Germany - High Administrative Court of Berlin & Brandenburg, 3 March 2009, 3 B 16.08

Facts:

The applicant was an ethnic Chechen. He applied for asylum in Germany in June 2002, stating that he had neither participated in the armed conflict in Chechnya nor had he been politically active. Nevertheless, he was arrested repeatedly in raids by the security forces. He had also been tortured in custody. Immediately before his flight from Chechnya the security forces started to search for him specifically, because they had found pictures in which he could be seen carrying weapons. These photographs were taken at a wedding.

The competent authorities granted refugee protection in March 2004. The Federal Commissioner for Asylum Affairs (the now defunct office of the “Bundesbeauftragter für Asylangelegenheiten”) appealed this decision. The Administrative Court rejected the appeal in January 2007 and confirmed that the recognition of refugee status had been lawful. According to the Administrative Court the applicant had been subjected to “group persecution” which took place at least at a regional level. Since he did not have an “internal passport” (issued by the territorial authorities of the Russian Federation) he could not be reasonably expected to take up residence in other parts of the country. The High Administrative Court granted leave for a further appeal (Berufung).

Decision & reasoning:

The High Administrative Court found that the applicant had unlawfully been granted refugee status. Whether he was at risk of persecution solely for his belonging to the Chechen ethnic group, did not have to be decided. In any case, the granting of refugee status was excluded since other parts of the Russian Federation provided an internal protection alternative. The Court stated:

According to the country of origin information available to the High Administrative Court, ethnic Chechens were exposed to discrimination and attacks from the authorities, as well as from other societal forces in the Russian Federation. However, persecution because of membership of an ethnic group can only be established if the reported measures constitute acts of persecution in legal terms and if those measures have reached a sufficient degree of “density”1. The assumption that all members of a group are persecuted requires a certain “density of persecution”. The acts of persecution have to target all members of a group present in the relevant area, at the relevant period of time and they have to extend and be repeated to an extent that any member of this group does not only face a possibility but an actual risk of being affected him or herself.

The fact, that Chechens are under the special observation of the law enforcing authorities and are affected by interrogations, identity checks, temporary arrests and searches of their homes, does not justify the assumption that grave abuses of basic human rights are taking place.

Apart from the safety from persecution, the concept of internal protection within the meaning of Art. 8.1 of the Qualification Directive requires that the applicant may reasonably be expected to stay in that part of the country. He must not be exposed to existential risks at the place of internal protection. As a rule, this is the case for persons who are able to work if they can obtain the necessary means of subsistence at the place of internal protection, possibly after overcoming an initial period of difficulty. They can do so either by working, even if that work is not very attractive and does not correspond to their qualifications, as long as the work is generally reasonable, or by living on contributions from a third party. However, a place in which it is only possible to safeguard subsistence by criminal means, does not present an internal protection alternative.

In the present case, it can be expected that the applicant will be able to obtain the necessary means of existence by working, without necessarily having to resort to criminal acts.

Outcome:

The initial decision by the authorities to grant refugee status was annulled, the applicant was not entitled to refugee status.

Subsequent proceedings:

Unknown

Observations/comments:

1.Density in this context implies that a certain number of incidents has taken place within a defined space and within a defined period.