Torture or inhuman or degrading treatment or punishment

GUIDANCE NOTE
Last updated: June 2022

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 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:

• 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. 

  Urban prisons in Somalia, especially following large security incidents, are at times overcrowded, with authorities often not separating pre-trial detainees from convicted prisoners, especially in the southern and central regions. In these areas, including areas under the control of Al-Shabaab, prison conditions are believed to be harsh and at times life-threatening due to poor sanitation and hygiene, inadequate food and water, and lack of medical care. Disease outbreaks and long pre-trial detention period have been reported. Reportedly, Garowe Prison in Puntland and Hargeisa Prison in Somaliland met international standards and were well-managed. Taking into account the above, some cases may qualify under Article 15(b) QD.

• Corporal punishment: corporal punishments for the so-called hadd crimes may be imposed by Sharia or Al-Shabaab courts. Where there is no nexus to a reason for persecution, being subjected to such punishments may qualify under Article 15(b) QD.
• Criminal violence: criminality is pervasive in Somalia. Reported crimes include killings, sexual violence, abductions, banditry, thefts, robberies, money extortion, piracy, (child) trafficking, human and/or arms smuggling. Where there is no nexus to a reason for persecution, being subjected to such criminal acts may qualify under Article 15(b) QD.
• Healthcare unavailability: it is important to note that serious harm must take the form of conduct of an actor (Article 6 QD). In itself, the general unavailability of healthcare, education or other socio-economic elements (e.g. situation of IDPs, difficulties in finding livelihood opportunities, housing) is 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, for example, the intentional deprivation of the applicant of appropriate health care.^[6]
• Socio-economic conditions: People in Somalia face continuous socio-economic challenges due to high poverty and highly precarious conditions regarding employment, housing, food and water supplies. Besides violent conflicts, climatic shocks, among which droughts and floods, lead to displacements and contribute to vulnerabilities. Furthermore, (repeated) evictions from government buildings and by private landlords in Somalia represent a constant risk for vulnerable communities, among which IDPs living in collective settlements and other urban poor individuals in densely populated areas. 

  Additionally, it has been reported that Al-Shabaab continued to hinder commercial activities in the areas it controlled and disrupted the delivery of humanitarian aid.

  As stated above, serious harm must take the form of conduct of an actor (Article 6 QD). In themselves, general poor socio-economic conditions 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. However, when these socio-economic conditions are the result of an intentional conduct of an actor (e.g. in case of disruptions of humanitarian aid by Al-Shabaab, forced evictions), these conditions may qualify under Article 15(b) QD, following an individual assessment.

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 2.7 Individuals involved in blood feuds/clan disputes, where a nexus to a reason for persecution has not been established.

Please note that exclusion considerations could be relevant.