Belgium – Council for Alien Law Litigation, 27 April 2009, Nr. 26.511
| Country of Decision: | Belgium |
| Country of applicant: | Afghanistan |
| Court name: | Council for Alien Law Litigation |
| Date of decision: | 27-04-2009 |
| Citation: | Nr. 26.511 |
| Additional citation: | Published in: T. Vreemd, 2009, nr. 3, p. 230 |
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. |
Headnote:
The CALL ruled that exclusion clauses are exceptional provisions with very serious consequences and should therefore be applied in a restrictive manner. There is a presumption of responsibility vis-à-vis persons holding high positions in a regime that is guilty of committing serious human rights violations, but such a presumption is refutable. It does not suffice to refer to the general situation in the country of origin at the time when the applicant held the position.
Facts:
The applicant, an Afghan national, had been an active member of the “People’s Democratic Party of Afghanistan” for a number of years and held several top positions in the regime. After the fall of that regime he fled to Russia and obtained refugee status there. In 2005, during a visit in Belgium, Russia revoked his status. He filed an application for asylum in Belgium but it was denied. The CGRS ruled that the applicant had a well-founded fear of persecution, but that he had to be excluded from protection on the basis of Art 1F(a) of the 1951 Refugee Convention. According to the Office of the Commissioner General for Refugees and Stateless Persons (CGRS) the applicant had played a leading and determining role in the political and military structure of the regime for several decades, and there were serious indications that the applicant, through these positions, was (co-) responsible for committing or facilitating the extensively documented serious human rights violations of the regime. The applicant filed an appeal against this decision.
Decision & reasoning:
The CALL accepted that it was established that the applicant had a well-founded fear of persecution. The CALL, however, emphasised that Art 1F(a) of the 1951 Refugee Convention is an exceptional provision with very serious consequences that it should be applied with the utmost caution and in a restrictive manner. Its application could lead to the establishment of facts and their qualification as crimes without the intervention of a judicial body and without a further legal remedy. The exclusion clause should therefore not be applied on the mere basis of information regarding the general situation in Afghanistan at the moment that the applicant held his positions.
The CALL then examined in detail what was entailed in the different positions the applicant held in the past and found that those were of a rather ideological nature. According to the CALL it could not be established that the applicant was implicated as a perpetrator of human rights violations, or that he would have covered up or encouraged those violations through his position, or that he was associated with those violations in any other manner. The CALL found that, whilst there is a presumption of responsibility vis-à-vis persons holding a high position within a regime that commits serious human rights violations, such a presumption is refutable. In the case at hand the applicant refuted the presumption.
Outcome:
The decision of the CGRS was overturned and refugee status granted.