Netherlands - Court of The Hague, 3 December 2015, AWB 15/1712
| Country of Decision: | Netherlands |
| Country of applicant: | Syria |
| Court name: | Court of The Hague |
| Date of decision: | 03-12-2015 |
| Citation: | AWB 15/1712 |
| Additional citation: | ECLI:NL:RBDHA:2015:14081 |
Keywords:
| Keywords |
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Assessment of facts and circumstances
Description
The duty of the state to carry out an individual assessment of all relevant elements of the asylum application according to the provisions of Article 4 of the Qualification Directive, including considering past persecution and credibility; and the duty of the applicant to submit as soon as possible all statements and documentation necessary to substantiate the application. |
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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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First country of asylum
Description
"A country can be considered to be a first country of asylum for a particular applicant for asylum if: (a) he/she has been recognised in that country as a refugee and he/she can still avail himself/herself of that protection; or (b) he/she otherwise enjoys sufficient protection in that country, including benefiting from the principle of non-refoulement; provided that he/she will be re-admitted to that country." Member States may consider an application for asylum as inadmissible if a country which is not a Member State is considered as a first country of asylum for the applicant. |
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Obligation/Duty to cooperate
Description
Obligations imposed byMember States upon applicants for asylum to cooperate with the competent authorities insofar as these obligations are necessary for the processing of the application. These may include obligations to: (a) report to the competent authorities or to appear before them in person; (b) to hand over documents in their possession relevant to the examination of the application, such as their passports; (c) to inform the competent authorities of their current place address; (d) to be personally searched and the items he/she carries with him/her; (e) to have ones photograph taken; and (f) to have ones oral statements recorded provided. Alternatively the duty of the decision-maker to cooperate with the applicant in carrying out its assessment of facts and circumstances |
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Personal circumstances of applicant
Description
The range of factors such as background, gender, age, and individual position which must to be taken into account in the assessment of an application for international protection per Article 4(3)(c) of the Qualification Directive. |
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Relevant Facts
Description
An assessment of an application for international protection must take into account all relevant facts, including those relating to: the country of origin at the time of taking a decision on the application, including laws and regulations of the country of origin and the manner in which they are applied; relevant statements and documentation presented by the applicant; the individual position and personal circumstances of the applicant; and other matters set out in Article 4 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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Well-founded fear
Description
One of the central elements of the refugee definition under Article 1A ofthe1951 Refugee Convention is a “well-founded fear of persecution”: "Since fear is subjective, the definition involves a subjective element in the person applying for recognition as a refugee. Determination of refugee status will therefore primarily require an evaluation of the applicant's statements rather than a judgement on the situation prevailing in his country of origin. To the element of fear--a state of mind and a subjective condition--is added the qualification ‘well-founded’. This implies that it is not only the frame of mind of the person concerned that determines his refugee status, but that this frame of mind must be supported by an objective situation. The term ‘well-founded fear’ therefore contains a subjective and an objective element, and in determining whether well-founded fear exists, both elements must be taken into consideration." |
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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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Country of origin
Description
The country (or countries) which are a source of migratory flows and of which a migrant may have citizenship. In refugee context, this means the country (or countries) of nationality or, for stateless persons, of former habitual residence. |
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Nationality
Description
One of the grounds of persecution specified in the refugee definition per Article 1A ofthe1951 Refugee Convention. Nationality can be defined generally as the legal bond between a person and a State which does not indicate the person's ethnic origin. According to the Qualification Directive, when considered as a reason for persecution, the concept of nationality is not confined to citizenship or lack thereof and, in particular, includes membership of a group determined by its cultural, ethnic, or linguistic identity, common geographical or political origins or its relationship with the population of another State |
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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 is concerned with whether the decision to deny the asylum application and the subsequently imposed entry ban were justified based on articles 1F(a)-(c). Under these provisions the Secretary of State can raise national security as a ‘serious ground’ for his decision if an element of ‘personal participation’ can be proven.
Facts:
This case concerns a man of Syrian origin who made an application for asylum on the 3rd of May 2014. Accordingly this application was denied by the Secretary of State for Justice and Security. The application was rejected as a consequence of the applicant’s actions in the uprising from March 2011 till 2012. During this uprising the applicant would be picked up (from his home) by the security service in order to provide interpreting service in the process of interrogating political prisoners. Moreover, an entry ban of 10 years was imposed.
Decision & reasoning:
The Secretary of State argues that the decision in dispute is based on the ‘serious grounds’ for believing any of the offences under articles 1F(a)-(b) took place in the form of the applicant’s interpretation during interrogations of political prisoners. To succeed in the line of argument of ‘serious grounds’ the element of ‘personal participation’ has to be proved (aside from (‘knowing participation’ which is admitted by both parties). Hence, the court considers whether the applicant has ‘substantially contributed’ to the offences. The operative criteria applied are:
(a) causing an effect on the commission of the offence; and
(b) the effect on the undertakings.
The applicant, however, argues his contribution was performed under undue influence/duress. This is not considered or contested further in determining ‘personal participation’.
The last issue, therefore, is whether the applicant’s actions with regards to the aforementioned offences amounted to facilitation. The applicant places the timing of his actions outside of the objectionable behaviour and raises that he endeavoured to thwart the interrogations by misinterpreting. The court clarifies their position on such facts where the timing is considered irrelevant and the applicant’s endeavours are judged to be clear proof of the applicant’s function as a ‘link’ in the chain.
The Rome Statute is raised in consideration of the accountability for contributions to the specific offences. Accordingly, the court clarifies the position regarding ‘intent’ and concludes on the facts that there has been neither substantial contribution nor intent in the applicant’s actions.
Outcome:
The appeal was granted and subsequently the previous decision was quashed and a new decision is outstanding. The Secretary of state was ordered to pay damages for the amount of €980 worth of court fees and legal costs.
Observations/comments:
The court made 2 comments relating to this dispute:
- The importance of this case is based on the necessary reevalutation of the refusal of the asylum application with regards to the entry ban. Due to the current status of the entry ban, this measure needs to be reviewed first before examining the (reasoning for) the application refusal.
- The applicable law in this case is set out according to the timeline of the original decision in dispute. Accordingly, the Asylum Procedures and Reception Conditions Directives are excluded (except for article 83a).
In addition, the court did not deliver judgment on the possibility of the applicant to escape the security service’s influence.
This case summary was written by Laura Robyn, an LPC student at BPP University.
This case summary was proof read by Joanna Oomen, a BPTC student at BPP University.
Relevant International and European Legislation:
Cited National Legislation:
Other sources:
Rome Statute - Articles 23(3) and 30(1)
“Background Note on the Application of the Exclusion Clauses: Article 1F of the 1951 Convention relating to the Status of Refugees” paragraphs 21, 25, 50, 51, 64
Ambtsbericht (Situation Report) DCM/AT-424/09/43705