Elgafagi -v- Staatssecretaris van Justitie, the Netherlands European Court of Justice:Judgment was given by the Grand Chamber of the court on February 17th, 2009.
Judgment
The court was asked by the Dutch Council of State for an interpretation of the EC directive on subsidiary protection, specifically article 15 (c) in conjunction with article 2 (e). It found that they must be interpreted as meaning that a person seeking subsidiary protection does not have to adduce evidence that he or she is personally targeted due to his or her personal circumstances; a threat justifying subsidiary protection can exceptionally be considered to exist where there is such a high level of indiscriminate violence that a civilian returning to the country or region faces a real risk of being so threatened.
Background
The case concerned an Iraqi couple, where the husband was a Shia Muslim and his wife a Sunni. He worked for a security company providing security for transport between Baghdad airport and the “Green Zone”. Mr Elgafaji’s uncle, who worked for the same firm, had been killed by a militia and his death certificate stated he was killed by a terrorist act.
Shortly afterwards, a letter threatening “death to collaborators” was fixed to Mr Elgafajis door. He and his wife sought temporary residence permits in the Netherlands and were refused.
The immigration authority, the Staatssecretaris van Justitie, stated that they had not established a real risk of serious and individual threat if they were returned.
They appealed to the local court in the Hague, which found that, because of the existence of armed conflict in their country of origin, provided for in article 15 (c) of the directive, they did not need to establish a high level of individual threat.
The Minister appealed to the Council of State, which referred the matter to the European Court of Justice, asking it to state whether article 15 (c) should be interpreted only as offering protection in a situation where article 3 of the European Convention on Human Rights also has a bearing, or did it offer supplementary protection; if article 15 (c) does offer supplementary protection, what are the criteria for determining whether a person runs a real risk of serious and individual threat by reason of indiscriminate violence.
Decision
The court said it was necessary to compare the three types of “serious harm” defined in article 15 of the directive. “Death penalty”, “execution” and “torture or inhuman or degrading treatment” are used in article 15 (a) and (b), and refer to situations where the applicant is exposed to a particular type of harm.
Article 15 (c) defines harm as consisting of a “a serious and individual threat to life or person”, and covered a more general risk, rather than a specific act of violence. Furthermore, that threat is inherent in a general situation of “international or internal armed conflict”, and the violence is described as “indiscriminate”.
Thus the word “individual” must be understood as covering civilians irrespective of their identity, where the degree of indiscriminate violence is such that a person returning to that country or region would, on account of his or her presence in it, face a real risk of the threat referred to in article 15 (c) of the directive, the court said.
This does not mean that the objective finding alone of a risk linked to the general situation in a country would be sufficient to mean a person requires protection, it allows for an exceptional situation where the degree of risk was so high as to mean the person would individually be at risk.
The court said that this must be read along with article 15 (a) and (b), referring to individual threats, in a manner coherent with them.
“The more the applicant is able to show that he is specifically affected by reason of factors particular to his personal circumstances, the lower the level of indiscriminate violence required for him to be eligible for subsidiary protection,” it said.
It added that the geographical scope of the indiscriminate violence and the actual destination of the applicant, and the existence, if any, of a serious indication of real risk, also should be taken into account.
In conclusion, it answered the questions posed by the Dutch Council of State by stating that the existence of a serious and individual threat to the life or person of an applicant was not subject to the condition that the applicant adduce evidence that he was specifically targeted; the existence of such a threat can exceptionally be considered to be established where the degree of indiscriminate violence, as assessed by the competent authority where the application was being heard, reached such a high level that a civilian returning to that country or region would face a real risk of being subject to that threat.
The full judgment is available on http://curia.europa.eu.