Belgium – Council for Alien Law Litigation, 13 January 2011, Nr. 54.335
Keywords:
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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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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. |
Headnote:
This Case concluded that membership of a terrorist organisation is not in itself a sufficient ground for exclusion from refugee status.
Facts:
The applicant, a Moroccan national, filed an appeal against a decision of the Office of the Commissioner General for Refugees and Stateless Persons (CGRS) in which he was excluded from refugee status and subsidiary protection status on the basis of Art 1F(c) of the 1951 Refugee Convention. Referring to the applicant’s recent conviction to 6 years imprisonment for having participated, as a leading member, in the activities of a terrorist group, the CGRS found that there were serious reasons to believe that the applicant was “guilty of acts contrary to the purposes and principles of the United Nations” and should therefore be excluded from protection.
Decision & reasoning:
The CALL stated that the interpretation of the Belgian provisions must be in conformity with the provisions of the Qualification Directive and the 1951 Refugee Convention (reference made to recitals 3, 16 and 17 of the Directive, as well as to the “Salahadin Abdulla” and “Bolbol” rulings of the European Court of Justice). Based on a joint reading of Art 12.2(c) and Recital 22 of the Qualification Directive, the CALL found that the European legislator considered that terrorist acts could constitute acts contrary to the purposes and principles of the United Nations, but, referring to the UNHCR comments to the Qualification Directive, the CALL also found that the application of the exclusion clause should be limited to “terrorist acts that constitute a threat to international peace and security as the perpetrator commits those acts with the aim to seriously intimidate a population or seriously destabilise or destroy the fundamental political, constitutional, economic or social structures of a country or international organisation.” Thus, there is a requirement of gravity.
In the case at hand the applicant had been convicted of “being a member of a terrorist group.” The applicant argued that such membership was not sufficient in itself to justify the application of the exclusion clause. To resolve this issue the CALL relied on the European Court of Justice ruling in “B and D v Germany” and found that 2 conditions should be met for the participation in a terrorist organisation to lead to exclusion: it should be determined (1) whether the terrorist organisation committed acts that meet the conditions laid down in Art 12.2(b) or (c) of the Qualification Directive, and (2) whether individual responsibility for carrying out those acts can be attributed to the person concerned, regards being had to the standard of proof required under Art 12.2 of the Qualification Directive. On this basis the CALL concluded that the membership of a terrorist organisation in itself is not a sufficient ground for applying the exclusion clause of Art 12.2(c) of the Qualification Directive or Art 1F(c) of the 1951 Refugee Convention. The fact that, under Belgian law, such membership in itself is considered a crime is irrelevant.
In the case at hand, the CALL found that the applicant’s conviction for membership of a terrorist organisation was not sufficient to justify the application of the exclusion clause. However, the CALL also found that the initial judgment (in which the applicant was convicted) did not allow the precise facts of the case to be determined and it was difficult to identify whether the above two conditions were met. The case-file had no further information on the facts. Further investigation was therefore needed.
Outcome:
The decision of the CGRS was quashed and the case was sent back to the CGRS for a new decision.
Subsequent proceedings:
This judgment, No. 54335, is the first in a line of many.
In a second judgment, No. 57261 dated 03-03-2011, the CALL quashed the decision taken by the CGRS implementing the judgment No. 54335. The CGRS excluded the Applicant from refugee status, emphasising as ‘specific individual facts’ the carrying out of a suicide attack against multinational forces in Iraq by a member of the terrorist organisation led by the Applicant. Regretting that ‘no indication has, however, been given as to the source of this information, the date, the seriousness or the circumstances of the event’, the CALL again quashed the CGRS’s decision and sent the case back to the CGRS to obtain more information.
In a third judgment, No. 64356 dated 01-07-2011 , the CALL was not satisfied with the further information supplied by the CGRS to justify its third consecutive decision to refuse refugee status. The CGRS emphasised the fact that the terrorist cell led by the Applicant in Belgium was part of a group responsible for attacks in Morocco, the GICM (Moroccan Islamic Combatant Group). Holding that the CGRS’s decision did not specify the support lent by the Belgian GICM cell to the attacks committed in Morocco, the CALL held that the Applicant’s refugee status should be recognised.
The CGRS lodged an appeal on points of law to the Council of State against judgment No. 64356 dated 01 July2011. By a judgment No. 220.321 dated 13 July2012, the Council of State set aside the CALL’s judgment No. 64356 on formal grounds connected with the reasoning of the judgment (contradiction in the grounds; misinterpretation of the judgment relating to the criminal conviction). The CALL would need to re-determine the case.
In the fourth judgment, No. 96933, which is the subject of this summary, the CALL attempted to comply with the Council of State’s requirements while confirming the recognition of the Applicant’s refugee status. The CALL held that neither the acts committed by the terrorist organisation led by the Applicant, nor the acts committed by the Applicant personally, were of a sufficient seriousness to be considered acts contrary to the purposes and principles of the United Nations. The CALL recognised his refugee status.
A fresh appeal on points of law to the Council of State was lodged by the CGRS against judgment No. 96933. That appeal is pending.