Germany - Administrative Court Baden-Württemberg, 6 March 2012, A 11 S 3070/11
| Country of Decision: | Germany |
| Country of applicant: | Afghanistan |
| Court name: | Administrative Court Baden-Württemberg |
| Date of decision: | 06-03-2012 |
| Citation: | A 11 S 3070/11 |
| Additional citation: | Asyl.net M19557 |
Keywords:
| Keywords |
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Assessment of facts and circumstances
Description
The duty of the state to carry out an individual assessment of all relevant elements of the asylum application according to the provisions of Article 4 of the Qualification Directive, including considering past persecution and credibility; and the duty of the applicant to submit as soon as possible all statements and documentation necessary to substantiate the application. |
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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.” |
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Indiscriminate violence
Description
Violence in situations of international or internal armed conflict which presents a serious and individual threat to a civilian's life or person for the purposes of determining the risk of serious harm in the context of qualification for subsidiary protection status under QD Art. 15(c). |
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Inhuman or degrading treatment or punishment
Description
A form of serious harm for the purposes of the granting of subsidiary protection. The Trial Chamber of the International Criminal Tribunal for the Former Yugoslavia in Celibici defined cruel or inhuman treatment as ‘an intentional act or omission, that is an act which, judged objectively, is deliberate and not accidental, that causes serious mental or physical suffering or injury or constitutes a serious attack on human dignity.’ “Ill-treatment means all forms of cruel, inhuman or degrading treatment or punishment, including corporal punishment, which deprives the individual of its physical and mental integrity." |
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Non-state actors/agents of persecution
Description
People or entities responsible for acts or threats of persecution, which are not under the control of the government, and which may give rise to refugee status if they are facilitated, encouraged, or tolerated by the government, or if the government is unable or unwilling to provide effective protection against them. |
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Personal circumstances of applicant
Description
The range of factors such as background, gender, age, and individual position which must to be taken into account in the assessment of an application for international protection per Article 4(3)(c) of the Qualification Directive. |
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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. |
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Subsidiary Protection
Description
The protection given to a third-country national or a stateless person who does not qualify as a refugee but in respect of whom substantial grounds have been shown for believing that the person concerned, 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, would face a real risk of suffering serious harm as defined in Article 15 of 2004/83/EC, and to whom Article 17(1) and (2) of 2004/83/EC do not apply, and is unable, or, owing to such risk, unwilling to avail himself or herself of the protection of that country.” “Note: The UK has opted into the Qualification Directive (2004/83/EC) but does not (legally) use the term Subsidiary Protection. It is believed that the inclusion of Humanitarian Protection within the UK Immigration rules fully transposes the Subsidiary Protection provisions of the Qualification Directive into UK law. |
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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.” |
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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.” |
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Individual threat
Description
An individual threat to a civilian's life or person must be proven in order to establish the serious harm required before an applicant will be eligible for subsidiary protection status on the grounds set out in QD Art. 15(c). “Risks to which a population of a country or a section of the population is generally exposed do normally not create in themselves an individual threat which would qualify as serious harm.” |
Headnote:
The actual risk of inhuman treatment or punishment by the Taliban because of desertion from one of their forced recruitment training camps can justify a deportation ban according to clause 60 (2) of the Residence Act (Article 15(b) of the Qualification Directive) in the case of Afghanistan.
Targeted criminal violence is defined in Article 15 (b) of the Qualification Directive (clause 60 (2) of the Residence Act) but not in Article 15 (c) of the Qualification Directive (clause 60 (7) p. 2 of the Residence Act), because in this context there is no specific risk of an internal armed conflict, i.e. “indiscriminate violence”.
Facts:
The Applicant, who was born in 1992, is an Afghan national of the Shiite faith and the Hazara ethnic group and originates from the Province of Ghazni. In February 2010, he travelled over land to the Federal Republic. He justified his asylum application as follows: the Taliban had recruited him by force in October 2009 by threatening his parents and took him to a training camp. He subsequently deserted the camp. With the help of his father, he fled to Germany via Pakistan. His parents were then forced to move for safety reasons from Ghazni to Kabul where they are still living today. He is afraid that he would be open to acts of revenge by the Taliban if he were to return to Afghanistan, particularly as he is known in Afghanistan as a prominent former member of the national wrestling team.
The authorities rejected the asylum application. In response to the claim presented against this decision, the Applicant obtained subsidiary protection according to Article 15 (c) of the Qualification Directive. The appeal by the authorities was directed against the latter.
Decision & reasoning:
Contrary to the assumption of the Administrative Court, the Applicant did not have the right to claim protection from deportation according to Article 15 (c) of the Qualification Directive. He did however have the right to claim protection from deportation according to Article 15 (b) of the Qualification Directive.
The subject of the appeal proceedings is the Applicant’s request for the granting of subsidiary protection from deportation. The Administrative Court granted subsidiary protection from deportation according to Article 15 (c) of the Qualification Directive. The matter in dispute could not, however, be limited to the question of granting of protection from deportation according to Article 15 (c) of the Qualification Directive because the granting of subsidiary protection from deportation according to Article 15 of the Qualification Directive constitutes a single matter of dispute which cannot be broken down any further. The Administrative Court was therefore entitled to verify the remaining basis for the claim in the appeal proceedings.
A deportation ban had been issued for the Applicant with regard to Afghanistan according to clause 60 (2) of the Residence Act (corresponding to Article 15 (b) of the Qualification Directive).
For the purpose of the establishment of a deportation ban according to clause 60 (2) of the Residence Act, Article 4 (4), Article 5 (1) and (2) and Articles 6 to 8 of the Qualification Directive apply according to clause 6 (11) of the Residence Act.
The Applicant benefited from the shifting of the burden of proof according to Article 4 (4) because he was recruited by the Taliban by force, deserted their training camp and was therefore faced with the real risk of inhuman punishment before leaving the country. The Applicant’s entire presentation was consistent and corresponded to existing documented information. It can therefore be assumed that he would again be exposed to a real risk of torture or inhuman or degrading treatment or punishment by the Taliban according to Article 3 of the European Convention on Human Rights if he were to return to Afghanistan. The Taliban are an organisation, which still controls a significant part of the national territory, namely parts of South and East Afghanistan. However, the Taliban are considered to be non-state actors according to Article 6 of the Qualification Directive against whom neither the Afghan state nor international organisations are currently in a position to offer adequate protection against persecution and serious harm. In this respect, there is actually a substantial probability of the real risk that the Applicant would suffer inhuman punishment by the Taliban if they were to catch up with him. A great deal has been reported about the type of forced recruitment, which the Applicant experienced. If he were to fall into the hands of the Taliban following his escape, he would experience drastic acts of revenge, which could go as far as execution according to the information currently available. According to the Taliban, opting out of the “Jihad” by means of escape was and still is considered to be the most serious crime and one, which is “deserving of death”. In the context of the conflicts, which are still raging above all in the south and east of the country and the “Jihad” which according to the Taliban is still underway, a deserter is still at risk of extremely harsh punishment even after many years. In the opinion of the Taliban, the Applicant has broken a religious law and has turned against Islam as a defector. A crime of this kind against Islam is not time-barred according to the Taliban. It would seem fairly probably that the Applicant would be recognised countrywide even after years of absence if he were to return to Afghanistan. The same applies to the risk that the Taliban would make an example of him even in Kabul. As has been seen in the recent spectacular attacks, the obviously well-organised arm of the Taliban which even infiltrates state structures still extends as far as Kabul. On the basis of the above, a deportation ban relating to Afghanistan is justified in this particular case for the Applicant according to clause 60 (2) of the Residence Act.
However, the Applicant does not have the right to claim subsidiary protection from deportation according to clause 60 (7) (2) of the Residence Act (corresponding to Article 15 (c) of the Qualification Directive).
Since the Applicant was living in the Province of Ghazni prior to his forced recruitment whilst his parents were living in Kabul, it could be questionable as to which location should apply in the question of whether an internal armed conflict existed at the time. Ultimately, in the case under consideration, the question could remain open as to whether Kabul or the Province of Ghazni should apply. The Applicant was not actually under serious threat to his life or physical condition as a result of indiscriminate violence from a legal point of view of either in Kabul or in the Province of Ghazni even considering his personal circumstances, which enhanced the risk. The term “indiscriminate” violence is to be understood in the sense of “general, non-targeted violence”. Article 15 (c) of the Qualification Directive is intended to protect members of the civilian population against the typical risks of war. The Applicant, however, does not essentially fear this type of general, non-targeted violence in returning to Afghanistan. Rather he fears the specific targeted violence of the Taliban directed against him as revenge for his desertion of their training camp. Targeted violence of his kind is described in Article 15 (c) of the Qualification Directive and therefore not in clause 60 (7) (2) of the Residence Act. Article 15 (b) of the Qualification Directive is applicable in this context.
Outcome:
The appeal by the authorities was rejected. The Applicant was granted subsidiary protection according to Article 15 (b) of the Qualification Directive.
Subsequent proceedings:
Unknown.
Relevant International and European Legislation:
Cited National Legislation:
Cited Cases:
| Cited Cases |
| Germany – Federal Administrative Court, 14 July 2009, 10 C 9.08 |
| Germany - Federal Administrative Court, 27 April 2010, 10 C 5.09 |
| Germany - Federal Administrative Court, 24 June 2008, 10 C 43.07 |
| Germany – Federal Administrative Court, 29 May 2008, 10 C 11.07 |
| Germany - Federal Administrative Court, 17 November 2011, 10 C 13.10 |
| Germany - High Administrative Court Hessen, 25 August 2011, 8 A 1657/10.A |
| Germany - Federal Administrative Court, 18 July 2006, 1 C 15.05 |
| Germany - Federal Administrative Court, 1 February 2007, 1 C 24.06 |
| Germany - Federal Administrative Court, 8 September 2011, 10 C 14.10 |
| CJEU - C-465/07 Meki Elgafaji, Noor Elgafaji v Staatssecretaris van Justitie |
| CJEU - C-175/08, C-176/08, C-178/08 and C-179/08, Aydin Salahadin Abdulla, Kamil Hasan, Ahmed Adem, Hamrin Mosa Rashi, Dier Jamal v Bundesrepublik Deutschland |
Other sources:
- Department for Foreign Affairs, progress report of 10.01.2012
- UNHCR, Guidance of 11.11.2011 on Afghanistan
- Dr. Danesch, report of 07.10.2010
- ai, report of 21.12.2010
- Kermani, Die Zeit of 05.01.2012
- Dolk, Asylmagazin 12/2011, 418ff.
- Treiber in ‘Gemeinschaftskommentar’ (legal commentary) Asylum Procedures Act (AsylVfG), 9/2007, § 13 Asylum Procedures Act (AsylVfG) marginal number 56ff.
- Renner/Bergmann, right of aliens, 9th edition 2011, clause 60 Residence Act (AufenthG) marginal number 34f. and 39ff.