Denmark - the Refugee Appeals Board’s decision of 6 February 2017

Country of Decision:
Country of Applicant:
Date of Decision:
06-02-2017
Court Name:
The Refugee Appeals Board
National / Other Legislative Provisions:
Denmark - The Danish Aliens Act Art. 7
(1)
Denmark - The Danish Aliens Act Art. 10
no. 3
Denmark - The Danish Aliens Act Art. 22
no. 6
Denmark - The Danish Aliens Act Art. 24
no. 1
Denmark - The Danish Aliens Act Art. 31
(2)
Denmark - The Danish Aliens Act Art. 32
(3)
Denmark - The Danish Penal Code Art. 69
Denmark - The Danish Penal Code Art. 181
Denmark - The Danish Penal Code Art. 266
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Headnote: 

The applicant, who had deserted the Syrian army, was seen in isolation covered by the Danish Aliens Act Art. 7 (1) [refugee status]. However, the Board found serious reasons to assume that the applicant had committed a crime against humanity and war crimes during his military service and consequently he was excluded from protection. Nevertheless, the Danish Aliens Act Art. 31, (2) is an obstacle to his expulsion as he would risk persecution covered by the Danish Aliens Act Art. 7 (1) in the case of returning to Syria.

Facts: 

The applicant, born in 1990, is an ethnic Kurd and a Muslim from Qamishli, Syria. He entered Denmark in September 2015 and applied for refugee status. He stated that he feared if he returned to Syria he would be executed by the Syrian authorities as he deserted the Syrian Army.

In support of his application he referred to having completed his compulsory military service from 2009 to 2011. The applicant was then recalled for military service in 2013 and participated in the Syrian army’s battles against The Free Syrian Army and ISIL. During these battles, he participated in looting civilians and burning down civilian houses. He further participated in taking civilian and militant prisoners who were submitted to torture.

In June 2016, the applicant was convicted by the Court in Sønderborg for arson (the Danish Penal Code Art. 181) and for several times having threatened the asylum centre staff with a knife (the Danish Penal Code Art. 266).  He was sentenced 10 months in prison, deportation and exclusion for 6 years (the Danish Aliens Act Art. 24, no. 1, cf. Art. 22, no. 6., cf, Art. 32, (3).

In December 2016, the High Court (Vestre Landsret) upheld the judgment and, referring to an additional legal psychiatric statement, added that the applicant was covered by the Danish Penal Code Art. 69 (commitment to custody).

The Danish Immigration Service rejected the asylum application in October 2016.

Decision & Reasoning: 

The account of the applicant has been established by the Refugee Appeals Board.

The board accepted that the applicant during two to three years of military service as a private in Homs participated in combat and looting of civilians, burning down civilian houses and taking both civilian and military prisoners. Further, that he was aware of the fact that at least military prisoners were tortured and that he participated in mutilation of the dead bodies of the soldiers from the Free Syrian Army.

The Board upheld the decision of the Danish Immigration Service that the applicant was covered by the Danish Aliens Act Art. 7, (1) [refugee status].

The Board then turned to the question whether the applicant based on his acts during combat and other military service in the Syrian army was excluded from protection according to the Danish Aliens Act Art. 10, (1), no. 3, cf. The 1951 Refugee Convention Art. 1F (a) and 1F (b).

The Board referred to the UNHCR Background Note on the Application of the Exclusion Clauses: Article 1F of the 1951 Convention relating to the status of Refugees from 4 September 2003 which states: “… 51. In general, individual responsibility, and therefore the basis for exclusion, arises where the individual committed, or made a substantial contribution to, the criminal act, in the knowledge that his or her act or omission would facilitate the criminal conduct. Thus, the degree of involvement of the person concerned must be carefully analyzed in each case… Apart from actual commission of the crime, criminal acts may include ordering, solicitation, inducement, aiding, abetting, contribution to a common purpose, attempts and, in the case of genocide, incitement to commit a crime … 53. … Aiding or abetting … requires the individual to have rendered a substantial contribution to the commission of a crime in the knowledge that this will assist or facilitate the commission of the offence. The contribution may be in the form of practical assistance, encouragement or moral support and must have a substantial (but not necessarily causal) effect on the perpetration of the crime. … Thus, presence at the scene of a crime is not in itself conclusive of aiding or abetting, but it could give rise to such liability if such presence is shown to have had a significant legitimising or encouraging effect on the principal actor. This may often be the case where the individual present is a superior to those committing the crimes … 55. Whether the individual’s contribution to the criminal enterprise is substantial or not depends on many factors, such as the size of the criminal enterprise, the functions performed, the position of the individual in the organisation or group, and (perhaps most importantly) the role of the individual in relation to the seriousness and the scope of the crimes committed…” 

Based on an overall assessment of the applicants acts during military service the Board found serious reasons to assume that the applicant had committed a crime against humanity and war crimes as these are defined in international law and covered by the 1951 Convention Art. 1 F (a). The fact that the applicant only was a private cannot lead to another result. The Board notes the applicant was a grown man when he committed the crimes.

Consequently, according to the Danish Aliens Act Art. 10, (1), no. 3, cf. the 1951 Convention Art. 1 F (a) the applicant cannot be granted refugee status.

The fact that the applicant was forced to carry out some of the acts and that superiors from the army supervised his acts cannot be given decisive importance when assessing the question of exclusion from protection.

The Board found that the Danish Aliens Act Art. 31, (2) is an obstacle, however, to the expulsion of the applicant, who seen in isolation is covered by the Danish Aliens Act Art. 7, (1). The Board therefore upheld the decision of the Danish Immigration Service.

Outcome: 

The applicant was excluded from protection according to the Danish Aliens Act Art. 10, (1), no. 3, cf. the 1951 Convention Art. 1 F (a), however, the Danish Aliens Act Art. 31, (2) is an obstacle to the expulsion.

Other sources cited: 

UNHCR Background Note on the Application of the Exclusion Clauses: Article 1F of the 1951 Convention relating to the status of Refugees from 4 September 2003.