Germany - High Administrative Court of Sachsen, 12 December 2011, A 3 A 292/10

Country of Decision:
Country of Applicant:
Date of Decision:
12-12-2011
Citation:
A 3 A 292/10
Additional Citation:
asyl.net/M19309
Court Name:
High Administrative Court of Sachsen (Saxony)
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Headnote: 

Exclusion from refugee protection on the grounds of "serious non-political crime" or of "acts against the purposes and principles of the United Nations", cannot solely be based on the fact that an applicant has been a supporter or a member of an organisation which has been classified as terrorist. There must be serious reasons to justify the assumption that the applicant was personally involved in the commission of such crimes.

Facts: 

The applicant is of Kurdish ethnicity. He applied for asylum in April 2005 and claimed that he fled Turkey in 1993 and joined the PKK in Northern Iraq. Until 2004 he had been active for the PKK as an interpreter and agitator. When the PKK resumed the armed struggle in the summer of 2004, he decided to abandon the organisation. He had applied for a permission to leave to the PKK leadership, but this application was rejected. Therefore, he had fled in January 2005. He claimed that he never participated in military actions of the PKK, nor did he hold a senior position. Nevertheless, he was at risk of persecution.

The authorities rejected his asylum application since they did not consider the applicant’s statement to be credible. Upon appeal, the Administrative Court of Chemnitz required the authorities in May 2008 to grant refugee status. The authorities filed a further appeal (Berufung) against this decision at the High Administrative Court, arguing that the exclusion ground of a serious non-political crime applied, since the PKK had carried out terrorist acts as part of its campaign during the period when the applicant was a member. The applicant had a shared responsibility for this since he did not only execute subordinate tasks for the PKK.

Decision & Reasoning: 

The authorities' further appeal to the High Administrative Court (Berufung) was dismissed. The High Administrative Court proceeded from the assumption that the applicant would face a considerable risk of persecution in case of a return to Turkey. It is most probable that his name is registered in the list of wanted persons and therefore, he would be detained the moment he tried to enter Turkey. In detention, he would be at risk of treatment incompatible with human rights standards.

The High Administrative Court found that the exclusion grounds of a “serious non-political crime” or acts against the “principles and purposes of the United Nations” are not applicable. The interpretation of these exclusion grounds has to take into account Art. 12 of the Qualification Directive.

The assumption that a person participated in serious non-political crimes cannot solely be based on the fact that this person supported an organisation which has committed terrorist acts. Rather, there have to be well-substantiated reasons for the assumption that the person has been individually responsible. A person in a prominent position within the organisation can imply that he/she was individually responsible for the acts of this organisation; however, an evaluation of all relevant facts is still necessary (CJEU Germany v B and D, 9 November 2010,  C-57/09 and  C-101/09, paragraph 96 through 98).

Individual responsibility requires a responsibility according to criminal law definitions. However, in comparison to a criminal conviction, the standard of proof is lower when it comes to establishing an exclusion ground. The term “participation” in refugee law corresponds to the term “accessory” in criminal law, which means that the participation must have a sufficient impact on the commission of a serious non-political crime.

Acts of international terrorism are always contrary to the purposes and principles of the United Nations. Support of such acts can lead to the exclusion of persons who did not have a prominent position in a state or a state-like organisation and did not commit crimes themselves. However, even in such cases the individual contribution to a crime has to be established in order to substantiate the responsibility of the person concerned.

Taking into account these standards, the applicant did not participate in acts that lead to an exclusion from refugee protection. While it is true that the PKK committed terrorist acts and violent acts against the civilian population at the time when the applicant was a member, the applicant himself has not been involved in such acts in a manner relevant to criminal liability, nor did he assist in such acts in a way that could be regarded as sufficient for criminal liability.

Outcome: 

The appeal of the authorities (Berufung) was dismissed; the decision of the Administrative Court, according to which the applicant is entitled to refugee status, was upheld.

Subsequent Proceedings : 

Unknown

Case Law Cited: 

Germany - High Administrative Court Nordrhein-Westfalen, 09 March 2011, 11 A 1439/07.A

Germany - High Administrative Court Rheinland-Pfalz, 14 October 2011, 10 A 10416/11

Germany - High Administrative Court Schleswig-Holstein, 06 October 2011, 4 LB 5/11

Germany - High Administrative Court Niedersachsen, 15 December 2010, 11 LA 495/10

Germany - High Administrative Court Niedersachsen, 11 October 2010, 11 LB 405/08

Germany - Federal Administrative Court, 14 October 2008, 10 C 48.07