Germany - High Administrative Court Nordrhein-Westfalen, 27 March 2007, 8 A 4728/05.A

Facts:

The applicant is a longstanding member of the prohibited group TKP-ML. He was taken into custody in Turkey in 1998. Following a hunger strike he was temporarily released from jail. He fled to Germany in June 2002 and applied for asylum. The authorities rejected his asylum application in April 2003 as manifestly unfounded because the applicant, being a supporter of the terrorist group TKP-ML-TIKKO, was excluded from refugee status. At the same time, however, the authorities found that the applicant must not be deported to Turkey, since in case of return he would be at risk of inhuman treatment.

In October 2005, upon the applicant’s appeal, the Administrative Court required the authorities to grant him asylum. The court held that, to start with, an exclusion ground did not exist since the applicant was no longer able to engage in politics due to ill health and therefore did not pose an ongoing threat.

The authorities asked for a further appeal (Berufung) to the High Administrative Court arguing that persons who, like the applicant, are re-imprisoned during an ongoing court proceeding or after a conviction, do not face an ongoing risk of  torture in Turkey. Furthermore, according to the authorities, the issue of whether a crime may be repeated is not relevant within the concept of the exclusion ground of a ‘serious non-political crime’ (Section 60 (8) (2) of the Residence Act), since this provision, like Art 12 (2) of the Qualification Directive and Art. 1 F of the 1951 Refugee Convention, refers to acts in the past. 

Decision & reasoning:

The applicant was eligible for asylum (under the German constitution) and refugee status. He had been subject to persecution in the past and was not sufficiently safe from renewed persecution. The exclusion ground ‘serious non-political crime’ was not applicable.

In principle, the right to asylum (under German constitutional law) applies not only to persons who are worthy of asylum. It was consciously incorporated in the Constitutional Law (Grundgesetz) without restrictions. An exception from this rule can be found in the so-called “reservation regarding terrorism”, which considers the fact that prosecution of terrorist crimes is legitimate in order to protect legal interests of other citizens. In this case, the right to asylum may be excluded if the person concerned continues pursuing his political goals by terrorist means.

The severe damages to the applicant’s health demonstrate without doubt that he was tortured because of his political activities when he was imprisoned several times. Therefore, the measures taken against him do not constitute criminal prosecution but political persecution.

In the Federal Republic of Germany, the applicant has not been supporting an extremist organisation which pursues its goals with violent means.

In case of return to Turkey, the applicant is not sufficiently safe from renewed political persecution. Members of prohibited political organisations still suffer ill-treatment which the state is responsible for. Refugees who were subject to political persecution in the past are at risk of being exposed to asylum-relevant acts of persecution.

The exclusion ground of a “serious non-political crime” (Section 60 (8) (2), Second Alternative of the Residence Act) is not so much intended to sanction crimes committed in the past as it is to avert danger. In any individual case the reasonableness has to be examined. The exclusion ground can be ruled out if a refugee renounces his past political goals or, like the applicant, is not able anymore to pursue these goals for reasons of ill health. Though the wording allows for a different interpretation, the genesis and the history of interpretation demonstrate that the exclusion clause is not intended to exclude persons who are considered as “unworthy” from asylum status, but to prevent  danger from society. 

Resolutions 1269 (1999) and 1373 (2001) of the UN Security Council also state that persons, who plan, organise or support terrorist activities shall not be eligible for refugee status. This wording also demonstrates that the aim is to avert present dangers.

Since the exclusion clause of Section 60 (8) (2) of the  Residence Act is identical in wording to Art. 1 F of the 1951 Refugee Convention, UNHCR’s recommendations are applicable as well: the necessity of a close cooperation with UNHCR also follows from Art. 35 of the 1951 Refugee Convention. In several statements (UNHCR Handbook et al.) UNHCR recommends to undertake a careful interpretation, considering specific individual circumstances. Only in cases of war crimes and acts contrary to the purposes and principles of the United Nations (which implies that serious crimes have been committed and that the person concerned was in a high position) UNHCR considers that an assessment of proportionality is not necessary. In case of terrorist acts of violence, the person’s position in the organisation and his/her own activities have to be taken into account.

Neither is an exclusion of persons for the reason of being “unworthy” of asylum, which does not take into account the aspect of averting dangers, justifiable on the basis of Art. 12 (2) of the Qualification Directive. An interpretation of national law has to consider, as far as possible, the wording and the purpose of EU Directives. An interpretation of Art. 12 (2) of the Qualification Directive has to follow the 1951 Refugee Convention as much as possible, since the Directive's text, with some amendments, is also modeled on Art. 1 F of the 1951 Refugee Convention. Furthermore, the Qualification Directive itself mentions the 1951 Refugee Convention as an important part of the international legal framework for refugee protection and UNHCR as an important partner of cooperation. The additional wording of Art. 12 (2) of the Qualification Directive is of an explanatory nature and does partly reflect points of views shared by UNHCR.

Some commentators on the 1951 Refugee Convention argue that according to Resolution 1373 (2001) any terrorist acts have to be considered as acts contrary to the purposes and principles of the United Nations. However, Art. 12 (2) (c) of the Qualification Directive refers explicitly to the preamble and to Art. 1 and 2 of the Charter of the United Nations. Furthermore, even this resolution is intended in the first place to avert danger. The resolution does not make any statement on the exclusion from refugee status of persons who supported terrorist organisations in the past and later turned away from these organisations. 

Finally, the wording of Art. 12 (3) of the Qualification Directive shows that an interpretation, having regard to the past only, was not  intended since it only refers to persons who instigate or otherwise participate in the commission of the crimes or acts mentioned in the second paragraph. It is not discernible that these persons should be treated in a different manner from the perpetrators themselves.

It does not have to be clarified whether and to which extent the applicant supported the armed wing of the TKP-ML and if this involved the participation in a serious non-political crime. Since he is permanently severely disabled, he does not pose a threat. Therefore, it would be disproportionate to exclude him from asylum protection.

Outcome:

The further appeal by the authorities was dismissed; however, the High Administrative Court granted leave for a further appeal to the Federal Administrative Court (Revision) because of the fundamental significance of the case.

Subsequent proceedings:

Unknown (the case was pending at the Federal Administrative Court, 10 C 47.07, no decision has become known as at the beginning of 2012)

Observations/comments:

Regarding the assessment of whether terrorist acts automatically constitute acts contrary to the purposes and principles of the United Nations, the European Court of Justice and the Federal Administrative Court have, it seems, come to a different conclusion in the meantime, cf. for example: 

• European Court of Justice, Federal Republic of Germany vs. B. (C-57/09) and D. (C-101/09), 09 November 2010.
• Federal Administrative Court/Bundesverwaltungsgericht, 7 July 2011, 10 C 26.10

Other sources:

• UN Security Council, Resolutions 1269 (1999) of 19 October 1999 and 1373 (2001) of 28 September 2001
• UNHCR Guidelines on International Protection: Application of Exclusion Clauses: Article 1 F of the 1951 Convention relating to the Status of Refugees, 4 September 2003, No. 17, No. 24
• UNHCR, Annotated Comments on the EC Council Directive 2004, 30 September 2004, on recital (1) through (4) of the preamble; on Art. 2 (d); on Art. 14 (4) through (6); on Art. 21 (2) and (3);
• Calliess/Ruffert, EUV/EGV, 2nd . Edition, 2002, Art. 5 EGV paragraph 46 and subsequent paragraphs;
• Kingreen/Puttler, in: Calliess/Ruffert, EUV/EGV, Art. 6 EUV paragraph 73 and subsequent paragraphs;
• Streinz, in: Streinz, EUV/EGV, Art. 5 EGV paragraph 47