{"id":2887,"date":"2023-11-29T18:37:39","date_gmt":"2023-11-29T17:37:39","guid":{"rendered":"https:\/\/johan-callewaert.eu\/?p=2887"},"modified":"2024-01-29T10:53:18","modified_gmt":"2024-01-29T09:53:18","slug":"conditions-for-granting-subsidiary-protection-fully-compatible-with-the-strasbourg-jurisprudence-judgment-of-the-cjeu-in-the-case-of-staatssecretaris-van-justitie-en-veiligheid","status":"publish","type":"post","link":"https:\/\/johan-callewaert.eu\/fr\/conditions-for-granting-subsidiary-protection-fully-compatible-with-the-strasbourg-jurisprudence-judgment-of-the-cjeu-in-the-case-of-staatssecretaris-van-justitie-en-veiligheid\/","title":{"rendered":"Conditions for granting subsidiary protection \u201cfully compatible\u201d with – but not “more extensive” than – Strasbourg : judgment of the CJEU in the case of Staatssecretaris van Justitie en Veiligheid"},"content":{"rendered":"\n

In the case of Staatssecretaris van Justitie en Veiligheid (Notion d\u2019atteintes graves)<\/em><\/a> (C-125\/22, 9.11.2023), the CJEU ruled on the requirements to be fulfilled for the granting of subsidiary protection<\/strong> under Article 15 of Directive 2011\/95\/EU (\u201cQualification Directive\u201d).<\/p>\n\n\n\n

Under that provision, the \u201cserious harm<\/strong>\u201d justifying the granting of subsidiary protection can consist of either the death penalty<\/strong> or execution (a), or torture or inhuman or degrading treatment<\/strong> or punishment of an applicant in the country of origin (b), or serious and individual threat to a civilian\u2019s life or person by reason of indiscriminate violence<\/strong> in situations of international or internal armed conflict (c).<\/p>\n\n\n\n

The main issue raised in this case was about the criteria<\/b> to be used for the assessment of whether any of these three situations materialised in a given case: only the general situation<\/b> in the country concerned or also the individual position and personal circumstances<\/b> of the applicant for subsidiary protection?<\/span><\/p>\n\n\n\n

In essence, the CJEU ruled that the application of Article 15 (a) and (b) required a \u201cclear degree of individualisation<\/strong>\u201d (\u00a7\u00a7 37, 72), whereas under Article 15 (c), one had to distinguish between exceptional and less exceptional situations.<\/p>\n\n\n\n

According to this approach, the exceptional situations<\/strong> are those which occur when the applicant for subsidiary protection comes from an area of a given country hit by \u201cthe most extreme cases of general violence<\/strong>\u201d, within the meaning of the judgment of the ECtHR in NA. v. United Kingdom<\/em><\/a>. In such cases, substantial grounds would exist for believing that a civilian, returned to the relevant country or region, would, solely on account of his or her presence on the territory<\/strong> of that country or region, face a real risk of being subject to a serious and individual threat to his or her life or person (\u00a7\u00a7 58, 63). Therefore, the existence in such cases of a risk of a \u201cserious and individual threat\u201d, within the meaning of Article 15(c), is not conditional on the applicant proving that he or she is specifically affected by reason of factors particular to his or her personal circumstances (\u00a7 41).<\/p>\n\n\n\n

By contrast, in the \u201cless exceptional situations<\/strong>\u201d, factors relating to the individual position and personal circumstances<\/strong> of the applicant are relevant, to the effect that the more the applicant is able to show that he or she is specifically affected<\/strong> by reason of factors particular to his or her individual position or personal circumstances, the lower the level of indiscriminate violence<\/strong> required for him or her to be eligible for subsidiary protection (\u00a7 42). Consequently, in such cases more relevant personal elements<\/strong> are needed to justify subsidiary protection than just the fact of coming from an area where \u201cthe most extreme cases of general violence\u201d occur (\u00a7 65). <\/p>\n\n\n\n

What is very helpful in this ruling is that the CJEU takes care of indicating that by virtue of Articles 6(3) TEU and 52(3) of the EU-Charter<\/strong>, the case-law of the ECtHR<\/strong> on Article 3 of the Convention (prohibition of ill-treatment) must be taken into account \u201cas the minimum threshold of protection<\/strong>\u201d, when interpreting Directive 2011\/95 and Article 4 of the EU-Charter (\u00a7\u00a7 59-60).<\/p>\n\n\n\n

What is perhaps even more remarkable as a result, and regrettably still very rare in the Luxembourg jurisprudence (one isolated example being Menci<\/a><\/em>, \u00a7 62), is a clear statement by the CJEU about its interpretation of EU law being \u201cfully compatible<\/strong>\u201d with the corresponding Strasbourg case-law<\/strong>, here on Article 3 of the Convention (\u00a7 66). Such a useful clarification \u2013 which indeed corresponds to reality \u2013 can only facilitate the task of domestic judges who, when they apply EU law, must also comply with the Convention (see Bivolaru and Moldovan v. France<\/em><\/a>, \u00a7 103). <\/p>\n\n\n\n

Somewhat surprisingly, though, the CJEU adds that its interpretation of Article 15(c) would provide applicants for international protection a more extensive protection<\/strong> than that offered by Article 3 of the Convention (\u00a7 66). As such, this would not be a problem, as the Convention is open to its own standards being raised at domestic level (Art. 53 of the Convention) and Article 52(3) of the EU-Charter allows EU law to do the same.<\/p>\n\n\n\n

However, this statement would appear to be a misrepresentation<\/strong> of the situation. It seems based on the following false assumption by the CJEU:<\/p>\n\n\n\n

The Court has already held that it is Article 15(b) of Directive 2011\/95 which corresponds, in essence, to Article 3 ECHR. By contrast, Article 15(c) of that directive is a provision, the content of which is different from that of Article 3 ECHR, and the interpretation of which must, therefore, be carried out independently, in order, inter alia, to ensure that that provision has its own field of application, although with due regard for the fundamental rights guaranteed under the Charter and the ECHR <\/em>(\u00a7 62)<\/p>\n\n\n\n

This analysis seems to be missing the fact that while the wording of Article 3 of the Convention is reflected only in Article 15 (b), the ECtHR has interpreted Article 3 so as to extend its scope<\/strong> to most of the situations described in Article 15 (c), thereby applying both individual and general criteria<\/strong> for the assessment of whether an individual can be considered to be at a risk relevant under Article 3 if returned to his or her country of origin. For instance, in Khasanov and Rakhmanov v. Russia<\/em><\/a>, the ECtHR stated:<\/p>\n\n\n\n

The risk assessment must focus on the foreseeable consequences of the applicant\u2019s removal to the country of destination, in the light of the general situation there and of his or her personal circumstances \u2026. It must be considered whether, having regard to all the circumstances of the case, substantial grounds have been shown for believing that the person concerned, if returned, would face a real risk of being subjected to treatment contrary to Article 3 of the Convention. If the existence of such a risk is established, the applicant\u2019s removal would necessarily breach Article 3, regardless of whether the risk emanates from a general situation of violence<\/strong>, a personal characteristic of the applicant<\/strong>, or a combination of the two<\/strong>.<\/em> (\u00a7 95, emphasis added)<\/p>\n\n\n\n

These are exactly the kind of situations described in paragraphs 63 and 64 of the ruling which, according to the CJEU, come with the scope of Article 15 (c) of Directive 2011\/95. In other words, under the current case-law Article 3 of the Convention covers the situations coming within the scope of Article 15 (b) or (c)<\/strong>, the level of personal circumstances being required for Article 3 to kick in hinging on the nature of the risk<\/strong> at stake. This means, as a consequence, that the CJEU is not dispensed from complying with the Convention minimum standard under Article 3<\/strong> when interpreting Article 15 (c) of the Directive.<\/p>\n\n\n\n

Last but not least, another useful clarification made by the CJEU is about the burden of proof<\/strong>, the CJEU stating that although, under Article 4(1) of Directive 2011\/95, Member States may require the applicant, during the first of those stages, to submit as soon as possible all elements needed to substantiate the application for protection, the authorities of the Member States must, if necessary, actively cooperate<\/strong> with him or her in order to determine and supplement the relevant elements of the application, those authorities being often better placed than the applicant to gain access to certain types of documents (\u00a7 47). This is very much in line with the Strasbourg approach as described in J.K. and Others v. Sweden<\/em><\/a>.<\/p>\n","protected":false},"excerpt":{"rendered":"

In the case of Staatssecretaris van Justitie en Veiligheid (Notion d\u2019atteintes graves) (C-125\/22, 9.11.2023), the CJEU ruled on the requirements to be fulfilled for the granting of subsidiary protection under Article 15 of Directive 2011\/95\/EU (\u201cQualification Directive\u201d). Under that provision, the \u201cserious harm\u201d justifying the granting of subsidiary protection can consist of either the death […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"closed","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[23,19],"tags":[],"class_list":["post-2887","post","type-post","status-publish","format-standard","hentry","category-court-of-justice-of-the-eu","category-recent-case-law"],"translation":{"provider":"WPGlobus","version":"3.0.2","language":"fr","enabled_languages":["en","de","fr"],"languages":{"en":{"title":true,"content":true,"excerpt":false},"de":{"title":false,"content":false,"excerpt":false},"fr":{"title":false,"content":false,"excerpt":false}}},"_links":{"self":[{"href":"https:\/\/johan-callewaert.eu\/fr\/wp-json\/wp\/v2\/posts\/2887","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/johan-callewaert.eu\/fr\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/johan-callewaert.eu\/fr\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/johan-callewaert.eu\/fr\/wp-json\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/johan-callewaert.eu\/fr\/wp-json\/wp\/v2\/comments?post=2887"}],"version-history":[{"count":6,"href":"https:\/\/johan-callewaert.eu\/fr\/wp-json\/wp\/v2\/posts\/2887\/revisions"}],"predecessor-version":[{"id":2965,"href":"https:\/\/johan-callewaert.eu\/fr\/wp-json\/wp\/v2\/posts\/2887\/revisions\/2965"}],"wp:attachment":[{"href":"https:\/\/johan-callewaert.eu\/fr\/wp-json\/wp\/v2\/media?parent=2887"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/johan-callewaert.eu\/fr\/wp-json\/wp\/v2\/categories?post=2887"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/johan-callewaert.eu\/fr\/wp-json\/wp\/v2\/tags?post=2887"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}