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Last update: April 2022

As noted in the chapter on Refugee status, some profiles of applicants from Afghanistan 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 as serious harm 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 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 healthcare29F[18]

See also the profiles of 2.15 Persons living with disabilities and persons with severe medical issues and 2.18 Individuals who were born in Iran or Pakistan and/or who lived there for a long period of time.

[18] CJEU, M’Bodj, paras. 35-36. See also CJEU, MP, paras. 57, 59.

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 were not respected in these illegal detention facilities and persons who face a real risk of being illegally detained may be in need of protection.

Soon after the takeover, the Taliban announced the release of ‘all political detainees’ throughout Afghanistan and released thousands of prisoners, inter alia from Kabul’s main prison Pul-e Charkhi [Country Focus 2022, 1.5.2].

On 31 October 2021, a Taliban official stated that there were around 4 000 prisoners in Afghanistan, including 600 in Pul-e Charkhi. Current prisoners were detained based on criminal charges including murder and killings. It was also reported that the Taliban incarcerated people with minor ‘suspicion of illegal activity’. Some of the prisoners who fled from prison on 15 August 2021, had been arrested and reincarcerated. The same official further claimed that inmates were reportedly provided with food, medical care, access to legal procedures, and allowed to receive visits from family members. However, there were reports indicating that inmates did not have access to legal counsel and suffered in cells, waiting a formal judicial system being put in place. Female inmates reportedly lacked medical care in Kabul prison [Country Focus 2022, 1.5.2].

Former government employees of the prison reportedly returned to work. It was also reported that some former inmates became guards. In October 2021, the Taliban were said to have trained 130 uniformed guards for prisons and planned to train further 160 guards who will serve as prison guards both in Kabul city and in the provinces. Although they were taught that prisoners would only be punished by the law, there were reports of Taliban fighters arresting people and using violence and torture in custody [Country Focus 2022, 1.5.2].

Other incidents of reported torture by the Taliban refer to journalists, healthcare professionals, and civilians during the weeks of fighting in Panjshir [Country Focus 2022, 1.5.2, 2.5, 2.6, 2.8, 3.2]. The Taliban have also been accused of committing human rights violations against alleged ISKP affiliates, including illegal detention and torture in Nangarhar. Similar events were also reported in Laghman and Kunar [Country Focus 2022, 2.5].

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. Furthermore, it can be assessed that in cases where the prosecution or punishment is grossly unfair or disproportionate, or where a person is subjected 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 [State structure, 2.1.1, 2.1.2, 2.1.3, 2.1.4, 3.6].

See also the profile of 2.17 Individuals accused of ordinary crimes.

Corporal punishments

Under the Sharia, corporal punishments are envisaged for different crimes, for example stoning for adultery, public flogging for drinking alcohol and hand amputation for some types of theft. Article 29 of the Constitution of Afghanistan prohibited ‘punishment contrary to human dignity’, and Afghanistan has been a party of 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.

Previously, during the conflict, corporal punishments, 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 3.1 Article 15(a) QD), the operation of this system led to punishments reported by UNAMA to be cruel, inhuman, and degrading [Anti-Government Elements, 2.5; Criminal law and customary justice, 1.6, 1.8].

Following the takeover, the Taliban have made clear statements regarding the required adherence to the Sharia. Physical punishments including executions are reportedly considered as necessary parts of Islamic law. Therefore, some punishments used during the last Taliban rule would be revived, for example amputation of hands. No reports on corporal punishments issued by a court were found during the reference period of this guidance. It was suggested that Taliban judges avoided to issue too harsh punishments to avoid losing support among the population. However, there were reports on Taliban fighters subjecting civilians to punishments, inter alia whipping alleged thieves [Security September 2021, 1.1.2, Country Focus 2022, 1.5.1]. Where there is no nexus to a reason for persecution under the refugee definition, the risk of being subjected to corporal punishments such as the above may qualify under Article 15(b) QD.

See also the profile of 2.17 Individuals accused of ordinary crimes, and 4. Actors of protection

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, while foreigners and wealthy Afghans were indicated as the main targets [Security 2020, 1.4.2, 2.1.2; Society-based targeting, 8.5]. Only limited information on criminal activities after the Taliban takeover is available [see 1.7 Other non-State actors]. Where there is no nexus to a reason for persecution under the refugee definition, the risk of being subjected to crimes such as the above may qualify under Article 15(b) QD.

Other cases for which a real risk of serious harm under Article 15(b) QD may exist are, inter alia, some situations under the profile of 2.13 Children, 2.16.2 Land disputes, etc.

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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 6. Exclusion).