3.2. Article 15(b) QD

COMMON ANALYSIS
Last updated: June 2019

As noted in the chapter on Refugee status, some profiles of applicants from Iraq may be at risk of torture or inhuman or degrading treatment or punishment. In such cases, there would often be a nexus to a reason for persecution falling under the definition of a refugee, and those individuals would qualify for refugee status. However, with reference to cases where there is no nexus to a Convention ground, the need for subsidiary protection under Article 15(b) QD should be examined.

Under Article 15(b) QD, serious harm consists of torture or inhuman or degrading treatment or punishment of an applicant in the country of origin.

Article 15(b) QD corresponds in general to Article 3 of the European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR). The jurisprudence of the European Court of Human Rights (ECtHR), therefore, provides relevant guidance in order to assess whether a treatment may qualify under Article 15(b) QD.

Torture is an aggravated and deliberate form of cruel, inhuman or degrading treatment to which a special stigma is attached.

According to relevant international instruments, such as the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT), torture is understood as:

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an intentional act
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that inflicts severe pain or suffering, whether physical or mental
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for such purposes as obtaining from the person subjected to torture or from a third person information or a confession, punishing the former for an act he or she or a third person has committed or is suspected of having committed, or intimidating or coercing him or her or a third person, or for any reason based on discrimination of any kind.

The distinction between torture and inhuman or degrading treatment or punishment is more a difference of degree than of nature. These terms cover a wide range of ill-treatment that reach a certain level of severity.

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Inhuman: refers to treatment or punishment which deliberately causes intense mental or physical suffering (which does not reach the threshold of torture).
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 Degrading: refers to treatment or punishment which arouses in the victim feelings of fear, anguish and inferiority capable of humiliating or debasing them.

The assessment whether a treatment or punishment is inhuman or degrading further implies a subjective consideration by the person who suffers such treatment or punishment. No specific purpose on the part of the perpetrator (e.g. obtaining information or a confession, punishing, intimidating) is required in this regard.

When examining the need for protection under Article 15(b) QD, the following considerations should be taken into account:

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Healthcare unavailability and socio-economic conditions: It is important to note that serious harm must take the form of conduct on the part of a third party (Article 6 QD). In themselves, the general unavailability of healthcare, education or other socio-economic elements (e.g. situation of IDPs, difficulties in finding livelihood opportunities, housing) are not considered to fall within the scope of inhuman or degrading treatment under Article 15(b) QD, unless there is intentional conduct on the part of a third party, in particular the intentional deprivation of the applicant of appropriate healthcare.[27]
 
 
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Criminal violence: Criminal networks in Iraq have been exploiting children for drug trafficking and dealing purposes and migrants for forced labour. Actors such as PMU and tribes are also reported to engage in criminality [Targeting, 3.1.2; Security situation 2019, 1.3.4, 1.4.2.2, 1.4.3, 2.8]. Criminal violence is usually motivated by financial gain and power struggle. Where there is no nexus to a reason for persecution under the refugee definition, the risk of crimes, such as killing, armed robbery, kidnapping, destruction of property, extortion, forced labour, child recruitment, trafficking for sexual exploitation, etc. may qualify under Article 15(b) QD.
 
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Arbitrary arrests, illegal detention and prison conditions: pecial attention should be paid to the phenomena of arbitrary arrests and illegal detention, as well as to prison conditions. When assessing the conditions of detention, the following elements can, for example, be taken into consideration (cumulatively): number of detained persons in a limited space, adequacy of sanitation facilities, heating, lighting, sleeping arrangements, food, recreation or contact with the outside world.
 
Reports mention that there are arbitrary arrests, prolonged detention, including in secret detention facilities, and widespread torture, especially of terrorism suspects. Detention facilities have been described by UNAMI as seriously overcrowded and with poor infrastructure, including the facilities for juveniles; and children are not always separated from adult detainees. Torture is reported to remain a widespread practice in police detention, interrogation cells, and in prisons. Detained ISIL suspects have been subjected to treatment such as electrocution, solitary confinement, and beatings by investigators. There were reports of deaths in custody following torture or other ill-treatment. International human rights groups documented a wide range of torture and abuses in detention facilities run by the Ministry of Interior and, to a lesser degree, in facilities of the Ministry of Defence and in facilities run by the KRG. In KRI, the access of local and international organisations to detention facilities is also severely limited, rendering monitoring of the situation almost impossible [Targeting, 1.18; Actors of protection, 6.5.3; 6.5.4].
 
Furthermore, it can be assessed that in cases where the prosecution or punishment is grossly unfair or disproportionate, or where subjecting a person to prison conditions which are not compatible with respect for human dignity, a situation of serious harm under Article 15(b) QD can occur. Where there is no nexus to a reason for persecution, such treatment may qualify under Article 15(b) QD.
 

In some cases, those at risk of torture or inhuman or degrading treatment or punishment (for example, because of mistreatment in prisons) may also have committed or contributed to excludable acts as defined in Article 17 QD. Therefore, although the criteria of Article 15(b) QD would be met, exclusion considerations should be examined (see the chapter on Exclusion below).


 

[27] CJEU, M'Bodj, paras. 35-36. See also CJEU, MP, paras. 57, 59. [back to text]

 

 

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