• Citer

What protection for persons fleeing indiscriminate violence? The Impact of the European Courts on the EU Subsidiary Protection Regime’

par Tsourdi, Evangelia
Référence Refuge from Inhumanity: Enriching Refugee Protection Standards through Recourse to Humanitarian Law, Brill: Martinus Nijhoff, Boston/Leiden, Ed. 1
Publication A Paraître, 2014

Partie d'ouvrage collectif

• Détails
• Contenu

Résumé :

This contribution examines the impact of the Court of Justice of the European Union (CJEU) and the European Court of Human Rights (ECtHR) jurisprudence on the understanding of the EU subsidiary protection regime. It seeks to assess how protection is realised in the EU for asylum seekers fleeing indiscriminate violence, what gaps remain as well as potential avenues to enhance the effective application of the EU subsidiary protection regime. The study looks briefly into the origins of the subsidiary protection regime and the definitions of ‘subsidiary protection beneficiary’ and ‘serious harm’ as established in the Qualification Directive. It then critically analyses the findings of the CJEU in the Elgafaji judgment. The research further evaluates the scope of Article 3 ECHR and the ECtHR jurisprudence so as to ascertain what protection is available to asylum seekers through these norms. The analysis reveals that it is arguable that, through the latest jurisprudence of the ECtHR, protection under this provision is comparable to the one available under Article 15 (c) of the Qualification Directive as interpreted in Elgafaji.In a final section, the research considers possible avenues to define the added protection value of Article 15(c). It cautions against an interpretation that would undermine the primacy of the 1951 Refugee Convention. It then focuses on the way the Strasbourg Court positions itself vis-à-vis international humanitarian law and supports that this approach could inform the understanding of the terms used in Article 15 (c) and could in fact safeguard the relevance of this provision.