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

Country of Decision:
Country of Applicant:
Date of Decision:
06-03-2012
Citation:
A 11 S 3070/11
Additional Citation:
Asyl.net M19557
Court Name:
Administrative Court Baden-Württemberg
National / Other Legislative Provisions:
Germany - AufenthG (Residence Act) - § 60 Abs. 2
Germany - AufenthG (Residence Act) - § 60 Abs. 3
Germany - AufenthG (Residence Act) - § 60 Abs. 4
Germany - AufenthG (Residence Act) - § 60 Abs. 5
Germany - AufenthG (Residence Act) - § 60 Abs. 6
Germany - AufenthG (Residence Act) - § 60 Abs. 7
Germany - AufenthG (Residence Act) - section 60(11)
Germany - AsylvfG (Asylum Procedure Act) - § 72 Abs. 1
Germany - AsylvfG (Asylum Procedure Act) - § 77(1)
UNCAT - Art 1
Germany - AufenthG (Residence Act) - § 60 Abs. 1
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Headnote: 

The actual risk of inhuman treatment or punishment by the Taliban because of desertion from one of their forced recruitment training camps can justify a deportation ban according to clause 60 (2) of the Residence Act (Article 15(b) of the Qualification Directive) in the case of Afghanistan.
Targeted criminal violence is defined in Article 15 (b) of the Qualification Directive (clause 60 (2) of the Residence Act) but not in Article 15 (c) of the Qualification Directive (clause 60 (7) p. 2 of the Residence Act), because in this context there is no specific risk of an internal armed conflict, i.e. “indiscriminate violence”.  

Facts: 

The Applicant, who was born in 1992, is an Afghan national of the Shiite faith and the Hazara ethnic group and originates from the Province of Ghazni. In February 2010, he travelled over land to the Federal Republic. He justified his asylum application as follows: the Taliban had recruited him by force in October 2009 by threatening his parents and took him to a training camp. He subsequently deserted the camp. With the help of his father, he fled to Germany via Pakistan. His parents were then forced to move for safety reasons from Ghazni to Kabul where they are still living today. He is afraid that he would be open to acts of revenge by the Taliban if he were to return to Afghanistan, particularly as he is known in Afghanistan as a prominent former member of the national wrestling team.

The authorities rejected the asylum application. In response to the claim presented against this decision, the Applicant obtained subsidiary protection according to Article 15 (c) of the Qualification Directive. The appeal by the authorities was directed against the latter.   

Decision & Reasoning: 

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. 

Outcome: 

The appeal by the authorities was rejected. The Applicant was granted subsidiary protection according to Article 15 (b) of the Qualification Directive.  

Subsequent Proceedings : 

Unknown. 

Other sources cited: 
  • Department for Foreign Affairs, progress report of 10.01.2012
  • UNHCR, Guidance of 11.11.2011 on Afghanistan
  • Dr. Danesch, report of 07.10.2010
  • ai, report of 21.12.2010
  • Kermani, Die Zeit of 05.01.2012
  • Dolk, Asylmagazin 12/2011, 418ff.
  • Treiber in ‘Gemeinschaftskommentar’ (legal commentary) Asylum Procedures Act (AsylVfG), 9/2007, § 13 Asylum Procedures Act (AsylVfG) marginal number 56ff.
  • Renner/Bergmann, right of aliens, 9th edition 2011, clause 60 Residence Act (AufenthG) marginal number 34f. and 39ff.
Case Law Cited: 

Germany - Administrative Court of Ansbach, 13 May 2011, AN 11 K 11.30032

Germany - Federal Administrative Court, 1 February 2007, 1 C 24.06

Germany - Federal Administrative Court, 8 September 2011, 10 C 14.10

Germany - Federal Administrative Court, 18 July 2006, 1 C 15.05

Germany - Administrative Court of Baden-Württemberg, 06 March 2012, A 11 S 3177/11

Germany - Federal Administrative Court, 18 July 2006, 1 C 15.05

Germany - Federal Administrative Court, 14 December 1993, 9 C 45.92

Germany - Federal Administrative Court, 05 June 1998, 9 B 469.98

Germany - Federal Administrative Court, 10 April 2008, 10 B 28.08

Germany - Federal Administrative Court, 29 June 2010, 10 C 10.09

Germany - Administrative Court of Baden-Württemberg, 14 December 1993, A 16 S 2005/93