Germany - High Administrative Court Niedersachsen, 2 May 2007, 11 LA 367/05
Keywords:
| Keywords |
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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." |
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Terrorism
Description
Any act intended to cause death or serious bodily injury to a civilian, or to any other person not taking an active part in the hostilities in a situation of armed conflict, when the purpose of such act, by its nature and context, is to intimidate a population, or to compel a government or an international organization to do or abstain from doing an act. |
Headnote:
Exclusion from refugee status under Section 60 (8) (2) Residence Act/Art. 12.2 and Art. 12.3 of the Qualification Directive is only justified if the person concerned poses an ongoing threat.
Facts:
The applicant is of Kurdish ethnicity. He applied for asylum in 2003 claiming a risk of persecution because of his former membership of the armed wing of the PKK. The authorities rejected the application. The Administrative Court of Oldenburg required the authorities to grant refugee status in October 2005 as the applicant, being suspected by the Turkish authorities of having supported separatist and terrorist activities, would be at risk of human rights abuses. The granting of refugee status was not excluded on the grounds of “terrorism” as the claimant had convincingly distanced himself from the PKK and did not pose an on-going threat.
The further appeal by the authorities called into question this last point. The authorities asked for clarification of whether an exclusion ground under Section 60 (8) (2) of the Residence Act/Art. 12.2 and Art. 12.3 of the Qualification Directive only takes effect if there is a risk of repetition of the acts described in these provisions.
Decision & reasoning:
The question raised by the authorities did not meet the requirement of fundamental significance necessary for a further appeal to be examined, since the question can be answered on the basis of established case law and an appropriate interpretation of the law. These imply that the recognition of refugee status is only excluded if the person concerned poses an on-going threat.
The Qualification Directive does not justify another interpretation. Art. 12.2 of the Qualification Directive only echoes the exclusion grounds of Art. 1 F of the 1951 Refugee Convention and this fact does neither argue in favour, nor against the requirement of a risk of repetition of the acts referred to in these provisions. Furthermore, the Qualification Directive only defines minimum standards, which the Member States must not fall short of, however, they may well set standards exceeding those of the Directive.
Outcome:
The application by the authorities to grant a further appeal to the High Administrative Court was rejected.
Subsequent proceedings:
Unknown
Observations/comments:
In more recent decisions the Federal Administrative Court has held the opinion that exclusion from refugee status for the reasons mentioned above is not dependent on the person concerned posing an on-going threat, cf. for example Federal Administrative Court, 7 July 2011,10 C 26.10 (asyl.net/M19056).
Relevant International and European Legislation:
Cited Cases:
| Cited Cases |
| Germany - Administrative Court Hamburg, 22 January 2007, 15 A 1731/04 |
| Germany - High Administrative Court Nordrhein-Westfalen, 18 May 2005, 11 A 533/05.A |