Belgium – Council for Alien Law litigation, 20 December 2007, Nr. 5.277
Country of Decision:
Country of Applicant:
Date of Decision:
20-12-2007
Citation:
Nr. 5.277
Additional Citation:
Published in: Rev. dr. étr., 2009, nr. 155, p. 544
Court Name:
Council for Alien Law litigation
Keywords:
Relevant Legislative Provisions:
European Union Law > EN - Qualification Directive, Directive 2004/83/EC of 29 April 2004 > Art 4
European Union Law > EN - Qualification Directive, Directive 2004/83/EC of 29 April 2004 > Art 4 > Art 4.4
European Union Law > EN - Qualification Directive, Directive 2004/83/EC of 29 April 2004 > Art 15 > Art 15 (b)
European Union Law > EN - Qualification Directive, Directive 2004/83/EC of 29 April 2004 > Art 15
European Union Law > EN - Qualification Directive, Directive 2004/83/EC of 29 April 2004 > Art 4 > Art 4.4
European Union Law > EN - Qualification Directive, Directive 2004/83/EC of 29 April 2004 > Art 15 > Art 15 (b)
European Union Law > EN - Qualification Directive, Directive 2004/83/EC of 29 April 2004 > Art 15
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Headnote:
In its assessment of real risk of serious harm the CALL took into consideration the psychological circumstances of the applicant. The CALL considered that the seriousness of the applicant’s past traumatic experiences (as a child soldier) had left such psychological marks on him that a future forced enrolment in the army would be psychologically unbearable for him and would, in his case, amount to inhuman and degrading treatment.
Facts:
The applicant, a Rwandan national, survived the 1994 genocide as a child. Later he was forcibly recruited as a child soldier and fought for 3 years in the Congo. The applicant claimed that he had denounced the atrocities that were being committed by the army and that, as a consequence, he had been placed in a military prison from which he escaped after four years and fled to Belgium. The Office of the Commissioner General for Refugees and Stateless Persons (CGRS) refused to grant the applicant refugee status or subsidiary protection, stating that his declarations were highly improbable and full of contradictions. His well-founded fear of persecution was not proven. The applicant lodged an appeal against this decision.
Decision & Reasoning:
The CALL confirmed that in asylum cases the burden of proof rests on the applicant, but the standard of “proof” is more lenient. The CALL found that in this case the CGRS had failed to take into account all of the elements. The CGRS had not considered a medical and a psychological report that supported the applicant’s declarations and explained the confused nature of some of his statements. Considering these two reports, the CALL found that it was established that the applicant had survived the Rwandan genocide, that he had been a child soldier and that he had experienced serious traumatic events in his life.
However, his four year imprisonment remained unproven and highly unlikely. The link with the grounds for persecution as listed in the 1951 Refugee Convention was therefore not established.
The CALL then turned to the issue of subsidiary protection and considered that the fact that the applicant had been enrolled as a child soldier in itself constituted inhuman and degrading treatment in the sense of Art 48/4(2)(b) of the Belgian Alien Act (transposition of Art 15(b) of the Qualification Directive). Referring to Art 4.4 of the Qualification Directive, the CALL found that the applicant had therefore demonstrated that he had already been subject to serious harm, that this was a serious indication of a real risk of future serious harm and that it now needed to be examined whether there were good reasons to believe that such harm would not be repeated.
The CALL considered that the applicant no longer ran the risk of being enrolled as a child soldier, as he was no longer a minor. However, there was still a real risk that the applicant would again be enrolled in the Rwandan army. Whilst such enrolment in itself would not constitute inhuman or degrading treatment, it could become such if it went along with unacceptable force or if it had the effect of putting the person concerned in an unbearable physical or psychological situation. In the case at hand the CALL found that the seriousness of the traumas that the applicant had been subjected to in the past had left such psychological marks that a new forced enrolment in the army would be psychologically unbearable for him and would constitute inhuman and degrading treatment.
Outcome:
The decision of the CGRS was overruled and the applicant was granted subsidiary protection.
