3.2. Article 15(b) 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 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:

✓ an intentional act

 that inflicts severe pain or suffering, whether physical or mental

 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.

► ‘Inhuman’ refers to treatment or punishment which deliberately causes intense mental or physical suffering (which does not reach the threshold of torture).

► ‘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:

 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.[29]

However, there are reports that in parts of the country, the actors in the conflict have deliberately targeted civilian infrastructure, including healthcare facilities [see for example Damascus, 3.5; Security 2020, 1.6.1.2, 2.1.3, 2.2.3.7, etc.]. In such cases, the application of Article 15(b) QD may be considered where refugee status has not been found to apply.

 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.

Prison and detention centres have been reported as harsh and, in many instances, life-threatening, due to food shortages, gross overcrowding, physical and psychological abuse, and inadequate sanitary conditions and medical care. Reports mention that prisoners and detainees face the risk of ill-treatment and even execution, while deaths in custody resulting from torture or other ill-treatment have been documented. Various methods of torture have been reported, including physical violence, sexual torture, psychological torture, health neglect and detention conditions, forced labour, torture in military hospitals and separation. Children are not separated from adults and are held in the same prisons, suffering from the same types of torture [Actors, 2.2.6, 2.3.3, 2.4].

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.

The implications of leaving Syria should also be given due consideration.

 !  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 Exclusion.


 

[29] CJEU, M’Bodj, paras. 35-36. Recent jurisprudence of the CJEU, furthermore, addresses the case of an applicant who has been tortured by the authorities of his country of origin and who no longer faces a risk of being tortured if returned to that country, but whose physical and psychological health could, if so returned, seriously deteriorate, leading to a serious risk of him committing suicide on account of the trauma resulting from the torture. In this case, the CJEU considers that Article 15(b) QD is applicable if there is a real risk of the applicant being intentionally deprived, in his or her country of origin, of appropriate care for the physical and mental after-effects of that torture (CJEU, MP v Secretary of State for the Home Department, C-353/16, judgment of 24 April 2018, para. 59). [back to text]
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