Germany - Administrative Court Baden-Württemberg, 6 March 2012, A 11 S 3070/11

Contrary to the assumption of the Administrative Court, the Applicant did not have the right to claim protection from deportation according to Article 15 (c) of the Qualification Directive. He did however have the right to claim protection from deportation according to Article 15 (b) of the Qualification Directive.  

The subject of the appeal proceedings is the Applicant’s request for the granting of subsidiary protection from deportation. The Administrative Court granted subsidiary protection from deportation according to Article 15 (c) of the Qualification Directive. The matter in dispute could not, however, be limited to the question of granting of protection from deportation according to Article 15 (c) of the Qualification Directive because the granting of subsidiary protection from deportation according to Article 15 of the Qualification Directive constitutes a single matter of dispute which cannot be broken down any further. The Administrative Court was therefore entitled to verify the remaining basis for the claim in the appeal proceedings.  

A deportation ban had been issued for the Applicant with regard to Afghanistan according to clause 60 (2) of the Residence Act (corresponding to Article 15 (b) of the Qualification Directive).

For the purpose of the establishment of a deportation ban according to clause 60 (2) of the Residence Act, Article 4 (4), Article 5 (1) and (2) and Articles 6 to 8 of the Qualification Directive apply according to clause 6 (11) of the Residence Act.

The Applicant benefited from the shifting of the burden of proof according to Article 4 (4) because he was recruited by the Taliban by force, deserted their training camp and was therefore faced with the real risk of inhuman punishment before leaving the country. The Applicant’s entire presentation was consistent and corresponded to existing documented information. It can therefore be assumed that he would again be exposed to a real risk of torture or inhuman or degrading treatment or punishment by the Taliban according to Article 3 of the European Convention on Human Rights if he were to return to Afghanistan. The Taliban are an organisation, which still controls a significant part of the national territory, namely parts of South and East Afghanistan. However, the Taliban are considered to be non-state actors according to Article 6 of the Qualification Directive against whom neither the Afghan state nor international organisations are currently in a position to offer adequate protection against persecution and serious harm. In this respect, there is actually a substantial probability of the real risk that the Applicant would suffer inhuman punishment by the Taliban if they were to catch up with him. A great deal has been reported about the type of forced recruitment, which the Applicant experienced. If he were to fall into the hands of the Taliban following his escape, he would experience drastic acts of revenge, which could go as far as execution according to the information currently available. According to the Taliban, opting out of the “Jihad” by means of escape was and still is considered to be the most serious crime and one, which is “deserving of death”. In the context of the conflicts, which are still raging above all in the south and east of the country and the “Jihad” which according to the Taliban is still underway, a deserter is still at risk of extremely harsh punishment even after many years. In the opinion of the Taliban, the Applicant has broken a religious law and has turned against Islam as a defector. A crime of this kind against Islam is not time-barred according to the Taliban. It would seem fairly probably that the Applicant would be recognised countrywide even after years of absence if he were to return to Afghanistan. The same applies to the risk that the Taliban would make an example of him even in Kabul. As has been seen in the recent spectacular attacks, the obviously well-organised arm of the Taliban which even infiltrates state structures still extends as far as Kabul. On the basis of the above, a deportation ban relating to Afghanistan is justified in this particular case for the Applicant according to clause 60 (2) of the Residence Act.  

However, the Applicant does not have the right to claim subsidiary protection from deportation according to clause 60 (7) (2) of the Residence Act (corresponding to Article 15 (c) of the Qualification Directive).  

Since the Applicant was living in the Province of Ghazni prior to his forced recruitment whilst his parents were living in Kabul, it could be questionable as to which location should apply in the question of whether an internal armed conflict existed at the time. Ultimately, in the case under consideration, the question could remain open as to whether Kabul or the Province of Ghazni should apply. The Applicant was not actually under serious threat to his life or physical condition as a result of indiscriminate violence from a legal point of view of either in Kabul or in the Province of Ghazni even considering his personal circumstances, which enhanced the risk. The term “indiscriminate” violence is to be understood in the sense of “general, non-targeted violence”. Article 15 (c) of the Qualification Directive is intended to protect members of the civilian population against the typical risks of war. The Applicant, however, does not essentially fear this type of general, non-targeted violence in returning to Afghanistan. Rather he fears the specific targeted violence of the Taliban directed against him as revenge for his desertion of their training camp. Targeted violence of his kind is described in Article 15 (c) of the Qualification Directive and therefore not in clause 60 (7) (2) of the Residence Act. Article 15 (b) of the Qualification Directive is applicable in this context.