - 17 February 2009 - C-465/07 -

para 43 : The applicant needs not be specifically targeted by reason of factors particular to his personal circumstances.

Such a threat can exceptionally be considered to be established where the degree of indiscriminate violence characterising the armed conflict taking place reaches such a high level that a civilian, returned to the relevant region, would, solely on account of his presence on the territory, face a real risk of being subject to that threat.

Judgement of UK Court of Appeal dated 23 April 2010

para 94 f : In Mogadishu/Somalia there is such a high level of violence that a returnee would as a rule fulfill the criteria of a serious and individual threat just by his presence on the territory - unless he is able to obtain protection because of close connections with powerful people in Mogadishu.

Judgement of the German FAC dated 27 April 2010

para 33 : In any case, findings must be made as to the level of indiscriminate violence in the territory in question. If there are no personal circumstances increasing risk, an especially high level of indiscriminate violence is necessary ; if personal circumstances increasing risk are present, a lower level of indiscriminate violence will suffice.

These factors that increase risk primarily include those personal circumstances that make the applicant appear more severely affected by general, non-selective violence, for example because he is forced by reason of his profession – e.g., as a physician or journalist – to spend time near the source of danger. But in this Court’s opinion, it may also include personal circumstances by reason of which the applicant, as a civilian, is additionally subject to the danger of selective acts of violence – for example, because of his religious or ethnic affiliation – to the extent that a recognition of refugee status does not come under consideration on that basis anyway.

But even in the case of personal circumstances that increase danger, a high level of indiscriminate violence or a high density of danger to the civilian population must be found in the region in question.

Judgement of the German FAC dated 27 April 2010

para 33 : How to assess the high level of indiscriminate violence ?

The mere presence of an armed conflict and the finding of a factor increasing risk in the person of the applicant is not sufficient for this purpose. What is necessary, rather, is at least an approximate quantitative determination of the total number of civilians living in the area concerned, on the one hand, and on the other hand, the number of acts of indiscriminate violence committed by the parties to the conflict against the life or person of civilians in this region, as well as a general assessment of the number of victims and the severity of the casualties (deaths and injuries) among the civilian population.

Judgement of UK Upper Tribunal in HM & Others dated

20 September 2010

para 73 ff : The Tribunal takes an "inclusive approach". That means that all sources of violence have to be assessed as far as they are a result of the armed conflict. This includes violence against combatants. But there has to be a sufficient nexus between violence and armed conflict. This nexus may exist between criminal violence and the conflict (f.ex because of a breakdown of legal order and security), but it must not (para 79 f.).

Judgement of the German FAC dated 17 November 2011

para 23 : The assessment of violence in the country of origin has not only quantitative, but also qualitative elements. It may not be reduced to a mathematical calculation of probability. But it has to start with it. After that a qualitative assessment of the situation as a whole has to be made. This general assessment has to include the medical support in the relevant region. The quality and accessibility of the medical care can be of great influence on the severity and durability of the injuries.

Metrics for the Severity of an Armed Conflict

H. Lambert/T. Farell suggest four metrics that may be applied in determining the severity of an armed conflict and the accordant threat to civilians :

battle deaths,
civilian casualties ;
population displacement ; and
state failure.

d) Facilitated Standard of Proof

Text of Art. 4 (4) QD :

The fact that an applicant has already been subject to persecution or serious harm or to direct threats of such persecution or such harm, is a serious indication of the applicant’s well-founded fear of persecution or real risk of suffering serious harm, unless there are good reasons to consider that such persecution or serious harm will not be repeated.

Judgement of the German FAC dated 27 April 2010 para 27 ff : Art. 4 (4) contains a facilitated standard of proof, in the form of a refutable statutory presumption which applies also to subsidiary protection. In so far it presupposes that the applicant has already suffered or been directly threatened with serious harm in his or her country of origin (prior harm).The facilitated standard of proof requires an internal nexus between the serious harm suffered or directly threatened prior to emigration, and the feared future harm (such harm).

para 31 : The presumption of being threatened again with such persecution or harm, which underlies this provision, is founded on the presumption that a repeat of persecution or harm – with the initial situation remaining the same – is strongly implied for reasons of fact. Therefore one must review and establish in each individual case the particular factual circumstances of harm to which the presumptive effect of article 4 (4) of the Directive extends. And in such a case it does not seem impossible that, for example, a suffered encroachment on an individual’s physical person under article 15 (b) of the Directive by one of the parties to an armed conflict that arose later could also be viewed as a serious indication of a personal circumstance increasing danger within the meaning of article 15 (c) of the Directive, of such a nature that even when there is not an extremely high level of indiscriminate violence in a situation of armed conflict, there could be reason to assume a significant individual threat to life or limb for the civilian concerned.

e) No Possibility of Internal Protection

Subsidiary protection is not granted if the applicant can reasonably be expected to stay in another part of his country of origin (Art. 8 QD).

Criteria for an acceptable relocation area in Art. 8 (2) QD : "Member States shall at the time of taking the decision on the application have regard to the general circumstances prevailing in that part of the country and to the personal circumstances of the applicant."

f) Summary : The Requirements of Art. 15 (c) QD

- International or internal armed conflict
Indiscriminate Violence
Serious and individual threat
No Possibility of Internal Protection