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:
- Healthcare unavailability and socio-economic conditions: It is important to note that serious harm must take the form of conduct of an actor (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 of an actor, such as the intentional deprivation of the applicant of appropriate healthcare.
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. Arbitrary arrests and illegal detention centres run by different actors (linked to the former government, to militias, to strongmen or to insurgent groups) have been widespread in Afghanistan. In general, human rights are not respected in these illegal detention facilities and persons who face a real risk of being illegally detained may be in need of protection. 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. It should also be stressed that in official and unofficial detention centres, torture often took place.
Corporal punishments: Under the Sharia, corporal punishments are envisaged for different crimes. Article 29 of the Constitution of Afghanistan prohibited ‘punishment contrary to human dignity’, and Afghanistan has been a party to the CAT since 1987. However, corporal punishments were permitted by law in Afghanistan due to the pluralistic legal system, whereby Islamic and civil laws interacted with one another, allowing individual judges and courts to determine how to prescribe punishments under either code. Corporal punishment, including the use of lashings and beatings, were more frequent in areas controlled by anti-government elements. In territories under their control, the Taliban operated a parallel justice system based on a strict interpretation of the Sharia. In addition to executions (see Article 15(a) QD), the operation of this system led to punishments reported by UNAMA to be cruel, inhuman, and degrading. Following the takeover, the Taliban have made clear statements regarding the required adherence to the Sharia.
Criminal violence: Common criminality and organised crime have been reported throughout the country, with an increase in recent years, especially in major cities such as Kabul, Jalalabad, Herat, and Mazar-e Sharif. Reported crimes comprised kidnappings of adults and children, robberies and burglaries, murders and extortion. Criminal groups targeted businessmen, local officials and ordinary people, and foreigners and wealthy Afghans were indicated as the main targets. Where there is no nexus to a reason for persecution under the refugee definition, the risk of crimes such as the above may qualify under Article 15(b) QD.
Please note that exclusion considerations could be relevant.