DAMLA AND OTHERS v. GERMANY
Inadmissible
Antonio Pastor Ridruejo
The first applicant, Besse Damla, born in 1953, is the mother of the second to seventh applicants, Dilek Damla, born in 1977, Nadire Damla, born in 1981, Veysi Damla, born in 1983, Nurullah Damla, born in 1987, Emrullah Damla, born in 1988, and Veysel Damla, born in 1991. They are Turkish nationals of Kurdish origin and live currently in Norden (Germany). In the proceedings before the Court they are represented by Mr Reinhard Marx, a lawyer practising in Frankfurt am Main. In 1996 the applicants entered the Federal Republic of Germany together with the first applicant’s husband, respectively the other applicants’ father. On 7 October 1996 they applied for asylum. On 8 October 1996 when heard before the Federal Office for Refugees (Bundesamt für die Anerkennung ausländischer Flüchtlinge) they declared that there were Yezidis. The first applicant stated that she had been kidnapped in 1977 by Moslems, but that after two or three days she escaped. According to Yezidi customs a kidnapped girl could not return to her family. She therefore went to Batman where she met her future husband who, although being officially a Muslim, belonged to the Yezidi community. In 1992 her husband’s brother, the head of the village of Feqira, was murdered. Thereafter they were harassed by members of the State security service and their Muslim neighbours. In 1995 the first applicant’s husband was arrested for three days by members of the security forces and asked him for the reasons of his conversion to the Yezidi religion. A further stay in Turkey had been impossible for them. On 15 October 1996 the Federal Office for Refugees dismissed the applicants’ request as being manifestly ill-founded and invited them to leave the German territory within one week. The Federal Office did not consider that the evidence they adduced in support of fear of persecution to be reliable and doubted the credibility of their asylum claim. According to the Federal Office, the first applicant had ceased being a Yezidi at the moment of her marriage with a Moslem. She was not recognised as a Yezidi neither by the members of her family nor by the people surrounding her. The applicants could therefore not be considered as Yezidis. Finally the applicants had not alleged to be victims of political persecution as Kurds. On 28 October 1996 the applicants filed an action against the refusal of asylum and their envisaged expulsion and applied for an interim injunction (einstweilige Anordnung) requesting to stay their expulsion pending the administrative court proceedings. They repeated their previous submissions and referred to pending asylum proceedings of close members of their family some of which had been successful. They further stressed that on several occasions they had been interrogated and threatened by the Turkish police. Also their neighbours had treated them as Yezidis and the children had been insulted in school. Since Moslem fundamentalists had a strong influence in Batman, their situation there became unbearable. On 11 November 1996 the Hannover Administrative Court (Verwaltungsgericht) dismissed their request for an interim injunction. Confirming the findings of the Federal Office, the Administrative Court added that being a Yezidi was a matter of birth, not of faith. A marriage with a person belonging to a different religion was considered as a sin and sanctioned by the exclusion from the Yezidi community. The applicants were not Yezidis. There was no indication that their life was determined by this religion that their neighbours considered them as Yezidis. Unlike Yezidis practising their religion, the applicants were not subjected to persecution in Turkey. On 16 February 1998 the applicants renewed their request to be granted political asylum (Asylfolgeantrag). They alleged that their submissions in the previous asylum proceedings had not been correctly understood due to linguistic problems. The first applicant’s husband submitted that he too was born by Yezidi parents. When he was two years old, his mother had been kidnapped by Moslems. He then lived together with his mother and his Moslem stepfather. However, he and his mother had always maintained close contacts with the Yezidis in their surroundings and he had been brought up according to the Yezidi traditions. On 25 February 1998 the parish of the Norden Evangelic-Lutheran church granted the applicants church asylum. The first applicant’s husband was expelled to Turkey on 17 March 1998. On 26 February 1998 the Hannover Administrative Court dismissed the applicants’ renewed asylum request. The court observed that the applicants had failed to show that they had been prevented, through no fault of their own, from filing their new submissions in the previous proceedings. On 1 October 1999 the Hannover Administrative Court dismissed the action filed by the applicants on 28 October 1996 against the refusal of asylum and their envisaged expulsion. The Court considered the applicants’ submissions as unsubstantiated and contradictory. The first applicant’s submission, according to which she had been kidnapped by Moslems when she was young, was irrelevant for the purposes of being granted asylum, since this event occurred too long a time ago. Moreover, even if it were true that her uncle had been murdered, there was no evidence that the applicants were persecuted for their religious beliefs. It was true that Yezidis manifesting their religion were persecuted in Turkey. However, if in a case such as the present where the religion had not been practised or where after the marriage with a person belonging to a different religion the membership in the Yezidi community had come to an end, there was no likelihood of persecution. Accordingly, there was no need to take further evidence in this respect. Furthermore, persons of Kurdish origin had the possibility to live in the Western parts of Turkey, in particular in larger cities, where they did not risk direct or indirect persecution or an existence under the poverty level. On 16 December 1999 the Court of Appeal of Lower Saxony (Niedersächsisches Oberverwaltungsgericht) refused the applicants’ application for leave to appeal. The court considered that the Administrative Court had correctly assessed the evidence and had rejected the applicants’ requests to take further evidence in a convincing manner. The Administrative Court had not arbitrarily concluded that the applicant’s submissions were unsubstantiated. The Court furthermore found that the Kurds from the Eastern regions had generally a possibility to live in the West of Turkey. As to the question whether Yezidis who practised their religion in an Moslem environment, had to fear persecution by Moslems, the Court pointed out that this question had been answered affirmatively in the past but was irrelevant in the present case because the applicants were not Yezidis. On 17 March 2000 the applicants requested to reopen the asylum proceedings. When interviewed on 6 April 2000 before the Federal Office for Refugees, they submitted that the first applicant’s husband was a Yezidi. He had been excluded from his family when his mother married a Moslem. However, he and the first applicant lived according to the Yezidi faith. After the murder of the first applicant’s uncle in 1992 their neighbours realised that they were Yezidis. They were then harassed by the resident population and had to move house about ten times. Following the introduction of compulsory religious instruction in school, it became clear that the children were not Moslems and they were insulted and beaten. The applicants maintained that in case of their expulsion to Turkey their would face a real risk of being murdered. On 12 May 2000 1998 the Federal Office for Refugees refused to conduct new asylum proceedings. It took the view that the applicants’ submissions did not constitute new facts. Furthermore, the Federal Office did not consider the evidence they adduced in support of their fear of persecution to be reliable and doubted the credibility of their asylum claim. The applicants filed an action with the Oldenburg Administrative Court and applied for an interim injunction (einstweilige Anordnung) requesting to stay their expulsion pending the administrative court proceedings. On 29 May 2000 the Oldenburg Administrative Court dismissed this request on the ground that the applicants submissions were contradictory and not credible. Their claims had to be considered as completely fabricated. There was no evidence showing that they were of Yezidi origin and that they were persecuted when they had left their country nor was there a sufficient likelihood that they would be persecuted if they were to return to their country. However, there were no grounds justifying to quash the final judgments given by the Hannover Administrative Court. According to the Oldenburg Administrative Court, the applicants merely alleged an erroneous appreciation of the law and facts by the previous court instances. Their earlier and new submissions concerning their membership in the Yezidi community being unsubstantiated, there was no need to take further evidence in this respect. The applicants filed a constitutional complaint against the refusal of the requested interim injunction. On 10 July 2000 a panel of three judges of the Federal Constitutional Court (Bundesverfassungsgericht) declined to accept the applicants’ constitutional complaint for adjudication.