Article 15(b) QD

Torture or inhuman or degrading treatment or punishment 

GUIDANCE NOTE
Last updated: June 2019

In the cases of applicants for whom torture or inhuman or degrading treatment or punishment may be a real risk, there would often be a nexus to a reason for persecution under the definition of a refugee, and such individuals would, therefore, qualify for refugee status. However, with reference to cases where there is no nexus to a Convention ground and the applicant would not qualify for refugee status, the need for subsidiary protection under Article 15(b) QD should be examined.

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.[14]
 
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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. 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: Special 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.
 
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.
 
 
Please note that exclusion considerations could be relevant.


 

[14] CJEU, Mohamed M'Bodj v État belge, C-542/13, judgment of 18 December 2014, paras. 35-36. See also CJEU, MP v Secretary of State for the Home Department, C-353/16, judgment of 24 April 2018, para. 57, 59 (MP).  [back to text]
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