Germany – High Administrative Court Niedersachsen, 11 August 2010, 11 LB 405/08

Facts:

The applicant, who was born in 1982, applied for asylum in Germany in 1999. He stated that he had been arrested in Turkey in the summer of 1998 for publicly hanging up pictures of Abdullah Öcalan. He claimed to have suffered serious abuse in police custody. In April 2000 he was granted asylum (under the German constitution) and refugee status.

In August 2004, he was convicted to a juvenile sentence of three and a half years for causing grievous bodily harm.

In June 2006, the German authorities revoked their decisions on asylum and refugee status, claiming that the human rights situation in Turkey had improved and therefore the applicant had no reason to fear persecution as his political activities had been insignificant and had taken place a long time ago. Neither did he have to fear persecution because of his family ties to other activists.

In July 2008, the Administrative Court Hannover dismissed the appeal against the revocation, the High Administrative Court Niedersachsen granted leave for a further appeal against this decision.

Decision & reasoning:

It was held that the transposition of the Qualification Directive has not changed the legal situation in such a way that the revocation of asylum and refugee status could now be based on a juvenile conviction and sentence. 

Art 14.4 and 14.5 of the Qualification Directive are optional provisions which can be deviated from in cases of persons who are not convicted as adult offenders. This is the case in Germany, because Section 60 (8) of the Residence Act does allow for the revocation of refugee status only in cases of persons, who were sentenced to at least three years in prison. This does not include convictions to juvenile sentences (Federal Administrative Court, judgment of 16 November 2000 – 9 C 4.00 -).

Moreover, exclusion from refugee status based on Art 12.2 of the Qualification Directive is not justified since shouting slogans and posting bills in favour of the PKK cannot be considered as instances of aiding and abetting terrorist activities. Such forms of actions neither facilitate criminal acts by the PKK nor do they represent an essential part of such crimes. Such an extensive interpretation of the exclusion clause within the meaning of Art 12.3 of the Qualification Directive is not permissible.

A revocation because of minor changes regarding the standard of probability or the standard of proof because of the Qualification Directive is not possible, because these provisions of the Directive may not be applied retroactively (Art 14.1); one exception to this rule is Art 14.3 of the Qualification Directive, the conditions of which, however, are not met in the present case.

Therefore, as a legal basis for the revocation only Art 73 (1) Law on Asylum Proceedings (circumstances ceased to exist) is worth considering. However, despite political reforms in Turkey, minors are still prosecuted for supporting the PKK. There are still cases of physical abuse in police custody. The reform efforts of the government, especially the "Kurdish initiative", are not supported sufficiently by the state apparatus. The situation has further deteriorated especially after the PKK’s resumption of armed assaults in June 2010. The risk of persecution has decreased as a result of the passage of time, but not to the extent necessary for revocation.

Therefore, a significant and sustainable improvement of circumstances - generally in the country of origin or individually - cannot be assumed.

Outcome:

The High Administrative Court did not grant a further review/”Revision” by the Federal Administrative Court.