Germany - Administrative Court Köln, 21 June 2011, 20 K 6194/10.A
Keywords:
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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-refoulement
Description
A core principle of international Refugee Law that prohibits States from returning refugees in any manner whatsoever to countries or territories in which their lives or freedom may be threatened. Note: The principle of non-refoulement is a part of customary international law and is therefore binding on all States, whether or not they are parties to the Geneva Convention. |
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Serious harm
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. Per Art.15:"(a) death penalty or execution; or (b) torture or inhuman or degrading treatment or punishment of an applicant in the country of origin; or (c) serious and individual threat to a civilian's life or person by reason of indiscriminate violence in situations of international or internal armed conflict." “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.” |
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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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Subsequent application
Description
Where a person who has applied for refugee status in a Member State makes further representations or a subsequent application in the same Member State. Member States may apply a specific procedure involving a preliminary examination where a decision has been taken on the previous application or where a previous application has been withdrawn or abandoned. As with all aspects of the procedures directive, the same provisions will apply to applicants for subsidiary protection where a single procedure applies to both applications for asylum and subsidiary protection. |
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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. |
Headnote:
The court found that a prohibition of deportation under Section 60 (2) of the Residence Act (corresponding to Art. 15 (b) of the Qualification Directive) was established due to the existence of a general risk of persecution in case of return to Syria. The Administrative Court, in their assessment of risk, went far beyond the prevailing case law, particularly that of the High Administrative Courts.
A particular mode of persecution cannot be detected in Syria due to the arbitrariness and the juxtaposition of different intelligence services, whose impact cannot be predicted.
A further deterioration of the situation has occurred in light of recent developments and the bloody suppression of the protest movements.
Currently even persons who have not been politically active in exile are, with considerable probability, at risk of being arrested on return, not only for a short period - they are also at risk of torture and other inhuman treatment.
Facts:
The applicants are Syrian citizens of Arab ethnicity and Christian religion. They are a married couple. They came to Germany in the year 2000 and 2001 respectively and applied for asylum. They did not claim to have carried out any political activities in Syria. Their applications were rejected. A subsequent application filed by the first applicant was dismissed. In December 2009, both applicants filed (another) subsequent application arguing that after their long stay abroad and due to their asylum application combined with the experience of returnees after the 2009 German-Syrian readmission agreement, they would be at risk according to Section 60 (1) to (7) of the Residence Act in case of return. The application was rejected by decision of 29 September 2010. The applicants appealed this decision. However, the appeal was limited in scope to the examination of the prohibition of deportation under Section 60 (2) Residence Act (corresponding to Art. 15 (b) of the Qualification Directive).
Decision & reasoning:
The court stated:
In interpreting Section 60 (2) of the Residence Act article 19.2 of the Charter of Fundamental Rights has to be considered. The applicable standard of probability follows from the case law of the European Court of Human Rights on Art. 3 of the ECHR whereby a “real risk” has to be demonstrated by establishing “substantial grounds for believing”. In this context, the intensity of the imminent violation in a particular case has to be taken into consideration. The greater the risk of a violation of rights, the less weight should be accorded to its actual occurrence. The principle of reasonableness is decisive.
According to widely accepted information, returnees to Syria are first of all questioned by the secret services about their stay abroad and the reasons for their deportation. The interrogation can last several hours. The extent to which a returnee, without further particular personal circumstances, is at risk of being arrested for a longer period of time, typically combined with torture and other inhuman treatment, is disputed in the case law in light of the developments which have occurred since 2009 under the bilateral readmission between Germany and Syria, which entered into force on the 3 of January 2009.
Most courts assume that incidents involving the detention of returnees as described in recent reports from 2009 and early 2010 do not justify the conclusion that now every Syrian citizen is at a real risk of detention for an extended period of time or of being exposed to physical mistreatment, solely as a result of their asylum application or a long stay in Germany.
These courts argue that there will be a significantly probable risk of political persecution only if further circumstances exist which may raise the Syrian secret services’ suspicion or the persons in question were engaged politically in Syria or abroad against the Syrian regime. Thus, unless there is political commitment by the person concerned or their close relatives, it might be necessary to consider further risk factors that have to be evaluated individually. The requirements for the assumption of such risk aggravating factors are being lowered due to the current situation.
Some courts assume that, considering the number of disclosed detentions and the manifested arbitrariness against detainees, it is considerably probable that the persons concerned are at risk of being arrested and subjected to inhuman treatment in case of return to Syria, solely due to their asylum application and their stay in Germany.
In a new report by the asylum authorities released in April 2011, cases of arrest are mentioned. According to this report, one has to assume that the risk of arrest and detention for a longer period of time (more than two weeks) now cannot be ruled out for persons who: have committed crimes abroad, even if they were already convicted abroad; have been politically active in exile, even if they merely participated in demonstrations and even if this occurred a long time ago; and finally in cases of persons who left Syria illegally and who have been sent back without Syrian travel documents. The asylum authorities themselves in their assessment of risk, go far beyond the prevailing case law, especially that of the High Administrative Courts.
In view of the foregoing, the court is convinced that currently there is credible evidence that Syrian expatriates are arbitrarily arrested by Syrian authorities upon return.
Furthermore, there is increasing evidence that even in case of an arrest of less than two weeks, mistreatment, including the use of torture, takes place. A particular mode of persecution cannot be detected, due to the prevailing arbitrariness and the juxtaposition of different intelligence services, whose impact cannot be predicted. A further deterioration of the situation has now occurred due to the latest developments and the bloody suppression of the protest movements in Syria. Now, even persons who have not been politically active in exile are at risk of being arrested in case of return, not only for a short period, and there is considerable probability that detention is combined with torture and other inhuman treatment.
The court is convinced that with regard to the applicants this risk is increased since they have been living in Germany for ten years and they presumably left Syria illegally. They belong to the group of persons whose long-term arrest, according to the evaluation by the asylum authorities in the aforementioned report of April 2011, cannot be ruled out.
Outcome:
The authorities were required to determine that a prohibition on deportation under Section 60 (2) of the Residence Act was established (that the applicants cannot be deported to Syria).
Relevant International and European Legislation:
Cited Cases:
| Cited Cases |
| Germany - Federal Administrative Court, 27 April 2010, 10 C 5.09 |
| Germany - Administrative Court Chemnitz, 15 October 2010, A 5 K 980/10 |
| Germany - Administrative Court Düsseldorf, 24 September 2010, 21 K 4217/09.A |
| Germany - Administrative Court Freiburg, 20 July 2010, A 5 K 683/09 |
| Germany - Administrative Court Karlsruhe, 17 August 2010, A 8 K 792/10 |
| Germany - Administrative Court Köln, 28 October 2010, 20 K 8637/09.A |
| Germany - Administrative Court Meiningen, 01 April 2010, 8 K 2040/09 |
| Germany - Administrative Court Meiningen,15 April 2010, 8 K 20176/09.Me |
| Germany - Administrative Court Regensburg, 10 March 2011, RO 6 K 10.30350 |
| Germany - Administrative Court Stuttgart, 06 May 2011, A 7 K 510/09 |
| Germany - High Administrative Court Nordrhein-Westfalen, 15 April 2010, 14 A 729/10.A |
| Germany - High Administrative Court Nordrhein-Westfalen, 19 April 2010, 14 A 237/10.A |
| Germany - High Administrative Court Nordrhein-Westfalen, 02 May 2011, 14 A 958/11.A |
| Germany - High Administrative Court Saarland, 30 August 2010, 3 A 121/10 |
| Germany - High Administrative Court Sachsen, 21 February 2011, A 5 A 444/08 |
Other sources:
- Bilateral Readmission Agreement between the Federal Republic of Germany and Syria, Federal Law Gazette II 2008, pp. 811, 2009 S. 107
- Kurdwatch, Report of 14 April 2011 (Damascus: Deportee from Germany arrested in Damascus)
- Kurdwatch, Report of 28 April 2011 (Damascus: Deportee released following torture); both reports can be found at www.kurdwatch.org
- Comments of the European Centre for Kurdish Studies (EZKS) on 25/11/2009 and on 14/02/2010.