Germany - Federal Administrative Court, 19 January 2009, 10 C 52.07

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Headnote: 

The term "act of persecution" within the meaning of the Qualification Directive requires that an intentional infringement of a basic right as defined in Art. 9.1 of the Qualification Directive takes place. If the applicant has suffered past persecution (before his/her flight), it is no longer possible to deny refugee status solely on the ground that an internal protection alternative had existed in another part of the country of origin at the time of the flight (change of legal situation in the light of Art. 4.4 of the Qualification Directive).   

Facts: 

The applicant is an ethnic Chechen woman who fled Chechnya at the beginning of the Second Chechen war in September 2009. Together with her husband and daughter she went to Moscow first and then to Germany where the family applied for asylum in January 2000. They stated that they left Chechnya because of the chaos that the war had caused and because they were at risk of being persecuted by religious fanatics. As Chechens they had not been able to live in peace in Moscow.

The authorities rejected the applications. Upon appeal the Administrative Court of Würzburg in September 2002 required the authorities to grant refugee status to all family members since ethnic Chechens were at risk of persecution as a group in the Russian Federation. The authorities asked for a further appeal (“Berufung”) to the High Administrative Court. In the course of the procedure at the High Administrative Court the applicant stated that she was suffering from post-traumatic stress disorder (PTSD). The High Administrative Court of Bavaria in August 2007 annulled the decision by the Administrative Court as far as the applicant's husband and her daughter were concerned. According to the High Administrative Court there was no risk of persecution for ethnic Chechens as a group, especially since other parts of the Russian Federation generally presented an internal protection alternative. In contrast, the decision of the Administrative Court was upheld as far as the applicant was concerned, since it was found that she could only be registered in the larger cities with delays and obstructions. As necessary treatment was only available in these cities, the lack of a registration would mean that she would not be able to gain access to the health system. This would result in a threat to life and physical integrity. The High Administrative Court found that in this context it was not relevant that the denial of registration in the Russian Federation could not be regarded as a measure intentionally directed against the applicant. Challenging this part of the decision, the authorities asked for a further appeal (Revision) to the Federal Administrative Court.

Decision & Reasoning: 

The High Administrative Court has wrongfully assumed that the - temporary - denial of registration in combination with the applicant's health problems amounted to an act of persecution within the meaning of Art. 9 of the Qualification Directive. These measures do not constitute an intentional infringement of basic rights. According to the European Commission's explanatory memorandum to the Directive (COM (2001) 510 final) only intentional, sustained or systematic, and serious acts constitute acts of persecution. In contrast, the denial of registration is not intended to cause a violation of the human right to life and physical integrity. Denial of registration is not an active intrusion but a failure to act, which only indirectly has an effect on the right to life and physical integrity. It does infringe upon the right to freely move within a state's territory, but this right does not belong to basic human rights and only the violation of such a basic right constitutes an act of persecution within the meaning of the Qualification Directive. It might be a different situation if the obstruction to the freedom of movement could be considered to be a part of a systematic programme by the state which was intended to deny certain groups of the population access to the health system. However, this cannot be confirmed in this case.

The findings of the High Administrative Court are not sufficient to support the assumption that denial of registration was related to ethnicity in the whole territory or in the relevant parts of the Russian Federation. Furthermore, the High Administrative Court has failed to discuss decisions by other courts which have come to different conclusions.

It is not possible for the Federal Administrative Court to come to a concluding decision on the matter since the issue of an individual past persecution has not been examined sufficiently in the former instances, although the applicant had reported abuses by both radical Islamist Chechen actors and by Russian state actors. The High Administrative Court did not enter into an examination of these issues because it assumed that (in general) an internal protection alternative was available. In the light of Art. 4.4 of the Qualification Directive this approach cannot be considered as lawful anymore: For people who have suffered past persecution the facilitated standard of proof of Art. 4.4 of the Qualification Directive is applicable, regardless of whether an internal protection alternative was available to them at the time of their flight. What is decisive now is whether the internal protection alternative of Art. 8 (2) of the Qualification Directive is available at the time of the decision-making. Accordingly, the legal situation has improved for people who have suffered past persecution and for whom an internal protection alternative has ceased to exist in the period between the flight and the decision-making.

Outcome: 

The decision of the High Administrative Court was annulled, the case was sent back. The High Administrative Court must now examine whether the applicant suffered past persecution within the meaning of Art. 4.4 of the Qualification Directive.

Subsequent Proceedings : 

Unknown (insofar as the decision on refugee status is concerned). The claimant was granted protection from deportation status because of an extreme risk of bodily harm. 

Other sources cited: 

Explanatory Memorandum to the Commission Proposal for a Council Directive on Minimum Standards for the Qualification and Status of Third Country Nationals and Stateless Persons as Refugees or as Persons Who Otherwise Need International Protection, COM (2001) 510 final, 12 September 2001.

Case Law Cited: 

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

Germany - Federal Administrative Court, 7 February 2008, 10 C 33.07

Germany - High Administrative Court Bremen, 31 May 2006, 2 A 112/06.A

Germany - High Administrative Court Hessen, 21 February 2008, 3 UE 191/07.A

Germany - High Administrative Court Niedersachsen, 16 January 2007, 13 LA 67/06

Germany - High Administrative Court Niedersachsen, 24 January 2006, 13 LA 398/05