HUMAN RIGHTS IN THE EUROPEAN CONSTITUTIONAL ORDER

Moreover, the CJEU stressed the importance of intentionality when assessing cases involving “harm”. The Court clarified that subsidiary protection should only be granted when such mistreatment occurred within the applicant’s country of origin. 72 This nuanced understanding is backed by the idea that risks faced by a population or a specific segment thereof do not automatically translate into threats warranting classification as serious harm. 73 In light of the preceding, the CJEU reiterated that “Article 15(b) of Directive 2004/83 must be interpreted as meaning that serious harm, as defined by the directive, does not cover a situation in which inhuman or degrading treatment, such as that referred to by the legislation at issue in the main proceedings, to which an applicant suffering from a serious illness may be subjected if returned to his country of origin, is the result of the fact that appropriate treatment is not available in that country unless such an applicant is intentionally deprived of health care”. 74 Consequently, the Court’s decision narrows down the scope of what constitutes “serious harm” to scenarios involving deliberate actions or oversights that put the applicant at risk rather than general threats or deficiencies in healthcare systems. 5.2 C‑353/16 MP v Secretary of State for the Home Department 75 In another preliminary ruling requested by the Supreme Court of the United Kingdom, the CJEU confirmed its previous view on serious harm from judgment C-542/13 M’Bodj. The case concerned MP, a Sri Lanka national, who filed a request for asylum because he had been tortured and imprisoned by the Sri Lankan security forces for being a member of the “Liberation Tigers of Tamil Eelam” and that he would be subjected to more abuse if he went back to Sri Lanka for the same reason. 76 His request was rejected with argumentation that he would not be of any interest to the Sri Lankan government any longer or put in danger of more abuse if he returned to his country. He brought an action against the decision, submitting medical evidence that he was suffering the after-effects of torture, severe post-traumatic stress disorder, and serious depression, showed marked suicidal tendencies, and appeared to be mainly determined to kill himself if he had to return to Sri Lanka. 77 The referring court stood before the determination if MP should have been granted subsidiary protection based on his mental illness and suicidal tendencies by a potential return to Sri Lanka even though he would not face any real danger

72 Ibid., para. 33. 73 Ibid., para. 36. 74 Ibid., para. 41.

75 Court of Justice of the European Union. Judgment of the Court (Grand Chamber) of 24 April 2018 in Case C-353/16, MP v. Secretary of State for the Home Department [online]. [cit. 2024-06-15]. Available at: https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX%3A62016CJ0353.

76 Ibid., para. 17. 77 Ibid., para. 19.

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