Baden-Württemberg – Higher Administrative Court, 29.11.2019, A 11 S 2374/19, A 11 S 2375/19

The Higher Administrative Court stopped the procedures to ask the ECJ on how to interpret the Art. 15 (c), Art. 2 (f) of the directive 2011/95/EU concerning the requirements for the existence of a serious and individual threat by reason of indiscriminate violence in situations of international or internal armed conflict. The ECJ has already decided that a person can be in a situation of serious and individual threat even if it is not based on factors particular to his/her personal circumstances. A situation of serious and individual threat can also be given in an exceptional case where the degree of indiscriminate violence is sufficiently high that there are reasonable grounds to suspect that due to his/her mere presence in the respective area can the individual can run a real risk to be exposed  to such threat. However, the ECJ has not yet decided on the criteria to assess such risk. Even though the national courts have to establish the relevant facts of the case it is the ECJ which determines how to interpret criteria of its directives.

The Court states that one possibility would be to look at the number fatalities that were caused by the conflict. In that context a high number of fatalities would justify the definition as exceptional circumstances that was established by the ECJ. However, the Court also asserts that a focus on the number of fatalities as exclusionary element could infringe the wording, as well as the intent and purpose of the provision. It rather seems to be interpreted in a way in which numbers of fatalities are to be treated as a mere indicator for a high degree of indiscriminate violence next to other factors that have to be assessed cumulatively. Furthermore, according to the Court the subsidiary protection’s preventive character will be counteracted if actual human suffering is a necessary pre-condition to grant protection.

Additionally, systematic considerations must be made. Although Art. 15 of the directive is a norm that has to be interpreted autonomously the ECJ always takes into account Art. 3 ECHR that provides similar protection and corresponding jurisprudence of the European Court of Human Rights (ECtHR). The Higher Regional Court asserts that if Art. 3 ECHR has to be taken into account in the assessment there should not be stricter criteria for individuals who seek protection than postulated in Art. 3 ECHR. This reasoning is further reinforced by the fact that secondary law of the European Union is to be interpreted in compliance with the fundamental rights (Art. 4 of the Charter of Fundamental Rights) but according to Art. 52 (3) of the Charter has the same scope as Art. 3 ECHR. When applying Art. 3 ECHR there has to be a thorough assessment taking into account all circumstances of the individual case cumulatively. The existence of a real risk to be exposed to indiscriminate violence has to be assessed by looking at a list of several factors that is not exhaustive. Criteria can be the number of fatalities, injured and displaced people, the characteristics and tactics of warfare and the geographical distribution of the conflict.

However, the European jurisprudence concerning the matter is not consistent.

German case law states that a quantitative assessment  of the risk to be killed or injured has to be made taking into account the proportion of fatalities to population in the area in question. It is a pre-condition for the thorough assessment of the serious and individual threat. In this context the Federal Administrative Court of Germany has not set a minimal threshold but decided in a case that a probability of being killed or injured of 0,12 % or 1:800 per year is not enough to fulfil the requirements. According to the Federal Administrative Court the low probability excludes further considerations since a relevant threat cannot be justified in anyway. While Courts in France and the UK also give more importance to quantitative considerations, courts in Belgium, Switzerland and Austria focus on a more holistic assessment. The UNHCR also advocates for a holistic approach that takes indirect and long-term consequences of a conflict into considerations and reinforces the necessity for considering human rights protection. Also, the pertinent literature is in favour of a broad examination of the criteria.

Depending on how the ECJ answers the questions the cases of the claimants have to be decided differently:

Although the Higher Administrative Court decided that subsidiary protection according to § 4 (1) AsylG cannot be granted it stated that there is indeed a real risk of being exposed to an individual threat by merely being present in the conflict area. This is based on several facts: the intertwined nature of civilians and combatants (especially non-state actors like the Taliban), the distribution of the conflict in the Nangarhar province with great parts of the territory not being under the control of one party and the resulting attacks by governmental forces and rebels that often target civilian facilities. Furthermore, the incapacity of the state to protect its citizens in a volatile environment with several rebel groups that consciously use terror tactics and indiscriminate violence against civilians is striking. In general there is a high level of violence with many displaced people in the province. Also, internal protection is not possible for the claimants as their personal circumstances (small children, no social network) impede a transfer to other regions like Kabul.

However, their cases will only be successful if a holistic assessment of all circumstances is made and not excluded by the quantitative threshold mentioned above. The quantitative assessment shows a probability between 0,08 and 0,11 % (between 1:1190 and 1:800) of being injured or killed which would not meet the threshold for making further holistic considerations.