Germany - Federal Administrative Court, Judgment No. 10 C 2.10, 31 March 2011

The Federal Administrative Court (Bundesverwaltungsgericht) dismissed the appeal of the applicant and upheld the BAMF decision to revoke the applicant's refugee status on the basis of the following:

1.      Inadmissible procedural objections.

Paragraph 15 of judgment: Insofar as the applicant’s complaint challenges the refusal to suspend the proceedings pursuant to Section 94 of the Code of Administrative Court Procedure (VwGO), the inadmissibility of the procedural complaint arises from the fact that a breach of Section 94 VwGO as such cannot be criticised as a procedural defect in appeal proceedings. A suspension decision pursuant to Section 94 VwGO is incontestable if it is issued by way of a decision.

Paragraph 16 of judgment: The applicant also fails to demonstrate that the refusal to suspend the proceedings led to a consequential defect that continues to adhere to the appeal judgement. The applicant does not state why it should not have been possible for him to comment on the ‘reports’ incriminating the FDLR, which he does not specify and which were published ‘in the period of approx. 2 months before the decision’. However, this would have been necessary in order to justify why the appeal decision of 11 January 2010 violated the principle of the right to be heard or the principle of a fair trial. It would have been incumbent on the applicant to explain which of the allegations from which ‘reports’ he considers to be incorrect and why it has not yet been possible for him to present his view of the matter and provide evidence. The judgment of the Administrative Court is based not only on reports by the Federal Foreign Office, a group of experts appointed by the United Nations Security Council and non-governmental organisations such as Human Rights Watch, but also on the arrest warrant issued by the investigating judge of the BGH, which - as admitted by the applicant's representative - was made known to the plaintiff when he was detained in mid-November 2009. Furthermore, the alleged breach of procedure has not been established because the applicant does not state in the grounds of appeal what he would have submitted in detail and, if necessary, provided evidence of, if he had been given sufficient time to respond.

2.      Unfounded complaint of violation of federal law.

Paragraphs 17 - 19 of judgment: The revocation of the applicant’s recognition as a refugee complies with the requirements of section 73 of the Asylum Procedure Act. With regard to the formal requirements, the version of the Immigration Act in force at the time of its enactment, which came into force on 1 January 2005, must be taken into account. The appeal has not raised any objections in this respect. With regard to the substantive requirements, section 73 of the Asylum Procedure Act shall be applied in the version valid since the Act on the Implementation of European Union Directives on Residence and Asylum Law of 19 August 2007 came into force on 28 August 2007. The court came to the conclusion that the substantive requirements for the revocation of refugee status are also fulfilled.

Paragraph 21 of judgment: Section 73 para. 1 sentence 1 of the Asylum Procedure Act establishes the obligation to revoke without any objective restriction if the requirements for recognition are ‘no longer’ met. This is also the case if grounds for exclusion are subsequently realised. The same approach is set out in section 73 para. 2a sentence 4 of the Asylum Procedure Act. According to it, revocation is also possible after the expiry of 3 years after the recognition decision has become unappealable, but is then at the discretion of the Federal Foreign Office, unless the revocation takes place because the requirements of section 60 para. 8 sentence 1 of the Residence Act or section 3 para. 2 of the of the Asylum Procedure Act are met. In the latter case, the obligation to revoke according to section 73 para. 1 sentence 1 of the Asylum Procedure Act remains. This approach is confirmed by the Federal Government's explanatory memorandum to section 73 para. 1 of the Asylum Procedure Act in the version of the Directive Implementation Act (BTDrucks 16/5065 p. 219). According to it, the requirements for revocation ‘are also met if grounds for exclusion subsequently arise’. The only exception to this is the reason for exclusion according to section 3 para. 2 sentence 1 no. 2 of the Asylum Procedure Act, which requires a serious non-political offence committed before being accepted as a refugee.

Paragraph 22 of judgment: The approach set out in section 73 para. 1 sentence 1 of the Asylum Procedure Act does not conflict with the Geneva Convention on Refugees (GRC). Article 1 F of the GRC only regulates the material requirements for exclusion from refugee status, but not the procedure for granting and withdrawing refugee status. The exclusion criteria are essentially based on the concept of unworthiness of asylum (see judgement of 24 November 2009 - BVerwG 10 C 24.08 - BVerwGE 135, 252 para. 24 et seq.). However, the necessity of excluding persons unworthy of asylum does not depend on the point in time at which they realise the substantive grounds for exclusion under Article 1 F of the GRC. A different approach only applies to the grounds for exclusion under Article 1 F (b) of the GRC, which - unlike the relevant grounds for exclusion under Articles 1 F (b) and (c) of the GRC - is limited to non-political offences committed before admission as a refugee (as is section 3 para. 2 sentence 1 no. 2 of the Asylum Procedure Act). The High Commissioner for Refugees also considers the cancellation of refugee recognition to be justified if grounds for exclusion are only realised after the recognition decision. In paragraph 4 of the UNHCR Guideline on the Cessation of Refugee Status of 10 February 2003 (HCR/GIP/03/03), he states: ‘Revocation may be pronounced if a refugee subsequently fulfils the elements of Article 1 F (a) or 1 F (c) through his conduct.’

Paragraph 23 of judgment: Such an interpretation of section 73 para. 1 sentence 1 of the Asylum Procedure Act is also supported by Article 14 para. 3 letter a of Directive 2004/83/EC, which establishes the obligation to terminate, withdraw or not renew refugee status if an exclusion criterion is met, irrespective of when the grounds for exclusion arose. Section 73 of the Asylum Procedure Act in the version of the 2007 Directive Implementation Act also serves to implement this EU regulation and must therefore be interpreted in accordance with it.

3.      No protection of legitimate expectations

Paragraph 24 of judgment: The applicant does not enjoy protection of legitimate expectations to the effect that his recognition as a refugee from March 2000 is not subsequently subject to the restrictions resulting from the introduction of the grounds for exclusion into German law with effect from January 1, 2002 by the Counter-Terrorism Act of January 9, 2002. The Administrative Court derived the fulfilment of grounds for exclusion by the applicant from facts that were mainly realised in the period from 2005 to 2009. From the period before 2005, only the assumption of the office of President of the FDLR by the applicant in mid-2001 is relevant in this respect. The revocation of refugee status is based exclusively on FDLR crimes attributed to the applicant which were committed after the introduction of the grounds for exclusion. For this reason alone, the applicant cannot invoke the protection of legitimate expectations. Moreover, EU law also requires the application of the grounds for exclusion to recognitions issued before the entry into force of Directive 2004/83/EC. In this context, the European Court of Justice refers to the mandatory nature of Article 14(3)(a) of the Directive, which requires the withdrawal or termination of refugee status in the event of grounds for exclusion, even for procedures that have already been initiated and completed.

4.      Fulfillment of grounds for exclusion under section 3 para. 2 no.1 of the Asylum Procedure Act

Paragraphs 25 - 33 of judgment: The applicant fulfilled the grounds for exclusion under section 3 Para. 2 No. 1 Asylum Procedure Act. According to section 3 para. 2 no. 1 of the Asylum Procedure Act, a foreigner is not a refugee within the meaning of the Geneva Refugee Convention if, among other things, there are serious reasons to assume that he has committed a war crime or a crime against humanity within the meaning of the international treaties that have been drawn up to make provisions regarding these crimes.

The crimes committed by acts of the FDLR are attributable to the applicant as President of the FDLR. For this conviction to be formed, it is sufficient that the assumption of the commission of such crimes is justified for serious reasons. A standard of proof, such as that required in criminal law, is not necessary. Rather, it follows from the qualification as “serious” that the indications for the commission of the crimes mentioned in section 3 para. 2 no. 1 of the Asylum Procedure Act must be of considerable weight. As a rule, the reasons are serious if there are clear and credible indications of the commission of such crimes.

The crimes committed by the FDLR which lead to exclusion under section 3 para. 2 no. 1 of the Asylum Procedure Act include the plundering of the population, the burning of villages, the shooting of women and children, abductions, mass rape and mutilations as a means of warfare and the recruitment of child soldiers. The conviction of the court was based not only on a summarised assessment of situation reports of the Federal Foreign Office, but also on specifically listed cases in the report of a United Nations expert group of 23 November 2009, in the arrest warrant of the investigating judge of the BGH of 16 November 2009, in the reports of Human Rights Watch of April and December 2009 and in the information leaflet of the BAMF of May 2009. These crimes are considered by the court to be war crimes within the meaning of Article 8 and crimes against humanity within the meaning of Article 7(a) and (g) of the Rome Statute of the International Criminal Court of July 17, 1998 (ICC Statute). The murders and rapes committed as part of a widespread and systematic attack against the civilian population also constitute crimes against humanity within the meaning of Article 7(a) and (g) of the ICC Statute.

The findings in the appeal judgment support the conclusion that the applicant is to be regarded as the perpetrator of the crimes committed by the FDLR and not only as a person otherwise involved in them pursuant to section 3 para. 2 sentence 2 of the Asylum Procedure Act.

The applicant’s responsibility arises from Article 28(a) of the ICC Statute. The Administrative Court found that the applicant, as the president of the FDLR, exercises significant influence over the organisation and has unrestricted power of command and disposal within the FDLR. According to the arrest warrant of the BAMF, the applicant, as the president of the FDLR, is also its supreme military commander and is therefore authorised to issue strategic deployment orders as well as to prevent certain combat operations or combat methods. He also exercised de facto command authority. The commanders subordinate to the applicant and active on the ground had regularly sought close contact with the applicant via satellite telephone, e-mail or conventional telephone connections in order to receive his orders or at least to obtain his consent to certain military actions.

5.      Actions of the applicant contrary to the aims and principles of the UN

Paragraphs 34 - 42 of judgment: Since the recognition of the applicant as a refugee was to be revoked due to the realisation of the reason for exclusion according to section 3 para. 2 sentence 1 no. 1 of the Asylum Procedure Act, the court could leave open whether the applicant also fulfilled the requirements for the reason for exclusion according to section 3 para. 2 sentence 1 no. 3 of the Asylum Procedure Act. But there is much to suggest that the applicant has acted contrary to the aims and principles of the United Nations.

In Resolution 1493 (2003) of July 28, 2003, the UN Security Council determined that the armed conflict in the DRC constitutes a threat to international peace and explicitly based its action on Chapter VII of the UN Charter. In doing so, it referred to the ongoing hostilities in the east of the country and the associated serious violations of human rights and international humanitarian law. In addition, the Security Council has imposed an arms embargo to prevent the further import of arms and other military equipment into the DRC. It is therefore clear that the armed conflicts in the DRC, in which the FDLR is involved, constitute a disturbance of international peace without the national courts being authorised to review them. Based on the UN Security Council resolution, it is also clear that the disturbance of international peace is in any case also caused by the atrocities and violations of international humanitarian law specified in the resolution, as well as the import of weapons into the conflict area.

However, it would stand in the way of the applicant realising the grounds for exclusion if such violations could only be committed by persons who hold a position of power in a Member State of the United Nations or at least in a state-like organisation. There are no sufficient findings of fact to justify the Bavarian Administrative Court of Appeal's assumption that, as President of the FDLR, the applicant heads a state-like organisation.

However, under certain narrow conditions, non-state actors can also meet the grounds for exclusion in section 3 para. 2 sentence 1 no. 3 of the Asylum Procedure Act. For members of terrorist organisations, this follows from the ruling of the Court of Justice of the European Union of 9 November 2010. According to it, acts of international terrorism are contrary to the purposes and principles of the United Nations “irrespective of the involvement of a state” and lead to exclusion from refugee status in the case of individual responsibility. For other violations of international peace, the resolutions adopted by the UN Security Council must be used as a basis for determining whether and in what it sees a violation of international peace, whether a private actor has a significant influence on it and whether it has a similar effect on the disturbance of international peace as state officials. This interpretation allows for an appropriate delimitation of the grounds for exclusion under section 3 (2) sentence 1 nos. 1 and 3 of the Asylum Procedure Act, as section 3 (2) sentence 1 no. 3 then also covers the actions of non-state political leaders who may not be held criminally liable under section 3 (2) sentence 1 no. 1, but whose exclusion is necessary to preserve the integrity of refugee status due to their significant influence on the disturbance of world peace.

The fact that the UN included the applicant in a list of persons against whom restrictions are to be imposed in order to enforce the arms embargo does not in itself establish responsibility on the part of the applicant. The applicant was included in this list on 1 November 2005, with his inclusion being justified by his position as President of the FDLR and his involvement in the arms trade in violation of the embargo imposed. However, inclusion in such a list alone is not sufficient to assume the exclusion ground of violating the purposes and principles of the United Nations; in this respect, it (only) has a significant indicative effect.

It follows from UN Security Council Resolution 1493 (2003) that there is a disturbance of international peace and that it emanates from the armed conflicts in eastern DRC, in which not only state army units but also non-state militias such as the FDLR are involved, as well as from the systematic acts of violence against civilians and violations of international humanitarian law. This suggests that non-state actors are also attributed a significant influence on the disturbance of world peace. Taking into account that the FDLR has been involved in the armed conflict for years, occupies a territory in the east of the DRC and systematically commits acts of violence against the civilian population, it should be regarded as a non-state organisation that acts contrary to the purposes and principles of the United Nations. It does not matter whether the FDLR is a state-like entity. Rather, the decisive factor is whether the effects it and its leaders have on the disturbance of world peace are comparable to the effects emanating from state rulers. As the president of the FDLR, who has a decisive influence on the behaviour of his fighters, the applicant bears personal responsibility for the actions of the FDLR that disturb world peace.   

6.      Fulfilment of requirements for revocation of right to asylum under section 73 para. 1 of the Asylum Procedure Act

Paragraphs 43 - 54 of judgment: The substantive requirements for the revocation of the applicant’s right to asylum were also fulfilled as it is required if grounds for exclusion are realised after the recognition decision. Section 73 para. 1 of the Asylum Procedure Act expressly refers to the revocation of refugee status and the right to asylum. Accordingly, recognition as a person entitled to asylum must be revoked if the requirements for it are no longer met. As follows from section 73 para. 2a sentence 4 of the Asylum Procedure Act, the legislator has assumed that the grounds for exclusion according to section 3 para. 2 of the Asylum Procedure Act also extend to the recognition of asylum and therefore also justify a revocation of the recognition of asylum. Furthermore, this understanding of the statutory provision is also supported by section 30 para. 4 of the Asylum Procedure Act, according to which an asylum application must be rejected as manifestly unfounded if the requirements of section 60 para. 8 sentence 1 of the Residence Act or section 3 para. 2 of the Asylum Procedure Act are met.

The applicant’s case is not covered by the scope of the constitutionally guaranteed asylum, so the revocation of his asylum status does not violate Article 16a of the Basic Law. The scope of Article 16a of the Basic Law is limited by a "terrorism reservation" according to the case law of the German Federal Constitutional Court. Accordingly, it falls outside the right to asylum if a new battleground is sought for terrorist activities to continue or support them there. Consequently, asylum cannot be claimed by those who seek to continue or support terrorist activities undertaken in their home country from the Federal Republic of Germany in the forms possible here. They do not seek the protection and peace that the right to asylum aims to provide. This also applies to those who, for the first time from Germany, engage in political struggle with terrorist means within the framework of exile political activities. Foreigners who commit or participate in crimes against humanity or war crimes after being admitted to Germany commit a serious violation of the international legal order and do not seek the protection and peace that the right to asylum aims to provide. They cannot claim asylum protection under Article 16a of the Basic Law.

Such a limitation of the scope of Article 16a of the Basic Law is also supported by Article 26 of the Basic Law, according to which actions that are intended and suitable to disturb the peaceful coexistence of nations are unconstitutional. Article 26 para. 1 sentence 1 of the Basic Law directly prohibits behaviour that aims to create or promote conditions contrary to international law, endangering world peace or international security within the meaning of Article 39 of the UN Charter. Understood in this way, Article 26 para. 1 of the Basic Law could also constitute a constitutional limitation on the promise of asylum in Article 16a of the Basic Law.

There are serious reasons to assume that the FDLR, led by the applicant, has committed war crimes within the meaning of Article 8 of the ICC Statute and crimes against humanity within the meaning of Article 7(a) and (g) of the ICC Statute, and that the applicant is responsible for these crimes as a perpetrator under Article 28(a) of the ICC Statute. The current danger (or risk of recurrence) is present in the applicant's case based on the findings of the appellate court, as he remains the president of the FDLR and, as stated in the arrest warrant of the BAMF, the FDLR continued its relevant activities during the appeal proceedings. Therefore, the applicant is also excluded from recognition as an asylum seeker under constitutional law. 

The revocation of asylum recognition of the applicant is also compliant with the law of the European Union. The exclusion grounds stipulated in section 3 para. 2 of the Asylum Procedure Act implement the requirements for refugee status set out in Article 12 para. 2 of Directive 2004/83/EC. According to Article 14 para. 3(a) of the Directive, the obligation to revoke refugee status in the event of the subsequent discovery of exclusion grounds within the meaning of Article 12 of the Directive also applies to persons who, like the applicant, submitted their application for refugee protection before the Directive came into force. This obligation must also be observed for asylum recognition granted under national law.