Case C-465/07

Meki Elgafaji

and

Noor Elgafaji

v

Staatssecretaris van Justitie

(Reference for a preliminary ruling from the Raad van State)

(Directive 2004/83/EC – Minimum standards for determining who qualifies for refugee status or for subsidiary protection status – Person eligible for subsidiary protection – Article 2(e) – Real risk of suffering serious harm – Article 15(c) – Serious and individual threat to a civilian’s life or person by reason of indiscriminate violence in situations of armed conflict – Proof)

Summary of the Judgment

1.        Visas, asylum, immigration – Asylum policy – Minimum standards for determining who qualifies for refugee status or for subsidiary protection status – Directive 2004/83 – Eligibility conditions for subsidiary protection

(Council Directive 2004/83, Art. 15(b) and (c))

2.        Visas, asylum, immigration – Asylum policy – Minimum standards for determining who qualifies for refugee status or for subsidiary protection status – Directive 2004/83 – Eligibility conditions for subsidiary protection

(Council Directive 2004/83, Arts 2(e) and 15(c))

1.        The fundamental right guaranteed under Article 3 of the European Convention on Human Rights (ECHR) forms part of the general principles of Community law, observance of which is ensured by the Court. In addition, the case-law of the European Court of Human Rights is taken into consideration in interpreting the scope of that right in the Community legal order. However, it is Article 15(b) of Directive 2004/83 on minimum standards for the qualification and status of third country nationals or stateless persons as refugees or as persons who otherwise need international protection and the content of the protection granted, which corresponds, in essence, to Article 3 of the ECHR.

By contrast, Article 15(c) of that directive is a provision, the content of which is different from that of Article 3 of the ECHR, and the interpretation of which must, therefore, be carried out independently, although with due regard for fundamental rights as they are guaranteed under the ECHR.

(see para. 28)

2.        Article 15(c) of Directive 2004/83 on minimum standards for the qualification and status of third country nationals or stateless persons as refugees or as persons who otherwise need international protection and the content of the protection granted, in conjunction with Article 2(e) thereof, must be interpreted as meaning that:

–       the existence of a serious and individual threat to the life or person of an applicant for subsidiary protection is not subject to the condition that that applicant adduce evidence that he is specifically targeted by reason of factors particular to his personal circumstances;

–       the existence of such a threat can exceptionally be considered to be established where the degree of indiscriminate violence characterising the armed conflict taking place – assessed by the competent national authorities before which an application for subsidiary protection is made, or by the courts of a Member State to which a decision refusing such an application is referred – reaches such a high level that substantial grounds are shown for believing that a civilian, returned to the relevant country or, as the case may be, to the relevant region, would, solely on account of his presence on the territory of that country or region, face a real risk of being subject to that threat.

That interpretation is fully compatible with the European Convention on Human Rights (ECHR), including the case-law of the European Court of Human Rights relating to Article 3 of the ECHR.

(see paras 43-44, operative part)