Denmark - the Refugee Appeals Board’s decision of 6 February 2017
Keywords:
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Credibility assessment
Description
Assessment made in adjudicating an application for a visa, or other immigration status, in order to determine whether the information presented by the applicant is consistent and credible. |
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Crime against humanity
Description
"Any of the following acts when committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack: (a) Murder; (b) Extermination; (c) Enslavement; (d) Deportation or forcible transfer of population; (e) Imprisonment or other severe deprivation of physical liberty in violation of fundamental rules of international law; (f) Torture; (g) Rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization, or any other form of sexual violence of comparable gravity; (h) Persecution against any identifiable group or collectivity on political, racial, national, ethnic, cultural, religious, gender as defined in paragraph 3, or other grounds that are universally recognized as impermissible under international law, in connection with any act referred to in this paragraph or any crime within the jurisdiction of the Court; (i) Enforced disappearance of persons; (j) The crime of apartheid; (k) Other inhumane acts of a similar character intentionally causing great suffering, or serious injury to body or to mental or physical health." |
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Exclusion from protection
Description
Exclusion from being a refugee on any of the grounds set out in Article 12 of the Qualification Directive or exclusion from being eligible for subsidiary protection on any of the grounds set out in Article 17 of the Qualification Directive. |
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Persecution Grounds/Reasons
Description
Per Article 1A ofthe1951 Refugee Convention, one element of the refugee definition is that the persecution feared is “for reasons of race, religion, nationality, membership of a particular social group or political opinion“. Member States must take a number of elements into account when assessing the reasons for persecution as per Article 10 of the Qualification Directive. |
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Relevant Facts
Description
An assessment of an application for international protection must take into account all relevant facts, including those relating to: the country of origin at the time of taking a decision on the application, including laws and regulations of the country of origin and the manner in which they are applied; relevant statements and documentation presented by the applicant; the individual position and personal circumstances of the applicant; and other matters set out in Article 4 of the Qualification Directive |
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Serious non-political crime
Description
"This category does not cover minor crimes nor prohibitions on the legitimate exercise of human rights. In determining whether a particular offence is sufficiently serious, international rather than local standards are relevant. The following factors should be taken into account: the nature of the act, the actual harm inflicted, the form of procedure used to prosecute the crime, the nature of the penalty, and whether most jurisdictions would consider it a serious crime. Thus, for example, murder, rape and armed robbery would undoubtedly qualify as serious offences, whereas petty theft would obviously not. A serious crime should be considered non-political when other motives (such as personal reasons or gain) are the predominant feature of the specific crime committed. Where no clear link exists between the crime and its alleged political objective or when the act in question is disproportionate to the alleged political objective, non-political motives are predominant. The motivation, context, methods and proportionality of a crime to its objectives are important factors in evaluating its political nature. The fact that a particular crime is designated as non-political in an extradition treaty is of significance, but not conclusive in itself. Egregious acts of violence, such as those commonly considered to be of a ‘terrorist’ nature, will almost certainly fail the predominance test, being wholly disproportionate to any political objective. Furthermore, for a crime to be regarded as political in nature, the political objectives should be consistent with human rights principles." |
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War crimes
Description
"(a) Grave breaches of the Geneva Conventions of 12 August 1949, as defined in Article 8(2a) of the Rome Statute of the International Criminal Court; and (b) Other serious violations of the laws and customs applicable in international armed conflict, within the established framework of international law, as defined in Article 8(2b) of the Rome Statute of the International Criminal Court." |
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Refugee Status
Description
The recognition by a Member State of a third-country national or stateless person as a refugee. |
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Political Opinion
Description
One of the grounds of persecution specified in the refugee definition per Article 1A ofthe1951 Refugee Convention. According to the Qualification Directive the concept of political opinion includes holding an opinion, thought or belief on a matter related to potential actors of persecution and to their policies or methods, whether or not that opinion, thought or belief has been acted upon by the applicant. |
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Real risk
Description
In order to be eligible for subsidiary protection, a third country national or stateless person must demonstrate that if returned to his or her country of origin, or in the case of a stateless person, to his or her country of former habitual residence, s/he would face a real risk of serious harm as defined in QD Art. 15 and that s/he is unable, or owing to such risk, unwilling to avail her/himself of the protection of that country. The fact that an applicant has already been subject to persecution or serious harm or to direct threats of such persecution or such harm, is a serious indication of the applicant's well-founded fear of persecution or real risk of suffering serious harm, unless there are good reasons to consider that such persecution or serious harm will not be repeated. |
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Internal armed conflict
Description
“A conflict in which government forces are fighting with armed insurgents, or armed groups are fighting amongst themselves.” |
Headnote:
The applicant, who had deserted the Syrian army, was seen in isolation covered by the Danish Aliens Act Art. 7 (1) [refugee status]. However, the Board found serious reasons to assume that the applicant had committed a crime against humanity and war crimes during his military service and consequently he was excluded from protection. Nevertheless, the Danish Aliens Act Art. 31, (2) is an obstacle to his expulsion as he would risk persecution covered by the Danish Aliens Act Art. 7 (1) in the case of returning to Syria.
Facts:
The applicant, born in 1990, is an ethnic Kurd and a Muslim from Qamishli, Syria. He entered Denmark in September 2015 and applied for refugee status. He stated that he feared if he returned to Syria he would be executed by the Syrian authorities as he deserted the Syrian Army.
In support of his application he referred to having completed his compulsory military service from 2009 to 2011. The applicant was then recalled for military service in 2013 and participated in the Syrian army’s battles against The Free Syrian Army and ISIL. During these battles, he participated in looting civilians and burning down civilian houses. He further participated in taking civilian and militant prisoners who were submitted to torture.
In June 2016, the applicant was convicted by the Court in Sønderborg for arson (the Danish Penal Code Art. 181) and for several times having threatened the asylum centre staff with a knife (the Danish Penal Code Art. 266). He was sentenced 10 months in prison, deportation and exclusion for 6 years (the Danish Aliens Act Art. 24, no. 1, cf. Art. 22, no. 6., cf, Art. 32, (3).
In December 2016, the High Court (Vestre Landsret) upheld the judgment and, referring to an additional legal psychiatric statement, added that the applicant was covered by the Danish Penal Code Art. 69 (commitment to custody).
The Danish Immigration Service rejected the asylum application in October 2016.
Decision & reasoning:
The account of the applicant has been established by the Refugee Appeals Board.
The board accepted that the applicant during two to three years of military service as a private in Homs participated in combat and looting of civilians, burning down civilian houses and taking both civilian and military prisoners. Further, that he was aware of the fact that at least military prisoners were tortured and that he participated in mutilation of the dead bodies of the soldiers from the Free Syrian Army.
The Board upheld the decision of the Danish Immigration Service that the applicant was covered by the Danish Aliens Act Art. 7, (1) [refugee status].
The Board then turned to the question whether the applicant based on his acts during combat and other military service in the Syrian army was excluded from protection according to the Danish Aliens Act Art. 10, (1), no. 3, cf. The 1951 Refugee Convention Art. 1F (a) and 1F (b).
The Board referred to the UNHCR Background Note on the Application of the Exclusion Clauses: Article 1F of the 1951 Convention relating to the status of Refugees from 4 September 2003 which states: “… 51. In general, individual responsibility, and therefore the basis for exclusion, arises where the individual committed, or made a substantial contribution to, the criminal act, in the knowledge that his or her act or omission would facilitate the criminal conduct. Thus, the degree of involvement of the person concerned must be carefully analyzed in each case… Apart from actual commission of the crime, criminal acts may include ordering, solicitation, inducement, aiding, abetting, contribution to a common purpose, attempts and, in the case of genocide, incitement to commit a crime … 53. … Aiding or abetting … requires the individual to have rendered a substantial contribution to the commission of a crime in the knowledge that this will assist or facilitate the commission of the offence. The contribution may be in the form of practical assistance, encouragement or moral support and must have a substantial (but not necessarily causal) effect on the perpetration of the crime. … Thus, presence at the scene of a crime is not in itself conclusive of aiding or abetting, but it could give rise to such liability if such presence is shown to have had a significant legitimising or encouraging effect on the principal actor. This may often be the case where the individual present is a superior to those committing the crimes … 55. Whether the individual’s contribution to the criminal enterprise is substantial or not depends on many factors, such as the size of the criminal enterprise, the functions performed, the position of the individual in the organisation or group, and (perhaps most importantly) the role of the individual in relation to the seriousness and the scope of the crimes committed…”
Based on an overall assessment of the applicants acts during military service the Board found serious reasons to assume that the applicant had committed a crime against humanity and war crimes as these are defined in international law and covered by the 1951 Convention Art. 1 F (a). The fact that the applicant only was a private cannot lead to another result. The Board notes the applicant was a grown man when he committed the crimes.
Consequently, according to the Danish Aliens Act Art. 10, (1), no. 3, cf. the 1951 Convention Art. 1 F (a) the applicant cannot be granted refugee status.
The fact that the applicant was forced to carry out some of the acts and that superiors from the army supervised his acts cannot be given decisive importance when assessing the question of exclusion from protection.
The Board found that the Danish Aliens Act Art. 31, (2) is an obstacle, however, to the expulsion of the applicant, who seen in isolation is covered by the Danish Aliens Act Art. 7, (1). The Board therefore upheld the decision of the Danish Immigration Service.
Outcome:
The applicant was excluded from protection according to the Danish Aliens Act Art. 10, (1), no. 3, cf. the 1951 Convention Art. 1 F (a), however, the Danish Aliens Act Art. 31, (2) is an obstacle to the expulsion.
Cited National Legislation:
Other sources:
UNHCR Background Note on the Application of the Exclusion Clauses: Article 1F of the 1951 Convention relating to the status of Refugees from 4 September 2003.