Opinion of the Advocate General — ECLI:EU:C:2017:795
Date: 2017-10-24
Language of the case: English
Subject matter: Area of freedom, security and justice
Procedure: Reference for a preliminary ruling
Origin: United Kingdom

Summary — Judgment of the Court (Grand Chamber), 24 April 2018 Border controls, asylum and immigration — Asylum policy — Refugee status or subsidiary protection status — Directive 2004/83 — Eligibility for subsidiary protection — Articles 2(e) and 15(b) – Torture or inhuman or degrading treatment — Definition — Risk of serious harm to the physical or psychological health of a third country national if returned to the country of origin on account of trauma resulting from the torture he was subjected to in the past — Included — Condition — Intentional deprivation of health care in the country of origin — Verification by the national court (Charter of Fundamental Rights of the European Union, Art. 4; Council Directive 2004/83, Arts 2(e) and 15(b)) Articles 2(e) and 15(b) of Council Directive 2004/83/EC of 29 April 2004 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, read in the light of Article 4 of the Charter of Fundamental Rights of the European Union, must be interpreted as meaning that a third country national who in the past has been tortured by the authorities of his country of origin and no longer faces a risk of being tortured if returned to that country, but whose physical and psychological health could, if so returned, seriously deteriorate, leading to a serious risk of him committing suicide on account of trauma resulting from the torture he was subjected to, is eligible for subsidiary protection if there is a real risk of him being intentionally deprived, in his country of origin, of appropriate care for the physical and mental after-effects of that torture, that being a matter for the national court to determine. In that regard, it should be noted that, under Article 2(e) of Directive 2004/83, a third country national is eligible for subsidiary protection only if substantial grounds have been shown for believing that, if returned to his country of origin, he would face a real risk of suffering one of the three types of serious harm defined in Article 15 of that directive (see, to that effect, judgment of 18 December 2014, M’Bodj, C‑542/13, EU:C:2014:2452, paragraph 30 and the case-law cited). The definition of serious harm under Article 15 of Directive 2004/83 includes, in Article 15(b), torture or inhuman or degrading treatment or punishment of an applicant in the country of origin. In that context, it must first be pointed out that the fact that the person concerned has in the past been tortured by the authorities of his country of origin is not in itself sufficient justification for him to be eligible for subsidiary protection when there is no longer a real risk that such torture will be repeated if he is returned to that country. Secondly, however, it must be noted that, according to the information in the file before the Court, the request for a preliminary ruling concerns a third country national who has not only been tortured by the authorities of his country of origin in the past, but who, in addition — even though there is no longer any risk of him being tortured again if returned to that country — presently continues to suffer severe psychological after-effects resulting from the torture. Furthermore, according to duly substantiated medical evidence, those after-effects would be substantially aggravated and lead to a serious risk of him committing suicide if he were returned to his country of origin. Nevertheless, such substantial aggravation cannot, in itself, be regarded as inhuman or degrading treatment inflicted on that third country national in his country of origin, within the meaning of Article 15(b) of that directive. In that regard, it is appropriate to examine, as requested in the order for reference, the effect that may result from a lack, in the country of origin of the person concerned, of facilities offering appropriate care for the physical and mental after-effects resulting from the torture inflicted by the authorities of that country. In that respect, it should be recalled that the Court has held that the serious harm referred to in Article 15(b) of Directive 2004/83 cannot simply be the result of general shortcomings in the health system of the country of origin. The risk of deterioration in the health of a third country national who is suffering from a serious illness, as a result of there being no appropriate treatment in his country of origin, is not sufficient, unless that third country national is intentionally deprived of health care, to warrant that person being granted subsidiary protection (see, to that effect, judgment of 18 December 2014, M’Bodj, C‑542/13, EU:C:2014:2452, paragraphs 35 and 36). (see paras 28-30, 35, 45, 49-51, 58, operative part)