Germany - High Administrative Court of Sachsen-Anhalt, 26 July 2012, 2 L 68/10

Country of Decision:
Country of Applicant:
Date of Decision:
26-07-2012
Citation:
2 L 68/10
Additional Citation:
asyl.net M20423
Court Name:
High Administrative Court of Sachsen-Anhalt
National / Other Legislative Provisions:
Germany - AufenthG (Residence Act) - § 60 Abs. 1
Rome Statute of the ICC - Art 8
Germany - AsylvfG (Asylum Procedure Act) - § 3
Germany - AsylvfG (Asylum Procedure Act) - § 3(2)(1)(1)
Germany - AsylvfG (Asylum Procedure Act) - § 3(2)(1)(2)
Germany - AsylvfG (Asylum Procedure Act) - § 3(2)(2)
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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.