Germany - Federal Administrative Court, 27 April 2010, 10 C 5.09

Facts:

The applicant was a Turkish citizen of Kurdish ethnicity. He applied for asylum in November 2004, explaining he had participated in the armed struggle of the PKK (Kurdish Workers Party). According to his statement, he was arrested in June 1991 and interrogated under torture by Turkish security forces. He was sentenced to twelve years and six months in prison but was released early in December 2000. He initially re-joined the PKK, but left the organisation in July 2004 as he had doubts about its political cause. In spite of the Turkish amnesty law for former PKK members, he claimed to be at risk as he did not perform his military service and therefore was wanted by the Turkish security forces. Furthermore, the security forces were aware that he had re-joined the PKK following his release from prison.  

The German authorities rejected the asylum application as "manifestly unfounded" in July 2005, finding that the applicant had committed a serious non-political crime and was guilty of acts contrary to the purposes and principles of the United Nations.

The Administrative Court of Würzburg cancelled the decision by the German authorities in November 2005 and asked the authorities to grant refugee status. The High Administrative Court in Bavaria in turn revoked the decision by the Administrative Court, finding that the terrorist acts committed by the PKK had to be classified as war crimes and crimes against humanity, as serious non-political crimes and as acts contrary to the purposes and principles of the United Nations. Furthermore, prohibition of deportation was not to be granted. In spite of the torture suffered by the applicant in June 1991, the facilitated standard of proof under Art 4.4 of the Qualification Directive did not apply since there were substantial reasons against a risk of the applicant facing torture in the Turkish penal service. 

The High Administrative Court granted leave for a further review (“Revision") at the Federal Administrative Court insofar as the matter of prohibition of deportation under Section 60 (2) of the Residence Act (danger of torture or inhuman or degrading.

Decision & reasoning:

The High Administrative Court's findings were incompatible with Federal Law. In examining the preconditions for prohibition of deportation under Section 60 (2) of the Residence Act (danger of torture or inhuman or degrading treatment or punishment), the High Administrative Court had neglected to take into account treatment which did not leave behind irreparable or other serious physical or mental consequences. 

The provisions on serious harm under Art 15 of the Qualification Directive were transposed into German law as constituting unqualified impediments to deportation. In German legislation, the exclusion grounds of Art 17 of the Qualification Directive take effect on a different level, as they might lead to the rejection of a residence permit (after subsidiary protection had been granted) under Section 25 (3) of the Second Sentence Residence Act. 

Both in decision-making on the granting of refugee status and in decision-making on the granting of subsidiary protection the facilitated standard of proof of Art 4.4 of the Qualification Directive was applicable, while the "reduced standard of probability" as it had been developed by German asylum jurisprudence was not relevant anymore. The provision of Art 4.4 of the Qualification Directive established a rebuttable and factual assumption in favour of persons seeking protection that they might again be at risk if they had suffered past persecution or serious harm.

According to former German asylum jurisprudence a facilitated standard of proof was applicable to persons who had been subject to past persecution, but only as far as the asylum status and refugee protection were concerned. The facilitated standard of proof did not apply to other forms of protection (impediments to deportation). With Art 4.4 of the Qualification Directive the scope of the facilitated standard of proof was enlarged to all elements of subsidiary protection as laid down in the European Union's legislation. The relevant standard of probability of Art 2 (e) of the Qualification Directive was to be measured against the ECtHR's definition of "real risk" in the context of Art 3 of the ECHR. The standard of "real risk" was identical to the standard of "considerable probability" (“beachtliche Wahrscheinlichkeit").

As a result of Art 4.4 of the Qualification Directive it is not necessary anymore that a person seeking protection provides substantial reasons for the assumption that past persecution or past serious harm might be repeated.

When examining the risk of persecution, the High Administrative Court was obliged to take into account degrading treatment within the meaning of  Art 3 of the ECHR. In this context the High Administrative Court points to the fact that Turkey is a signatory state to the ECHR and therefore the applicant could pursue his rights from Turkey if he was subjected to treatment in violation of the ECHR. This was deemed incompatible with Federal Law as the interpretation of Section 60 (2) of the Residence Act has to comply with the jurisprudence of the ECtHR on Art 3 of the ECHR. According to the established case law of the ECtHR the protection under Art 3 of the ECHR is of an absolute nature and not subject to exceptions. Prohibition of deportation under Section 60 (2) of the Residence Act therefore applied and unconditionally to deportations to signatory states of the ECHR.

However, the fact that Turkey is a signatory state to the ECHR may be of significance within an examination of whether the assumption of Art 4.4 of the Qualification Directive may be refuted or not. To take this fact into account is in compliance with established case law of the ECtHR on Art 3 of the ECHR and also with Art 7.2 of the Qualification Directive.

Outcome:

The findings of the High Administrative Court on prohibition of deportation were deemed incompatible with Federal Law, insofar the case was remanded to the High Administrative Court.