Sprendimas byloje Nr. C-465/07 (Elgafaji)
Europos Sąjungos Teisingumo Teismas
2009 m. vasario 17 d.
Mr and Mrs Elgafaji, Iraqi nationals, applied for international protection in the Netherlands. Dutch authorities refused to grant them temporary residence permits, finding that the applicants failed to show, in their individual circumstances, the risk of serious and individual threat to which they would be exposed were they to be returned to their country of origin. Mr and Mrs Elgafaji successfully challenged the decisions. The District Court held that Article 15(c) of the Directive 2004/83/EC, which takes account of the existence of armed conflict in the country of origin of the applicant seeking protection, does not require the high degree of individualisation of the threat required by Article 15(b) of the Directive. On appeal, the Council of State held that there were difficulties in interpreting the relevant provisions of the Directive.
Questions referred to the CJEU by the national court
1. Does Article 15(c) of the Directive 2004/83/EC offer protection only in situations which would violate the prohibition of torture and inhuman or degrading treatment under Article 3 of the ECHR, or does it offer supplementary or other protection?
2. If Article 15(c) of the Directive offers supplementary or other protection, what are the criteria in that case for determining whether a person has a real risk of serious and individual threat by reason of indiscriminate violence?
The Court found that provision in question must be interpreted as meaning that:
- the existence of serious and individual threat does not necessarily mean that the applicant has to prove that he is specifically targeted due to his personal circumstances;
- the existence of serious and individual threat can exceptionally be considered to be established where the degree of indiscriminate violence in the armed conflict reaches such a high level that a civilian would solely because of his presence in the country face a real risk of being subject to that threat.
The Court clarified, however, that the more the applicant is able to show that he is specifically affected by reason of factors particular to his personal circumstances, the lower the level of indiscriminate violence required for him to be eligible for subsidiary protection.