Torture or inhuman or degrading treatment or punishment
GUIDANCE NOTE
Last update: February 2023
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 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 on the part of an actor, in particular the intentional deprivation for the applicant of appropriate healthcare.
Healthcare facilities have been destroyed or damaged in targeted attacks by actors in the conflict, therefore deliberately limiting access to healthcare in the respective areas. Sieges in Aleppo and Dar’a al-Balad restricted the supply of food, water and electricity as well as the entry of basic necessities such as flour, fuel, and medical aid. In such cases, the application of Article 15(b) QD may be considered where refugee status has not been found to apply.
Arbitrary arrests, illegal detention and prison conditions
Prisons and detention centres in Syria have been reported as harsh and, in many instances, life-threatening, due to food shortages, gross overcrowding, physical and psychological abuse, and inadequate sanitary conditions and medical care. Reports mention that prisoners and detainees face the risk of ill-treatment and even execution, while deaths in custody resulting from torture or other ill-treatment have been documented. Various methods of torture have been reported, including physical violence, sexual torture, psychological torture, health neglect and detention conditions, forced labour, torture in military hospitals. Children are not separated from adults and are held in the same prisons, suffering from the same types of torture.
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 be highlighted that in some cases of individuals facing the risk of arrest or detention in Syria, there would be a nexus to a reason for persecution falling under the definition of a refugee, and those individuals would qualify for refugee status. If nexus to a reason for persecution is not substantiated, Article 15(b) QD would apply.
Criminal violence
Criminality in Syria is widely reported and is said to be a main driver behind the activities of pro-government militias. Pro-government militias are largely autonomous and free to exploit the population in the areas they control. Many have reportedly turned into a mafia known for extortion of civilians, stealing, looting, corruption, gun smuggling, drug smuggling and committing violations against civilians.
In several governorates, a state of lawlessness was reported where persons were victim of theft, extortions, kidnappings, assassinations, looting, robberies, and human trafficking. Drug production and cross-border drug trafficking increased in the south of Syria, including in Dar’a governorate.
The implications of leaving Syria should also be given due consideration.
A real risk of violent crime, such as kidnappings, robberies, murder, human trafficking would meet the requirements under Article 15(b) QD.
Where there is no nexus to a reason for persecution under the refugee definition, the risk of violent crime such as the above may qualify under Article 15(b) QD.