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the basis of a comprehensive assessment of the specific circumstances of the case.
18
As regards the situation of CF and DN, the referring court states that it is not satisfied that they are
specifically affected by reason of their personal circumstances by the violence prevailing in the
province of Nangarhar. However, in view of the general security situation in that province, and in
particular the fact that the region is the scene of fighting between various highly fragmented parties
to the conflict (including terrorist groups), which are integrated in the civilian population, and that
no party is in a position effectively to control the region or to protect the civilian population who are
the victims of insurgents and government forces, the referring court considers that if CF and DN
were returned to the province of Nangarhar, they would, solely on account of their presence, face a
real risk of serious and individual threat by reason of indiscriminate, conflict-related violence.
Furthermore, in view of their particularly vulnerable profile, if CF and DN were to return to
Afghanistan, they would also not have an acceptable alternative refuge within the country, given
that it would generally be unreasonable for them to settle in other conceivable places (such as
Kabul, Herat and Mazar-e Sharif).
19
Thus, according to the referring court, on the basis of a comprehensive assessment that also
included other risk-substantiating circumstances, the current level of violence prevailing in the
province of Nangarhar would have to be regarded as being so high that the applicants in the main
proceedings, to whom no internal protection is available, would, solely by reason of their presence,
face a serious threat on the territory in question. However, if a finding of serious and individual
threat depended principally on the number of civilian casualties, the applications of those applicants
in the main proceedings for subsidiary protection would have to be rejected.
20
In those circumstances, the Verwaltungsgerichtshof Baden-Württemberg (Higher Administrative
Court, Baden-Württemberg) decided to stay the proceedings and to refer the following questions to
the Court of Justice for a preliminary ruling:
‘(1)
Do Article 15(c) and Article 2(f) of Directive 2011/95 preclude the interpretation and
application of a provision of national law whereby a serious and individual threat to a
civilian’s life or person by reason of indiscriminate violence in situations of armed conflict (in
the sense that a civilian would, solely on account of his or her presence in the relevant region,
face a real risk of being subject to such a threat), in cases in which that person is not
specifically targeted by reason of factors particular to his or her personal circumstances, can
only exist where a minimum number of civilian casualties (killed and injured) has already
been established?
(2)
If the answer to Question 1 is in the affirmative: must the assessment as to whether a threat
exists in that sense be conducted on the basis of a comprehensive appraisal of all the
circumstances of the individual case? If not: which other requirements of EU law apply to that
assessment?’
Consideration of the questions referred
The first question
21
By its first question, the referring court asks, in essence, whether Article 15(c) of Directive 2011/95
must be interpreted as precluding the interpretation of national legislation according to which, where
a civilian is not specifically targeted by reason of factors particular to his or her personal
circumstances, a finding of serious and individual threat to that civilian’s life or person by reason of
‘indiscriminate violence in situations of … armed conflict’, within the meaning of that provision, is
subject to the condition that the ratio between the number of casualties in the relevant area and the
total number of individuals composing the population of that area reach a fixed threshold.
22
In order to answer that question, it should be noted that Directive 2011/95, which was adopted on
05/10/2021, 12:08