Germany - High Administrative Court of Sachsen, 12 December 2011, A 3 A 292/10
Keywords:
| Keywords |
|
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. |
|
Individual assessment
Description
The carrying out of an assessment on an individual and personal basis. In relation to applications for international protection, per Article 4(3) of the Qualification Directive, this includes taking into account: (a) all relevant facts as they relate to the country of origin at the time of taking a decision; (b) the relevant statements and documentation presented by the applicant; “(c) the individual position and personal circumstances of the applicant, including factors such as background, gender and age, so as to assess whether, on the basis of the applicant's personal circumstances, the acts to which the applicant has been or could be exposed would amount to persecution or serious harm; (d) whether the applicant's activities since leaving the country of origin were engaged in for the sole or main purpose of creating the necessary conditions for applying for international protection, so as to assess whether these activities will expose the applicant to persecution or serious harm if returned to that country; (e) whether the applicant could reasonably be expected to avail himself of the protection of another country where he could assert citizenship.” |
|
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." |
|
Standard of proof
Description
The degree or level of persuasiveness of the evidence required in a specific case. For example, in the refugee context, ‘well-founded’ is a standard of proof when assessing the fear of persecution. |
|
Torture
Description
“Any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him/her or a third person information or a confession, punishing him/her for an act s/he or a third person has committed or is suspected of having committed, or intimidating or coercing him/her or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions.” |
|
Terrorism
Description
Any act intended to cause death or serious bodily injury to a civilian, or to any other person not taking an active part in the hostilities in a situation of armed conflict, when the purpose of such act, by its nature and context, is to intimidate a population, or to compel a government or an international organization to do or abstain from doing an act. |
|
Acts contrary to the purposes and principles of the UN
Description
Extreme activity with an international dimension committed by persons who have been in positions of power in a state or state-like entity and which attacks the very basis of the international community's coexistence. May include crimes capable of affecting international peace, security and peaceful relations between states, as well as serious and sustained violations of human rights. |
Headnote:
Exclusion from refugee protection on the grounds of "serious non-political crime" or of "acts against the purposes and principles of the United Nations", cannot solely be based on the fact that an applicant has been a supporter or a member of an organisation which has been classified as terrorist. There must be serious reasons to justify the assumption that the applicant was personally involved in the commission of such crimes.
Facts:
The applicant is of Kurdish ethnicity. He applied for asylum in April 2005 and claimed that he fled Turkey in 1993 and joined the PKK in Northern Iraq. Until 2004 he had been active for the PKK as an interpreter and agitator. When the PKK resumed the armed struggle in the summer of 2004, he decided to abandon the organisation. He had applied for a permission to leave to the PKK leadership, but this application was rejected. Therefore, he had fled in January 2005. He claimed that he never participated in military actions of the PKK, nor did he hold a senior position. Nevertheless, he was at risk of persecution.
The authorities rejected his asylum application since they did not consider the applicant’s statement to be credible. Upon appeal, the Administrative Court of Chemnitz required the authorities in May 2008 to grant refugee status. The authorities filed a further appeal (Berufung) against this decision at the High Administrative Court, arguing that the exclusion ground of a serious non-political crime applied, since the PKK had carried out terrorist acts as part of its campaign during the period when the applicant was a member. The applicant had a shared responsibility for this since he did not only execute subordinate tasks for the PKK.
Decision & reasoning:
The authorities' further appeal to the High Administrative Court (Berufung) was dismissed. The High Administrative Court proceeded from the assumption that the applicant would face a considerable risk of persecution in case of a return to Turkey. It is most probable that his name is registered in the list of wanted persons and therefore, he would be detained the moment he tried to enter Turkey. In detention, he would be at risk of treatment incompatible with human rights standards.
The High Administrative Court found that the exclusion grounds of a “serious non-political crime” or acts against the “principles and purposes of the United Nations” are not applicable. The interpretation of these exclusion grounds has to take into account Art. 12 of the Qualification Directive.
The assumption that a person participated in serious non-political crimes cannot solely be based on the fact that this person supported an organisation which has committed terrorist acts. Rather, there have to be well-substantiated reasons for the assumption that the person has been individually responsible. A person in a prominent position within the organisation can imply that he/she was individually responsible for the acts of this organisation; however, an evaluation of all relevant facts is still necessary (CJEU Germany v B and D, 9 November 2010, C-57/09 and C-101/09, paragraph 96 through 98).
Individual responsibility requires a responsibility according to criminal law definitions. However, in comparison to a criminal conviction, the standard of proof is lower when it comes to establishing an exclusion ground. The term “participation” in refugee law corresponds to the term “accessory” in criminal law, which means that the participation must have a sufficient impact on the commission of a serious non-political crime.
Acts of international terrorism are always contrary to the purposes and principles of the United Nations. Support of such acts can lead to the exclusion of persons who did not have a prominent position in a state or a state-like organisation and did not commit crimes themselves. However, even in such cases the individual contribution to a crime has to be established in order to substantiate the responsibility of the person concerned.
Taking into account these standards, the applicant did not participate in acts that lead to an exclusion from refugee protection. While it is true that the PKK committed terrorist acts and violent acts against the civilian population at the time when the applicant was a member, the applicant himself has not been involved in such acts in a manner relevant to criminal liability, nor did he assist in such acts in a way that could be regarded as sufficient for criminal liability.
Outcome:
The appeal of the authorities (Berufung) was dismissed; the decision of the Administrative Court, according to which the applicant is entitled to refugee status, was upheld.
Subsequent proceedings:
Unknown
Relevant International and European Legislation:
Cited Cases:
| Cited Cases |
| Germany - Federal Administrative Court, 7 July 2011, 10 C 26.10 |
| Germany - Federal Administrative Court, 31 March 2011, 10 C 2.10 |
| Germany - Federal Administrative Court, 14 October 2008, 10 C 48.07 |
| Germany - High Administrative Court Niedersachsen, 11 October 2010, 11 LB 405/08 |
| Germany - High Administrative Court Niedersachsen, 15 December 2010, 11 LA 495/10 |
| Germany - High Administrative Court Nordrhein-Westfalen, 09 March 2011, 11 A 1439/07.A |
| Germany - High Administrative Court Rheinland-Pfalz, 14 October 2011, 10 A 10416/11 |
| Germany - High Administrative Court Schleswig-Holstein, 06 October 2011, 4 LB 5/11 |