Netherlands - District Court Haarlem, 1 April 2011, AWB 10/6592
| Country of Decision: | Netherlands |
| Country of applicant: | Afghanistan |
| Court name: | District Court Haarlem |
| Date of decision: | 01-04-2011 |
| Citation: | AWB 10/6592 |
Keywords:
| Keywords |
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Actor of persecution or serious harm
Description
Per Art. 6 QD actors who subject an individual to acts of serious harm (as defined in Art. 15). Actors of persecution or serious harm include: (a) the State; (b) parties or organisations controlling the State or a substantial part of the territory of the State; (c) non-State actors, if it can be demonstrated that the actors mentioned in (a) and (b), including international organisations, are unable or unwilling to provide protection against persecution or serious harm as defined in Article 7. |
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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. |
Headnote:
This case considered exclusion from refugee status and found that criminal proceedings are not required for the application of Art 12.2 of the Qualification Directive or Art 1F of the Refugee Convention.
Facts:
The applicant’s asylum application was rejected by the Minister. The applicant had also been declared a persona non grata (an unwelcome person).
Both decisions were based on the fact that, according to the Minister, Art 1F of the Refugee Convention was applicable in the applicant’s case. The applicant put forward that the respondent interpreted the phrase ‘’serious grounds to assume’’ erroneously, given the CJEU judgment in the case of Germany v B and D (CJEU, 9 November 2010, C-57/09 en C-101/09). According to the applicant, it followed from this judgment that criminal proceedings are required for the applicability of Art 1F of the Refugee Convention. The applicant had not been convicted of any offence, since the public prosecutor had closed his file and no other country was interested in starting a criminal proceeding against him.
Decision & reasoning:
The District Court held that it does not follow from the judgment in Germany v B and D (CJEU, 9 November 2010, C-57/09 en C-101/09) that criminal proceedings are required for the applicability of Art 1F of the Refugee Convention. In paragraph 104 of this judgment, to which the applicant referred, in answer to the question if a person is only excluded of refugee status when he remains to pose a threat to the receiving state, indeed refers to a double objective, but it does not follow from this paragraph that these are cumulative objectives when excluding a person from refugee status.
The District Court therefore concluded that it does not follow from this judgment that criminal proceedings are required for the application of Art 1F of the Refugee Convention. The respondent rightfully rejected the application with reference to Art 1F of the Refugee Convention.
This conclusion is also applicable to declare a person persona non grata: it is not required to have international criminal proceedings against the person.
Outcome:
The applicant’s appeal was dismissed.
Relevant International and European Legislation:
Cited Cases:
| Cited Cases |
| CJEU - C-57/09 and C-101/09 Bundesrepublik Deutschland v B and D |