France - CNDA, 9 June 2009, Mr. H., n°639474/08019905

Country of Decision:
Country of Applicant:
Date of Decision:
09-06-2009
Citation:
CNDA, 9 juin 2009, M.H., n° 639474/08019905
Additional Citation:
Cour nationale du droit d’asile, 9 juin 2009, M.H., n° 639474/08019905
Court Name:
National Asylum Court/Cour nationale du droit d’asile (CNDA)
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Headnote: 

The situation which prevails today in Mogadishu must be seen as a situation of generalised violence resulting from a situation of internal armed conflict. Its intensity is sufficient to consider that today the applicant faces a serious, direct and individual threat to his life or person, without being able to prevail himself of any protection.

Facts: 

The applicant, from Somalia, was a member of the Sheekhaal sub-clan and to the Hawiye clan He was born in Mogadishu in 1990. Since his birth he suffered the consequences of the fighting in  Mogadishu. His family’s house was confiscated by armed militia; his father was killed; his brother was forcibly recruited by fundamentalist militia and died in war. He managed to flee Somalia in 2008. He applied for asylum at the French Office for the Protection of Refugees and Stateless Persons (OFPRA) Ofpra which rejected his application. He lodged an appeal against this decision before the Cour Nationale du Droit d’Asile (National Asylum Court) (CNDA).
 

Decision & Reasoning: 

The Court considered firstly that there was no reason to believe that the acts from which the applicant suffered were linked to his ethnic origin or to any other ground listed in Article 1A(2) of the 1951 Refugee Convention. The applicant therefore did not qualify as a refugee.

Secondly, the Court examined the situation which prevailed in Somalia at that time and its deterioration due to the violent fighting between the Federal Transitional Government and several clans and Islamic militia. The Court considered that, in some geographical areas, in particular in and around Mogadishu, the  fighting was at the time characterised by a climate of generalised violence which included the perpetration of  acts of violence, slaughters, murders and mutilations targeted at civilians in these areas. The Court therefore considered that this situation must be seen as a situation of generalised violence resulting from a situation of internal armed conflict.

Finally, the Court considered that the situation of generalised violence, due to its intensity in the applicant’s region of origin, was sufficient to find that he currently faced, a serious, direct and individual threat to his life or person, without being able to avail himself of any protection.
 

Outcome: 

Subsidiary protection was granted to the claimant.

Observations/Comments: 

Article 15 (c) of the Qualification Directive is transposed in French legislation by Article L.712-1 c) Ceseda.

Article L.712-1 Ceseda reads [unofficial translation]:
“Subject to the provisions of Article L. 712-2 [exclusion], subsidiary protection is granted to any person who does not qualify for refugee status under the criteria defined in Article L. 711-1 and who establishes that she/he faces one of the following serious threats in her/his country:
a) death penalty;
b) torture or inhuman or degrading treatment or punishment;
c) serious, direct and individual threat to a civilian’s life or person by reason of generalised violence resulting from a situation of internal or international armed conflict”.

Under French legislation, the threat should thus not only be “serious and individual” (as in the Qualification Directive) but also “direct”. Also, French legislation refers to “generalized” violence rather than “indiscriminate” violence.