Germany - High Administrative Court of Sachsen-Anhalt, 26 July 2012, 2 L 68/10
Keywords:
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Crime against humanity
Description
"Any of the following acts when committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack: (a) Murder; (b) Extermination; (c) Enslavement; (d) Deportation or forcible transfer of population; (e) Imprisonment or other severe deprivation of physical liberty in violation of fundamental rules of international law; (f) Torture; (g) Rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization, or any other form of sexual violence of comparable gravity; (h) Persecution against any identifiable group or collectivity on political, racial, national, ethnic, cultural, religious, gender as defined in paragraph 3, or other grounds that are universally recognized as impermissible under international law, in connection with any act referred to in this paragraph or any crime within the jurisdiction of the Court; (i) Enforced disappearance of persons; (j) The crime of apartheid; (k) Other inhumane acts of a similar character intentionally causing great suffering, or serious injury to body or to mental or physical health." |
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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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Inhuman or degrading treatment or punishment
Description
A form of serious harm for the purposes of the granting of subsidiary protection. The Trial Chamber of the International Criminal Tribunal for the Former Yugoslavia in Celibici defined cruel or inhuman treatment as ‘an intentional act or omission, that is an act which, judged objectively, is deliberate and not accidental, that causes serious mental or physical suffering or injury or constitutes a serious attack on human dignity.’ “Ill-treatment means all forms of cruel, inhuman or degrading treatment or punishment, including corporal punishment, which deprives the individual of its physical and mental integrity." |
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Previous persecution
Description
"The fact that an applicant has already been subject to persecution or serious harm or to direct threats of such persecution or such harm, is a serious indication of the applicant's well-founded fear of persecution or real risk of suffering serious harm, unless there are good reasons to consider that such persecution or serious harm will not be repeated.” “The concept of previous persecution also deals with the special situation where a person may have been subjected to very serious persecution in the past and will not therefore cease to be a refugee, even if fundamental changes have occurred in his country of origin. It is a general humanitarian principle and is frequently recognized that a person who--or whose family--has suffered under atrocious forms of persecution should not be expected to repatriate. Even though there may have been a change of regime in his country, this may not always produce a complete change in the attitude of the population, nor, in view of his past experiences, in the mind of the refugee." |
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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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Standard of proof
Description
The degree or level of persuasiveness of the evidence required in a specific case. For example, in the refugee context, ‘well-founded’ is a standard of proof when assessing the fear of persecution. |
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Subsidiary Protection
Description
The protection given to a third-country national or a stateless person who does not qualify as a refugee but in respect of whom substantial grounds have been shown for believing that the person concerned, if returned to his or her country of origin, or in the case of a stateless person, to his or her country of former habitual residence, would face a real risk of suffering serious harm as defined in Article 15 of 2004/83/EC, and to whom Article 17(1) and (2) of 2004/83/EC do not apply, and is unable, or, owing to such risk, unwilling to avail himself or herself of the protection of that country.” “Note: The UK has opted into the Qualification Directive (2004/83/EC) but does not (legally) use the term Subsidiary Protection. It is believed that the inclusion of Humanitarian Protection within the UK Immigration rules fully transposes the Subsidiary Protection provisions of the Qualification Directive into UK law. |
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Torture
Description
“Any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him/her or a third person information or a confession, punishing him/her for an act s/he or a third person has committed or is suspected of having committed, or intimidating or coercing him/her or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions.” |
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War crimes
Description
"(a) Grave breaches of the Geneva Conventions of 12 August 1949, as defined in Article 8(2a) of the Rome Statute of the International Criminal Court; and (b) Other serious violations of the laws and customs applicable in international armed conflict, within the established framework of international law, as defined in Article 8(2b) of the Rome Statute of the International Criminal Court." |
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Refugee Status
Description
The recognition by a Member State of a third-country national or stateless person as a refugee. |
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International armed conflict
Description
“A war involving two or more states, regardless of whether a declaration of war has been made or whether the parties recognize that there is a state of war.” |
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Acts contrary to the purposes and principles of the UN
Description
Extreme activity with an international dimension committed by persons who have been in positions of power in a state or state-like entity and which attacks the very basis of the international community's coexistence. May include crimes capable of affecting international peace, security and peaceful relations between states, as well as serious and sustained violations of human rights. |
Headnote:
This case concerned exclusion from refugee status on the basis of a war crime and a serious non-political crime.
A Chechen who was involved in the Second Chechen War - outside of the general combat action - in the killing and wounding of Russian soldiers and the kidnapping of a Russian officer to force the release of another Chechen is at risk of being exposed to torture or at least inhuman or degrading treatment or punishment in the Russian Federation.
Facts:
The Applicant, who was born in 1978, is a Russian national with Chechen ethnicity. On 4.11.2002 he applied for recognition of entitlement to asylum protection. Within the framework of his personal interview by the authorities, he stated that he had worked as an employee of the Maschadow government up until 1999 and had been involved in the supervision of oil installations. In May 2002, together with a friend, he had shot two people and seized a Russian officer in order to obtain in exchange the release of his brother who had been captured during a “purge”. All three subsequently fled but initially were unable to leave the country. With the help of a facilitator, they were taken to Germany in a lorry in October 2002. The Administrative Court of Magdeburg and the High Administrative Court granted the Applicant refugee protection. These decisions were overturned by the Federal Administrative Court, however, as it had not been adequately examined whether the Applicant should, based on his acts, be dealt with as a war criminal according to the Rome Statute of the International Criminal Court which would constitute grounds for exclusion from refugee protection. The case was therefore referred back to the High Administrative Court to be re-examined.
Decision & reasoning:
The Applicant is under threat of political persecution due to the killing or at least the serious wounding of the Russian soldiers and the kidnapping of the Russian officer. According to Article 4 (4) of the Qualification Directive, the Applicant would be exposed to risks relevant to refugee status if he were to return to Chechnya. He belongs to the particularly vulnerable group of people who, either personally or in their family environment, are associated by the Chechen security forces with former or current members of rebel organisations.
However, in the Applicant’s case, the exclusion criteria of war crimes or crimes against humanity applies (clause 3 (2) (1) No. 1 of the Asylum Procedure Act corresponding to Article 12 (2) (a) of the Qualification Directive). The question as to whether a war crime or crime against humanity exists is currently determined principally according to the elements of these offences as set forth in the Rome Statute of the International Criminal Court. The Applicant has met the criteria of “treacherous killing” of the two Russian soldiers according to Article 8 (2) (e) (ix) of the International Criminal Court statute.
Recognition of refugee states is also excluded on the basis of a serious non-political crimes (clause 3 (2) (1) No. 2 of the Asylum Procedure Act, corresponding to Article 12 (2) (b) of the Qualification Directive in conjunction with clause 60 (8) (2) of the Residence Act) as the killing or wounding of the two Russian soldiers constitutes a serious non-political crime.
The question as to whether an offence is given the necessary weighting is determined according to international rather than national criteria. It must be a capital offence or another type of offence which is qualified by most legal systems as being particularly serious and is prosecuted accordingly.
The killing or wounding of the two soldiers committed by the Applicant and the hostage-taking of an officer constitute serious crimes in this sense, particularly because they are not justified by a combatant status.
The motivation of the Applicant for the killing or wounding of the two officers and the hostage-taking of the officer was, according to his statement, simply the freeing of his brother from imprisonment by the Russians. He was therefore pursuing a personal rather than a political aim.
However, the Applicant is entitled to a prohibition on deportation on the grounds of threatened torture according to clause 60 (2) of the Residence Act. Torture and the extraction of confessions were common practices among the Russian security forces prior to the Applicant’s departure from the Russian Federation. Although circumstances have improved since the time of the Applicant’s departure,iIn spite of the legal prohibition of torture in the Russian Federation, cases in which this prohibition was not respected were repeatedly reported by human rights’ representatives and various human rights' organisations particularly in cases of imprisonment, police custody and detention awaiting trial. There is no solid reason to assume that the Applicant would not be exposed to torture or degrading treatment in the event of his imprisonment in the Russian Federation.
Outcome:
Contrary to the original decision of the Administrative Court of Magdeburg and the High Administrative Court, the Applicant has not been granted refugee status; however he must not be deported on the grounds of threatened torture according to clause 60 (2) of the Residence Act.
Subsequent proceedings:
Unknown.