Torture or inhuman or degrading treatment or punishment

GUIDANCE NOTE
Last update: April 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 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 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. On 31 October 2021, a Taliban official stated that there were around 4 000 prisoners in Afghanistan. Current prisoners were detained based on criminal charges including murder and killings. It was also reported that the Taliban incarcerate people with minor ‘suspicion of illegal activity’. There were reports of Taliban fighters arresting people and using violence and torture in custody. Other incidents of reported torture by the Taliban refer to journalists, healthcare professionals, and civilians during the weeks of fighting in Panjshir. The Taliban have also been accused of committing human rights violations against alleged ISKP affiliates, including illegal detention and torture in Nangarhar and other areas. 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, for example stoning for adultery, public flogging for drinking alcohol and hand amputation for some types of theft. 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. It was suggested that Taliban judges avoided to issue 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. 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.
• 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. Only limited information on criminal activities after the Taliban takeover is available. 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.

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.

Please note that exclusion considerations could be relevant.