Headache for politicians and bogeyman of right-wing radicals
The constitutional right to asylum has long been a source of irritation for politicians, authorities, and the judiciary. The statistics from the Office for Refugees provide grounds for discontent. The quota of positive decisions on asylum applications is extremely small. From January to October 2003, it amounted to 1.7%. During the same period, approximately 27% of applicants withdrew their asylum applications, and 70% received refusals. These figures give reason to say that the overwhelming majority of asylum seekers invent a story of persecution in their country of origin or objectively do not have sufficient grounds for claiming refugee status.
It should also be noted with regret that in the CIS countries there are fraudulent firms that, for large sums of money, supply their clients with fake stories of persecution and guarantee them asylum in the Federal Republic of Germany using forged documents. Usually such adventures end very badly. Especially if, having believed the promises of the deceivers, an asylum seeker has sold an apartment, quit a job, and liquidated other affairs in the country of origin.
The goals of such pseudo-refugees are obvious. In the countries of origin of asylum seekers, internal instability and social unrest prevail. Through obtaining asylum, a number of foreigners try to create for themselves the right to reside in a politically stable country with a high standard of living. This unfortunate abuse of democracy is a bogeyman for various right-wing radicals who, under the pretext of a justified fight against flaws in the asylum law, try to win the sympathies of some voters.
"Drang nach Deutschland" and How to Fight It
In the early 90s of the last century, up to 400,000 persons per year sought asylum in Germany. The federal government was forced to react to this "ninth wave" threatening to bury the entire social and political system. Laws were passed through parliament that made it more difficult to actually obtain the right to asylum. The main deterrents were the concepts of a safe third country and an internal alternative to fleeing abroad.
The first provision implies depriving an asylum seeker of the right to choose the country in which to file an application. He must submit his asylum application in the first accessible democratic state. If an asylum seeker enters the Federal Republic of Germany via the Czech Republic, he will be sent back to the Czech Republic without a hearing, with an indication of the possibility of filing an asylum application with the Czech authorities. The second provision implies that refugees have the opportunity to move from unstable regions to safer areas within the same country.
The interpretation of these concepts is a constant subject of dispute between asylum seekers and the competent authorities. Sometimes official bodies play the role of Cerberus rather than guardians of the law. On the whole, as a result of the measures taken, the number of asylum applications has now fallen to approximately 45,000 per year. About 10% of this number are applications from citizens of the former Soviet Union.
Big Brother’s Eye Cannot Keep Track of Everyone
In this article, I would like to present to readers a decision of the Federal Constitutional Court (Bundesverfas-sungsgericht, Az.: 2 BvR 134/01) on a complaint by a Turkish citizen of Kurdish origin. The woman based her asylum application on references to abuse and even rape by Turkish soldiers during her time living in her native Kurdistan. The asylum application was rejected by the competent authorities. As a last resort, the plaintiff turned to the Federal Constitutional Court for support.
It should be said that this high court makes final decisions in cases where the observance of fundamental human rights plays an important role in the judicial examination of the case. The exact list of fundamental human and civil rights is contained in the Basic Law of the Federal Republic of Germany (Grundgesetz). In this case, it concerned Article 16, paragraph 1, of the Basic Law. According to this article, politically persecuted persons have the right to asylum. It should also be noted that persecution is considered political if it comes from state structures against persons of a certain national, religious, or political affiliation.
In Kurdistan, Chechnya, and also earlier in Azerbaijan and Tajikistan, we are talking about national minorities suppressed for many decades, who are waging a long and brutal war with elements of terror against their central governments. This war is financed from a variety of sources, including criminal and foreign ones. Life in these regions is determined by poverty, night raids by rebels, explosions of mines, ambushes, daytime sweeps by government troops, carpet bombings, intimidation of the population from all sides, and other horrors of a merciless guerrilla war.
The key point of the proceedings on the Kurdish woman’s complaint was the view of the lower instances that state structures were not involved in the acts of violence against the plaintiff. The Office for Refugees believed that not every unjustified use of force by Turkish soldiers and police should be attributed to the Turkish authorities. In areas affected by guerrilla warfare, such actions by security forces are "usual" methods of waging war and imposing "order." Therefore, it refused to grant the woman the right to asylum in the Federal Republic of Germany.
In principle, the arguments of the Office for Refugees are not without foundation. Not every offense committed by state employees, officials, soldiers, or police can be attributed to the state as an act of political persecution. The situation is different with regard to general attacks initiated by the authorities against certain groups of persons.
The Constitutional Court's finding on the role of the state in acts of violence committed by military personnel
In the decision I cite, the Federal Constitutional Court carefully examined this situation and classified the agency's opinion as erroneous. Prolonged torture and cruel treatment of the civilian population by government troops must be considered political persecution organized at the initiative of the state. The Federal Constitutional Court sent the case of the plaintiff from Kurdistan for review to the administrative justice system. The competent administrative court must issue a final ruling on the claim, taking into account the instructions of the Federal Constitutional Court. These guidelines on the criteria for examining the claim are sufficiently unambiguous. Therefore, the plaintiff can expect a favorable decision and the granting of refugee status.
A certain element of uncertainty is introduced by the provision on internal flight or migration alternatives. In cases of asylum seekers of Kurdish origin, the Refugee Office usually points to the possibility of internal migration from dangerous areas to calmer regions. For example, in Istanbul and large coastal cities of western Turkey, there are safe residential areas for the Kurdish population, to which the plaintiff could move. In cases of granting asylum to Russian citizens, the German Refugee Office usually points to the possibility of resettlement from the conflict regions of the Caucasus to the central regions of the Russian Federation.
The competent administrative court has the opportunity to point out to the plaintiff this alternative to fleeing to Germany and to refuse to grant her the requested status. Nevertheless, the decision of the Federal Constitutional Court on the suit of the Turkish Kurd allows hope for justice in other similar situations. In individual cases, one can achieve a departure by the courts from a view that is divorced from reality regarding the manner of action of government troops and paramilitary formations in conflict-affected territories. The parallels between the situation in Kurdistan and several regions of the former USSR suggest themselves.
Thomas PUE,
German lawyer.