Finland - Supreme Administrative Court, 3 April 2008, KHO:2008:21
| Country of Decision: | Finland |
| Country of applicant: | Afghanistan |
| Court name: | Supreme Administrative Court |
| Date of decision: | 03-04-2008 |
| Citation: | KHO:2008:21 |
Keywords:
| Keywords |
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Benefit of doubt
Description
The advantage derived from doubt about guilt, a possible error, or the weight of evidence. “When statements are not susceptible of proof, even with independent research, if the applicant's account appears credible, he should, unless there are good reasons to the contrary, be given the benefit of the doubt. The requirement of evidence should thus not be too strictly applied in view of the difficulty of proof inherent in the special situation in which an applicant for refugee status finds himself. Allowance for such possible lack of evidence does not, however, mean that unsupported statements must necessarily be accepted as true if they are inconsistent with the general account put forward by the applicant." |
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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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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." |
Headnote:
This case concerned the exclusion from refugee status of a Taliban informer. The Supreme Administrative Court did not apply the exclusion clause in Art IF(b) (corresponding to § 87 paragraph 2 of the Finnish Aliens Act).The Court held that exclusion clauses must be interpreted in the narrowest possible manner.
Facts:
The applicant, a citizen of Afghanistan, claimed he feared persecution in Afghanistan as a result of his collaboration with the Taliban administration; he had been an informer for the Taliban and stated that he gave the Taliban the name of six former Wahdat commanders.
The Finnish Immigration Service found that the applicant was in need of international protection (according to Art 88 of the Aliens Act) and could be granted a residence permit on this basis. However, the Immigration Service held that the applicant had, through his own actions, assisted the Taliban administration in carrying out serious human rights violations, which according to the Immigration Service constituted a serious crime according to Art 1F(b) of the 1951 Refugee Convention, therefore a residence permit could not be granted as per §87 paragraph 2 of the Aliens’ act.
On appeal the Administrative Court held that there was no indication of a serious non-political crime as mentioned in §87 paragraph 2 of the Aliens’ act or Art1(F)b of the Refugee Convention having taken place, therefore the exclusion clause in §87 paragraph 2 of the Aliens’ Act could not be applied to the applicant. The decision was appeal to the SAC.
Decision & reasoning:
The Supreme Administrative Court stated that being charged with a crime as mentioned in the exclusion clause is not a prerequisite for the application of the exclusion clause. Even if this were not so, the in “dubio pro reo” principle of general criminal law should be used as a guide. Similarly, refugee law gives significance to the principle of the benefit of doubt when evaluating evidence. Following from these principles, when deciding to apply the exclusion clause in borderline cases, the decision made should be against the use of the exclusion clause, rather than for it.
Complicity in committing murder can be considered a serious non-political crime according to §87 section 2 subsection 2 of the Aliens Act. As for the applicant’s alleged crime, evidence has not been presented which would warrant a separate evaluation of whether or not it could be seen as a political crime.
The Supreme Administrative Court noted, as did the Administrative Court, that the applicant stated during the asylum interview with the Immigration Service that he had himself decided to give the Taliban information about local Mujahedeen chiefs. In the applicant’s case, the possibility of the applicant having been coerced into giving the list of names was emphasized. This must be taken into account when assessing the degree the applicant was personally responsible for giving the list to the Taliban.
The fact that the Taliban carried out numerous acts of violence and other serious human rights violations throughout their reign during the civil war cannot be considered as having automatically lead to the deaths or inhuman treatment of the people revealed to the Taliban by the applicant. Further, there was no evidence of any person being killed by the Taliban due to the applicant’s denunciation.
The Court held that there was no justifiable reason to suspect the applicant committed a serious non-political crime according §87 section 2 subsection 2 before he came to Finland as a refugee.
Outcome:
The decision of the Helsinki Administrative Court was upheld.
Observations/comments:
Case available on the website of the Supreme Administrative Court - http://www.kho.fi/paatokset/42908.htm