Germany - Federal Administrative Court, 4 September 2012, 10 C 13.11

Country of Decision:
Country of Applicant:
Date of Decision:
04-09-2012
Citation:
10 C 13.11
Court Name:
Federal Administrative Court
National / Other Legislative Provisions:
Germany - AufenthG (Residence Act) - § 60 Abs. 1
Germany - AsylVfG (Asylum Procedure Act) - section 3(2)
Germany - Grundgesetz (Basic Law) - Art 27
Germany - Grundgesetz (Basic Law) - Article 37
Germany - Grundgesetz (Basic Law) - Article 29
Germany - Grundgezets (Basic Law) - Art 16a
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Headnote: 

1. The issue as to whether an asylum-seeker was already protected against political persecution in a third country is only relevant in terms of  the asylum application for recognition of refugee status in the context of the concept of the first country of asylum as defined in EU law in Article 29 of the Asylum Procedures Act (Articles 25 and 26 of the Asylum Procedures Directive).  

2. If the Federal Office has reached a decision on the asylum application in this case, the substantive question of the subsidiarity of refugee protection in the assessment of refugee status is no longer applicable.

Facts: 

The Claimant, a Turkish national of Kurdish ethnicity, travelled to Germany by plane in May 2006. He based his asylum application on the following: he had been imprisoned for 10 years in Turkey because of his support of the PKK (“Kurdistan Workers’ Party”). Following his release in 1990, he trained in Syria and Lebanon as a PKK militant and was involved in combat operations in 1992/93 in Turkey. He later joined the ERNK ("National Liberation Front of Kurdistan") and was involved in the organisation of campaigns intended to gain support for the PKK among local inhabitants. In October 1999, he was wounded as a guerrilla in Northern Iraq in an attack by the Turkish army and subsequently remained in the Kandil camp until 2004. He was then appointed to the KONGRA-GEL ("Kurdistan People’s Congress") in Northern Iraq as a contact with other organisations. He was hoping up until 2006 for a renunciation of power by the PKK and clearly expressed this desire. When it became clear that this was not the intention of the PKK, he decided to leave the organisation. He made contact with his family out of fear of being killed by the PKK as a traitor. He then travelled to Germany via Iran.

Decision & Reasoning: 

The Respondent’s review was accepted. The decision of the High Administrative Court was overturned.

The High Administrative Court only addressed the issue of protection against persecution from the point of view of the subsidiary nature of international refugee protection and only with regard to Iran, not Iraq where the Claimant lived for several years. In terms of the asylum application, the safety from persecution existing in Northern Iraq ceases to be applicable, not on account of the voluntary departure, but only if protection against political persecution is removed by revocation, practical withdrawal or other grounds. Turning away from a terrorist organisation such as the PKK is not, however, seen to be akin to a voluntary act in terms of alternative protection. The High Administrative Court should have verified what consequences a renegade PKK member may have to face in Iraq.  

As regards the recognition of refugee status according to the Qualification Directive, a substantive understanding of the subsidiary nature of refugee protection no longer applies. With the exception of the cases of alternative refugee status referred to in Article 12 (1) of the Qualification Directive, the possibility of the existence of alternative protection against persecution is only addressed in terms of internal protection (Article 8 of the Qualification Directive); furthermore, EU law appears to follow a procedural approach which is also transposed in German law whereby a substantive examination may be refused if alternative protection against persecution is possible within a specified period in the event of return to the receptive state. However, this no longer applies once a decision has been reached on the case.

The opinion of the High Administrative Court according to which the Claimant should not be excluded from the recognition of refugee status was rejected: in the assessment to determine whether the Claimant had committed a serious non-political offence whilst he was a member of the PKK or whether he could be held responsible for such an offence, the Court of Appeal referred exclusively to violent terrorist acts committed by the PKK characterised by violence against the civil population, thereby selected a restrictive benchmark. The High Administrative Court could only have disregarded the consideration of the applicant’s participation in fighting in the years 1992-1993 as well as attacks by the PKK that caused victims on the side of the turkish security forces if it had been first established that the armed conflict between the PKK and the Turkish state had exceeded the limits under international criminal law of a domestic armed conflict according to Article 8 (2) (d) and (f) of the International Criminal Court statutes.

The assessment of the Claimant's involvement in a meeting at which the assassination of a renegade PKK member had been decided upon by more than 500 PKK activists as the “death penalty” was also flawed; even a simple PKK activist would have been aware of the unlawfulness of this act. In relation to the assessment that the Claimant did not support any terrorist activities of an international nature, the Court of Appeal considered only terrorist activities of the PKK in Europe but not cross-border activities in Northern Iraq and also misjudged the fact that supporting activities of an organisation like the PKK which commits acts of international terror, although grave, did not have to relate to specific acts of international terror in order to justify exclusion.

Outcome: 

The review was accepted. The case was referred back to the High Administrative Court, as the Federal Administrative Court is not empowered to make a final decision.

Case Law Cited: 

Germany - Federal Administrative Court, 6 April 1992, 9 C 143.90

Germany - Federal Administrative Court, 15 December 1987, 9 C 285.86

Germany - Federal Administrative Court, 30 March 1999, 9 C 23.98

Germany - Federal Administrative Court, 08 February 2005, 1 C 29.03

Germany - Federal Administrative Court, 11 September 2007, 10 C 8.07