X v. GERMANY
Inadmissible
André Potocki;Angelika Nußberger;Erik Møse;Mārtiņš Mits;Nona Tsotsoria;Síofra O’Leary;Yonko Grozev
6. The applicant arrived in Germany in 2002. In the same year, and again in 2011, his asylum requests were refused by the competent domestic authorities. In 2012 the applicant was granted a residence permit, which was subsequently prolonged until March 2018. 7. In 2014 the Federal Office for the Protection of the Constitution (Bundesamt für Verfassungsschutz) investigated the applicant owing to his alleged ties to the “radical Islamic scene”. In December 2014 the applicant was ordered not to leave Germany, as it was suspected that he was going to travel to Syria to join the so-called “Islamic State”. A request to lift this order was denied in 2016 as the security agencies possessed information indicating that the applicant was still in contact with the “radical Islamic scene”. 8. In January 2017 the police obtained intelligence about the applicant, including records of online chats in which the applicant stated that he would be willing to participate in an “operation” in Germany. Subsequently the public prosecutor’s office launched an official investigation on the grounds of “encouraging the commission of a serious violent offence endangering the state” and the applicant’s flat was searched. During the search several smartphones, tablets and other devices were seized. On the devices 42,000 pictures and 1,000 videos were found which showed violent acts in an Islamic context and also included a manual for building explosive devices. 9. On 13 March 2017 the Bremen Administration ordered the applicant’s deportation to Russia, as he constituted a threat to national security. He was suspected of being willing to participate in or carry out a terrorist attack in Germany. The decision was based on intelligence gathered by the security agencies (see paragraphs 7 and 8 above). Although the authorities concluded that he had not yet reached the planning stage, he nonetheless constituted an abstract danger for society. This abstract risk was sufficient to overrule the applicant’s right to respect for private and family life, given the fact that he had grown up and lived in Germany for the previous 15 years. Moreover, there was no risk for the applicant under Article 3 of the Convention as the Russian authorities would not be informed about the intelligence that had been gathered and it was up to him not to join the “radical Islamic scene” in Russia after his deportation. 10. The applicant challenged the decision before the Federal Administrative Court and applied for an interim measure suspending his deportation for the duration of the main proceedings. During the interim proceedings the Federal Administrative Court requested further information from the German Foreign Office concerning the expected treatment of the applicant after deportation to Russia. Based on conversations with employees of the Russian NGO “Committee Against Torture” the Foreign Office responded that it could be expected that the applicant would be questioned and monitored by security agencies, but that it would be highly unlikely that he would be pre-emptively tortured. 11. On 13 July 2017, in a detailed decision of 63 pages, the Federal Administrative Court refused to grant the interim measure. It concluded that the assessment of the security risk for the applicant was in essence correct. However, unlike the Bremen Administration, the court considered that the Russian authorities would be acquainted with the reasons for the applicant’s deportation. Therefore, due to the risk of torture and ill-treatment the applicant could not be deported to his home region of Dagestan. However, he could be deported to another part of Russia. After considering several current reports on the situation, the court held that there were no specific indications that the applicant would be detained or tortured elsewhere in Russia or be forcibly brought to Dagestan on the basis of his previous conduct in Germany. It found that the publicly available reports were not applicable to the present case as they concerned persons who were in one way or another connected to the conflicts in Dagestan and Chechnya, which the applicant was not. The most relevant information stemmed from the Committee Against Torture (see paragraph 10 above), which had provided information specific to the present case to the German Foreign Office. According to this information the applicant would probably be questioned and monitored by security agencies in Russia, but it was highly unlikely that he would be tortured. Consequently, the court concluded that even though it could be expected that the applicant would be closely monitored, any further action by the Russian authorities would depend on the applicant’s future conduct in Russia. As regards Article 8, the court held that even though the applicant would face certain problems due to not having family in other parts of Russia and everyday discrimination based on his Caucasian ethnicity, he should still be able to settle in the suburbs of Moscow and find a job, since he had a basic knowledge of the Russian language. 12. On 26 July 2017 the Federal Constitutional Court – in a reasoned decision – refused to grant an interim measure or to admit the applicant’s constitutional complaint for adjudication. While criticising that the Federal Administrative Court had not assessed in sufficient depth whether the applicant could live and find work outside of the Northern Caucasus without facing the risk of inhuman or degrading treatment at the hands of the Russian authorities, it pointed out that the Federal Administrative Court had nonetheless correctly based its decision on current reports concerning the situation of persons of Northern Caucasian ethnicity returning to Russia and information requested from the German Foreign Office and the Federal Office for Migration. It therefore concluded that the Federal Administrative Court had considered all possible risks the applicant would face and had also correctly found that the applicant could be deported to Russia. 13. The main proceedings before the Federal Administrative Court are still pending. 14. The deportation of a so-called “Gefährder” (a potential offender, who poses a threat to national security) is regulated in section 58a of the Residence Act (Aufenthaltsgesetz), which reads: “(1) The supreme Land authority may, based on an assessment of the facts and without a prior expulsion order, issue a deportation order for a foreigner in order to avert a special danger to the security of the Federal Republic of Germany or a terrorist threat. The deportation order shall be immediately enforceable; no notice of intention to deport shall be necessary. ...” 15. The Human Rights Watch report “‘Invisible War’ ‒ Russia’s Abusive Response to the Dagestan Insurgency” of 18 June 2015 outlines several human rights violations during counter-insurgency operations in Dagestan, including arbitrary detention, torture and forced disappearances. It also states that the authorities have cast an excessively wide net by essentially treating Salafis as criminal suspects without charging them with any specific offence. 16. A report drawn up by the Swiss Refugee Council in 2014 (“Russland: Verfolgung von Verwandten dagestanischer Terrorverdächtiger außerhalb Dagestans”, 8 September 2015) describes the situation of family members of alleged terrorists involved in the conflict in Dagestan. According to it, family members were increasingly the targets of persecution by the Russian authorities even outside of the Northern Caucasus. The methods employed by the Russian authorities included arbitrary arrests and criminal prosecution, and disappearances. 17. An updated report by the Swiss Refugee Council regarding the human rights situation in Chechnya (“Russie – Tchétchénie – Mise à jour: situation des droits humains”, 13 May 2016) illustrates several examples of Chechens, with a prior connection to the conflict in Chechnya, having been detained, tortured and killed after returning to Russia. The NGO also reports that the Chechen and Russian authorities cooperate closely and that several persons had been forcibly returned to Chechnya from other parts of Russia. 18. The International Crisis Group in its report “The North Caucasus Insurgency and Syria: An Exported Jihad?” of 16 March 2016 describes grave human rights violations, including enforced disappearances, summary executions and the widespread occurrence of torture in Dagestan and Chechnya. It also describes the preventive registration of those suspected of adherence to fundamentalist strands of Islam as one of the key control methods across the Northern Caucasus. After incidents such as clashes between security forces and insurgents, or terrorist acts, the individuals on these lists were faced with the risk of detention and interrogation, which often involved violent or degrading methods.