3.1. Article 15(a) QD

 
Common analysis
Last updated: September 2020

As noted in the chapter Refugee status, some profiles of applicants from Syria may be at risk of death penalty or execution (e.g. 2.1. Persons perceived to be opposing the government, 2.2.2. Military deserters and defectors, 2.3. Persons with perceived links to ISIL). In such cases, there could be a nexus to a reason for persecution falling under the definition of a refugee, and those individuals would qualify for refugee status. In cases where there is no nexus to a Convention ground (for example, in case of offences related to drug trafficking), the need for subsidiary protection under Article 15(a) QD should be examined.

Under Article 15(a) QD, serious harm consists of the death penalty or execution:

 The death penalty is as such, and under any circumstances, considered as a serious harm under Article 15(a) QD. The sentence does not need to have already been imposed. The mere existence of a real risk that on return a death penalty may be imposed on the applicant could be considered sufficient to substantiate the need of subsidiary protection.

 As the addition of the term ‘execution’ suggests, Article 15(a) QD also encompasses the intentional killing of a person by non-State actors exercising some kind of authority. It may also include extrajudicial killings, but an element of intentional and formalised punishment needs to be present.

The death penalty is envisaged under the Syrian Penal Law and can be imposed for the following crimes: aggravated murder, military offenses, terrorism-related offenses, drug trafficking, treasonous acts, arson resulting in death, gang robbery resulting in death, as well as other offenses not resulting to death, such as subjecting a person to torture or barbaric treatment during commission of a gang-robbery; attempting a crime punishable by the death penalty; and being convicted for the second time for a felony punishable by forced labour for life [Actors, 2.2.3].

The acts of terrorism were broadly defined in the Counter-Terrorism Law No. 19, which was adopted by the Syrian government in 2012. The Counter-Terrorism Court was established to enforce the aforementioned law. The Counter-Terrorism Court is reported to impose harsh sentences, including 10 to 20 years of hard labour, or the death penalty [Actors, 2.2.2].

Military Field Courts were set up by Decree 25/2/1966 in order to try civilians and military personnel for ‘crimes committed during wartime or during military operations’. The Military Field Courts do not apply the Syrian Criminal Code in their rulings and the punishments they impose include life imprisonment and the death penalty. The President of Syria is responsible for approval of death sentences issued by the Military Field Courts, having also the possibility of reducing a sentence, replacing it with another penalty or cancelling the case [Actors, 2.2.2].

Various organisations and former detainees report that death penalties and executions were extensively implemented in Syria’s prisons. No official information regarding the death penalties imposed or the number of executions that have been carried out have been disclosed by the authorities of the GoS. An amnesty decree was issued by President Bashar al-Assad on 15 September 2019 reducing death penalty to life imprisonment although there is no available information regarding the implementation of the decree [Actors, 2.2.3].

In Kurdish-controlled areas, a legal code based on the ‘Social Contract’ is applied by the Kurdish authorities. According to Article 26 of the Social Contract, the death penalty has been abolished [Actors, 3.1.4].

Extremist groups such as HTS and ISIL have carried out public executions, beheadings and crucifixions for transgressing the moral codes of the Sharia law in areas under their control, killing hundreds of civilians. They also reportedly subjected women, girls, and minorities to illegal executions for breach of the imposed codes and for ‘dishonouring’ their families [Actors, 4.1.4, 6.4].

If there is a reasonable degree of likelihood of death penalty or execution, subsidiary protection under Article 15(a) QD shall be granted, unless the applicant is to be excluded in accordance with Article 17 QD.

 !  In some cases, the death penalty would have been imposed for a serious crime committed by the applicant, or for other acts falling within the exclusion grounds under Article 17 QD. Therefore, although the criteria of Article 15(a) QD would be met, exclusion considerations should be examined See the chapter Exclusion.


 

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