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3.1. Article 15(a) QD

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COMMON ANALYSIS
Last updated: June 2022

As noted in the chapter Refugee status, some profiles of applicants from Somalia may be at risk of death penalty or execution (e.g. 2.6 Individuals (perceived as) contravening social or religious laws/tenets, 2.10 LGBTIQ persons, 2.2.3 Deserters from Al-Shabaab, and those individuals would qualify for refugee status. In cases where there is no nexus to a Convention ground, (e.g. some cases of 2.8 Individuals accused of crimes in Somalia) the need for subsidiary protection under Article 15(a) QD should be examined.

 
Under Article 15(a) QD, serious harm consists of the death penalty or execution.

  • The death penalty is as such, and under any circumstances, considered as a serious harm under Article 15(a) QD. The sentence does not need to have already been imposed. A real risk that on return a death penalty may be imposed on an applicant could be considered sufficient to substantiate the need of subsidiary protection.
  • As the addition of the term ‘execution’ suggests, Article 15(a) QD also encompasses the intentional killing of a person by non-State actors exercising some kind of authority. It may also include extrajudicial killings, but an element of intentional and formalised punishment needs to be present.

The FGS has not abolished the death penalty, nor has it declared a moratorium on executions. The FGS and other actors within the jurisdiction of Somalia, continue to impose and carry out death sentences for crimes other than the intentional killing of a person, including crimes committed while under the age of 18. Death penalty can be imposed for crimes such as treason and espionage, and crimes that endanger public safety. Within this context, military courts often pronounce death sentences to civilians and carry out executions at a higher rate than civilian courts.

Death penalty may also be imposed by Islamic courts for the commission of hadd crimes as mandated by Sharia in relation to crimes that are ‘against the rights of God’: for example, illicit sexual relations (zina), including homosexual relationships. However, traditionally the application of hadd by Islamic courts has been severely limited by the strict requirements for evidence. For more information, see profile 2.6 Individuals (perceived as) contravening social or religious laws/tenets.

Al-Shabaab courts also implement Sharia law in a strict and violent way and may impose severe punishments for the abovementioned hadd crimes, including for adopting un-Islamic behaviour and for ‘spying’ for the government or other foreign powers. These punishments refer to instances of executions, including public executions by stoning, lashing and shooting. For more information, see sub-profile 2.6.1 Individuals (perceived as) contravening Islamic laws in Al-Shabaab controlled areas.

If there is a reasonable degree of likelihood of death penalty or execution, subsidiary protection under Article 15(a) QD shall be granted, unless the applicant is to be excluded in accordance with Article 17 QD.

In some cases the death penalty would have been imposed for a serious crime committed by the applicant, or for other acts falling within the exclusion grounds (Article 17 QD). Therefore, although the criteria of Article 15(a) QD would be met, exclusion considerations should be examined (see chapter Exclusion).