Subsidiary protection

• Author: European Asylum Support Office (EU body or agency)
• Pages: 117-156

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3. Subsidiary protection

This chapter addresses the EU-regulated status of subsidiary pro tection and the situations in which,

where the applicant has not been found to qualify as a refugee, they may be eligible for subsidiary

protection in accordance with Article 15 QD (see also Article 10(2) APD).

The contents of this chapter include:

Under the section Article 15(a) QD, the analysis focuses on the applicable EU legal framework and the

factual circumstances surrounding the ‘death penalty or execution’ in Iraq.

The section on Article 15(b) QD looks into the risk of ‘torture or inhuman or degrading treatment or

punishment’ in relation to particular circumstances in Iraq.

Under the section Article 15(c) QD, the analysis expands further an d covers the different elements of the

provision, looking into: ‘armed conflict’, ‘qualification of a person as a ‘civilian’, ‘indiscriminate violence’,

‘serious and individual threat’ (where further individualisation elements are discussed), ‘qualification of the

harm as ‘threat to life or person’, and the interpretation of the nexus ‘by reasons of’. The sub-section on

‘indiscriminate violence’ includes an asses sment of the situation in each governorate in Iraq.

3.1 Article 15(a) QD

As noted in the chapter 2. Refugee status, some profiles of applicants from Iraq may be at risk of

death penalty or execution. In such cases, there could be a nexus to a reason for persecution falling

under the definition of a refugee (see for example the profile 2.1 Persons perceived to be associated

with ISIL), and those individuals would qualify for refugee status. In cases where there is no nexus to

a Convention ground (for example, some cases of 2.20 Individuals accused of ordinary crimes), 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. The mere existence of

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 protect ion.

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.

Under the 2005 Constitution of Iraq, the President ratifies death sentences ‘issued by the competent

courts’. The death penalty is prescribed under Article 86 o f the Iraqi Penal Code No.11 of 1969.

Crimes that carry the death penalty include a variety of offences, such as crimes against internal or

external security and state institutions, acts of terrorism, kidnapping, rape, drug trafficking leading

to death, prostitution, ‘aggravated’ murder, human trafficking leading to death, etc. The definition of

‘terrorism’ crimes under the Anti-Terrorism Law is broad and susceptible to wide interpretation. The

death penalty is also provided for under the Military Penal Code, Articles 27 and 28, and the Iraqi

Internal Security Forces Penal Code of 2008, for example, for offences relating to failures to perform

one’s duties or surrendering military installations. The death penalty is executed by hang ing.

[Targeting, 1.17]

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Iraq continues to carry out capital punishment, being among the to p three countries in the Middle

East that impose and carry out executions according to Amnesty International ’s 2017 report.

Amnesty International recorded at least 125 executions in 2017 for offences that included mostly

terrorism-related acts, in addition to others related to murder, kidnapping and drugs. The Ministry of

Justice also reported in 2017 that 3 to 4 executions occur per week in Ba ghdad and Nasiriyah

prisons, noting that 15-20 % of the 6 000 prisoners in Nasiriyah Central Prison have a dea th

sentence. In April 2018, the Ministry of Justice announced t hat 13 executions had been carried out in

2018, 11 for terrorism. In October 2018, the UN Security Council noted that the total number of

executions in 2018, publicly announced by the Ministry of Justice, was 42, although more details

about the death sentences and executions had not been provided [Targeting, 1.17].

KRG has maintained the capital punishment, however, a de facto moratorium on executions had

been was reportedly established since 2008. This was breached on t wo occasions in 2015 and 2016.

Both the federal and regional governments cited popular pressure as a reason to continue to apply

or resume the death penalty in particular in response to crimes committed by ISIL [Targeting,

1.17.2].

In areas under its control, ISIL committed executions and some of them may be considered as

‘punishment’, such as for refusal to join them or for transgressing the moral codes as they are set by

ISIL and its strict interpretation of the Sharia law [Targeting, 2.2.1].

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 exclude d 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 under Article 17 QD. Therefore,

although the criteria of Article 15(a) QD would be met, exclusion considerations should be examined

(see the chapter on Exclusion below).

3.2 Article 15(b) QD

As noted in the chapter on Refugee status, some profiles of applicants from Iraq may be at risk of

torture or inhuman or degrading treatment or punishment. I n 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 jurisprudenc e of the European Court of

Human Rights (ECtHR), therefore, provides relevant guidance in order to assess whether a treatment

may qualify under Article 15(b) QD.

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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), tort ure 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 to rture 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 ki nd.

The distinction between torture and inhuman or degrading trea tment 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 tor ture).

 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 degra ding further implies a

subjective consideration by the person who suffers such tre atment or punishment. No specific

purpose on the part of the perpetrator (e.g. obtaining inform ation 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 condi tions: It is important to note that serious

harm must take the form of conduct on the part of a third party (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 a third party, in particular the intentional deprivation of the

applicant of appropriate healthcare.27

See also the profile 2.18 Persons living with disabilities and persons with severe medical issues.

 Criminal violence: Criminal networks in Iraq have been exploiting children for drug trafficking

and dealing purposes and migrants for forced labour. Acto rs such as PMU and tribes are also

reported to engage in criminality [Targeting, 3.1.2; Security situation 2019, 1.3.4, 1.4.2.2, 1.4.3,

2.8]. Criminal violence is usually motivated by financial gain and power struggle. Where there is

no nexus to a reason for persecution under the refugee definition, the risk of crimes, such as

27 CJEU, M'Bodj, paras. 35-36. See also CJEU, MP, paras. 57, 59.