Are Serbs really Slavs?
I.1. The applicant entered Austria on January 20, 2000, bypassing the border control, and requested asylum on January 21, 2000.
2. Questioned on March 13, 2000 at the Federal Asylum Office, Traiskirchen branch, about his reasons for fleeing, he essentially stated that he had left Kosovo because he feared that men of the former KLA would one day be killed against Muslim Slavs in the course of acts of violence against Muslims to become. In July 1999, Muslim members of this ethnic group were beaten in Dragash / Dragas because they spoke Bosnian. Also, businesses of Muslim Slavs have been destroyed several times by arson attacks. Since the summer of 1999 there have been frequent exchanges of fire in his home village and in the surrounding villages. During the same period, several Muslim Slavs were killed by Kosovar Albanians in Dragash, as was the imam of a mosque.
3. With the decision of March 15, 2000, Zl. 00 00.832-BAT, the Federal Asylum Office rejected the asylum application of the applicant according to § 7 AsylG (ruling point I.) and at the same time stated that his rejection, deportation or deportation "in the BR -Yugoslavia, Province of Kosovo "according to § 8 AsylG.
The reason given is that the appellant's information is credible, that the appellant's reference to acts of violence by Kosovar Albanians against Muslim Slavs is not sufficient for granting asylum because the appellant was not personally affected by the measures. Insofar as the appellant claimed that KFOR was not in a position to provide protection in the event of an attack, it should be noted that it is beyond the possibility of a peace force to prevent every conceivable third party attack and to protect every citizen comprehensively at all times.
4. The appeal submitted by fax to the Federal Asylum Office on April 6, 2000, and therefore at least timely, is directed against both points of this decision, which was sent to the applicant on March 15, 2000. Essentially, this submits that the Authority's point of view contradicts the OSCE report "As Seen, As Told" of December 6, 1999.
5. On April 14, 2000, the Federal Asylum Office received another brief from the applicant, which was designated as an appeal. He also stated that the reports show the situation in Kosovo and that Muslim Slavs are increasingly becoming the opera of attacks. Incidentally, the use of Serbo-Croatian or Bosnian in Kosovo is sufficient to trigger acts of persecution.
6. At the first date of the public appeal hearing at the Independent Federal Asylum Senate, the appellant alleged that he had left Kosovo because he had reported the "arrest" of his brother-in-law by members of the former KLA at the German KFOR post in Dragash, which is why he feared acts of revenge . When asked why he had not stated this when he was questioned at the Federal Asylum Office, the applicant stated that he knew the interpreter used at the time, a Kosovar Albanian, and therefore feared that something might happen to his family members who were still living in Kosovo.
7. At the request of the Independent Federal Asylum Senate, the Kosovo Information Project (KIP) run jointly by the ICMPD and IOM announced that neither the German nor the Turkish KFOR contingent had any records of the complaint made by the applicant (according to its information).
8. At the second hearing on November 15, 2000, the above-mentioned information from the KIP and the situation of minorities in Kosovo, especially the Goran ethnic group in Dragash / Dragas, were discussed with the applicant.
II. The Independent Federal Asylum Senate considered the appeal as follows:
1. It is determined:
1.1. About the applicant:
The applicant is a Yugoslav citizen and belongs to the Goran ethnic group - mainly Muslim Slavs living in the Dragash / Dragas community. He comes from a village, Dragash / Dragas municipality. He speaks Serbo-Croatian or Bosnian, but not Albanian.
1.2. On the situation of the non-Albanian minorities, especially the Gorans, in Kosovo:
The situation in Kosovo remains tense and the absence of an adequate civilian police force is palpable. The massive emigration of Kosovar Serbs, set in motion by an increasing number of incidents committed by Kosovar Albanians against non-Albanian Kosovars, continued in July 1999 (EADRCC Kosovo Humanitarian Situation Report No. 146 of July 16, 1999 , Euro-Atlantic Disaster Response Coordination Center). Most of the almost 97,000 non-Albanian refugees at the time were housed in the Serbian town of Kraljevo and the surrounding area, according to UNHCR. More than 40,000 were in the capital, Belgrade, while almost 23,000 Serbs, Roma and other non-Albanians fled to Montenegro (APA of July 26, 1999). According to a UNHCR spokeswoman, up to 240,000 Serbs and other non-Albanians fled Kosovo and are now living in Serbia and Montenegro. The possibility of repatriating these people to Kosovo is very small in winter because of the extremely difficult situation for the non-Albanian population in the province. People cannot be forced to return to regions where their lives are in danger. Only 10,000 are housed in shared accommodation, while others have found refuge with host families in central Serbia and Montenegro. An increasing number of those who lived with host families had approached UNHCR and asked for help, which meant that they could no longer stay with the host families (FBIS Transcribed Text UNHCR: Up to 240,000 Serbs, Non-Albanians Fled Kosovo, FBIS -EEU-1999-1116, (AFP) November 16, 1999, attachment to ACCORD research from November 30, 1999, FRY, Serbia, Montenegro, Kosovo:
Attacks against Muslim Slavs in Kosovo were also reported in Albanian and Bosnian newspapers (cf. Koha Ditore, August 2, 1999; Dani, October 1, 1999). On January 12, 2000, the APA reported the murder of four members of a Muslim family in Kosovo. The head of the UN administration in Kosovo, Bernhard Kouchner, announced that they belonged to the Bosnian Muslim minority in the province. On the same day, the crime statistics were commented on, according to which the violence statistics had fallen considerably since the start of the deployment of troops under NATO command and by international police in July last year. If there had been 40 to 45 acts of violence between the majority of the Albanians and Serbs in July 1999, there are now around three to four violent crimes per week, including murders. This information was based on an internal UN report. However, an official from the UN Mission in Kosovo (UNMIK) admitted that the flight of most Serbs from the province had led to a decrease in attacks by Kosovar Albanians; but this is not the most important factor in the decline in violence. According to the report, around 100,000 Serbs are still living in Kosovo today; they are safer than before, although the province "is still very dangerous for minorities" (APA, January 12, 2000). On February 21, 2000 it was reported that since the end of the NATO air strikes in June 1999, 127,000 Roma had had to leave their homes in Kosovo. Now only about 10,000 mostly elderly Roma lived there. Despite the UN police and KFOR soldiers in Kosovo, numerous Roma have been killed or abducted in recent months (APA, February 21, 2000). The flare-up of ethnic resistance in Kosovska Mitrovica calls on international troops to calm the situation there. In the Serbian border region with Kosovo, Serb troop movements give cause for concern (APA, February 20 and 21, 2000).
The situation of ethnic minorities in Kosovo remained precarious even after the UNHCR / OSCE report of November 3rd, 1999: Informed observers agree that a climate of violence and impunity as well as widespread discrimination, harassment and intimidation against non-Albanians prevail. The combination of security risks, restricted freedom of movement and the lack of access to public services (in particular to education, medical / health care and pensions) are the determining factors for the emigration of Serbs and other non-Albanian groups from Kosovo. Attacks against minorities, especially Slavic Muslims and Roma / Ashkali communities in the Pec region, have increased since the beginning of October. Multiple murders, a number of extortion cases, evictions and widespread incidents of threats and harassment, particularly in Pec and Istok communities, have been reported. On May 24th, 2000 a member of the Gorani was shot and wounded by an Albanian youth in the center of Pristina because she did not speak Albanian (UNHCR / OSCE of November 3rd, 1999, "Overview of the Situation of Ethnic Minorities in Kosovo"; UNHCR / OSCE Update on the Situation of Ethnic Minorities in Kosovo, May 31, 2000). Since September 1999, Slavic Muslims have been increasingly victims of attacks. In the village of Vitomirica near Pec, which is almost exclusively populated by this population group, threats and attempts to intimidate the local population increased from the beginning of October. Some were beaten up and driven from their homes. On October 2nd, 1999 two Muslim Slavs were shot at in their homes, one was killed in the process. Another was found murdered on October 6, 1999. In Pristina, too, Slavic Muslims risk physical assault when they go shopping on a daily basis, but also when attempting access to medical help, because they cannot speak Albanian (SFH, Situation Overview Kosova - October 1999, attachment to ACCORD research dated November 30, 1999, FRJ, Serbia, Montenegro, Kosovo:
In Kosovo, Muslim Slavs have occasionally been observed and treated by Serbian authorities as being close to Albanian political endeavors. On the other hand, radical Albanian groups might consider the Muslim Slavs to be associated with the Serbian authorities (UNHCR Position Paper: Asylum-Seekers from the Federal Republic of Yugoslawia: Particular Groups, October 1, 1999). Slavic Muslims were partially integrated into the political system of the Serbian-Yugoslav central government. The Muslim villages and shops were usually not destroyed by the Serbian and Yugoslav units during the Kosovo conflict. Against this background, tensions exist between the Kosovar Albanians and the Slavic Muslims (Federal Office for Refugees, "Slavic Muslims and Torbes in Kosovo", December 1st, 1999).
Even if the crime rate has fallen, it still remains unacceptably high and indicates that ethnically motivated crimes are continuing on a regular basis. Minorities remain vulnerable to attack without protection. In addition, minorities are severely restricted in terms of their freedom of movement and access to the labor market; only a few have work. As a result, many are heavily dependent on humanitarian support. Minorities also face enormous difficulties in accessing health and educational services. There is little sign of improvement for Kosovar Serbs and Muslim Slavs. The return of minorities to Kosovo is currently not recommended by UNHCR and also not supported (UNHCR / OSCE, "Assessment of the Situation of Ethnic Minorities in Kosovo", 02/11/2000; UNHCR / OSCE Update on the Situation of Ethnic Minorities in Kosovo , May 31, 2000). The use of the Serbian language is not without problems for the Slavic Muslims under the changed conditions in Kosovo: The regular completion of school and university education is currently uncertain, even in the capital Pristina the public use of the Serbian mother tongue is in everyday activities such as this Shopping, to problems. For the entire minority of Slavic Muslims, the restricted freedom of movement and access to institutions such as schools, universities, workplaces, administrations and hospitals are likely to become increasingly a problem in the near future (Federal Office for Refugees, "Slavic Muslims and Torbes in Kosovo", 01.12.1999 ).
At the beginning of June 1999 the UN was given the task of setting up the civil administration in Kosovo. As a result, UNMIK, a representative of the international community with extensive powers, took over the temporary administration in Kosovo. Your goal is the reconstruction and organization of Kosovo. KFOR troops - around 42,000 men - took over territorial power in exercising their international security presence. All legislative and executive power has passed to UNMIK. Since January 14, 2000 there has been a new, joint government of UN employees and Albanian politicians, through which Albanians participate in power. By January 31, 2000, 1,970 police officers of various nationalities were available across the province, 101 of them in the Pec region and 258 in the Kosovska Mitrovica region. This number is far below the approved figure of 4,718 and the recently requested figure of 6,000. The lack of sufficient personnel prevents the police from being able to serve the needs of the population, especially minorities (Federal Office for the Recognition of Foreign Refugees, December 1999, "FR Yugoslavia - Information - The current situation in Kosovo"; APA, 14.01. 2000; APA, June 10, 1999; UNHCR / OSCE, "Assessment of the Situation of Ethnic Minorities in Kosovo", February 11, 2000). The lack of a functioning judiciary is one of the greatest challenges in Kosovo. The effects can be felt by everyone, but the lack of a completely independent and impartial judiciary has particularly severe consequences for members of minorities. The UN administration established an independent and multi-ethnic court system by ordinance, but only a few minority members exercise the function of judge. Observations indicate a different treatment of minorities compared to the majority population in decisions about arrest and persecution. In mid-January 2000, the statistics on imprisonments and releases showed that of a total of 3,747 people arrested by KFOR, only 271 were in the five operational prisons in Kosovo. From July 1999 to January 17, 2000, 862 people were brought before examining magistrates, 368 of whom were released (42.6%). Minorities appear to be more likely to remain in detention, while members of the ethnic majority are more likely to be released even if there is strong evidence against them. In the current climate, where local judges may face pressure in sensitive cases involving suspects or victims of different ethnicities, the ability of judges to judge fair, impartial and purely legal judgments can be challenged. More concrete is a carefully researched report by the Lawyers Committee for Human Rights from the end of October 1999, according to which there are clear indications of a lack of will to protect at the level of courts staffed by local judges: approximately 40% of offenders arrested by KFOR are Immediately released by order of the judge, even in cases where there is clear evidence. It should be added that, due to its personnel restrictions and limited stopping options, KFOR primarily focused on cases of the most serious crimes, such as murder, attempted murder, imminent threats and rape. There are indications that these releases are often the result of political interference from outside (Federal Office for the Recognition of Foreign Refugees, December 1999, "FR Yugoslavia - Information - The current situation in Kosovo"; APA, January 14th, 2000; APA, June 10th 1999; UNHCR / OSCE, "Assessment of the Situation of Ethnic Minorities in Kosovo", February 11, 2000; Kälin, "The refugee situation of Roma and Ashkali asylum seekers in Switzerland", November 27, 1999). UNMIK and KFOR continue to have great difficulties establishing law and order in Kosovo. Apart from a large number of "usual" crimes, attacks on Serbs and other non-Albanian communities take place almost daily. The growing ethnic polarization in Mitrovica as well as the regular outbreaks of violence there promote hostilities between Albanians and Serbs in other regions as well. Although UNMIK is constantly forming local police units and has appointed both new public prosecutors and judges, at the moment it is still impossible to speak of an effective and independent judiciary and executive (UNHCR, Ref.No. 032/2000, 02/22/2000). Even if the security situation has gradually improved thanks to the commitment of KFOR and UNIP, the security of minorities in Kosovo cannot always be reliably guaranteed, even in ethnic enclaves and under KFOR presence (Federal Foreign Office Bonn, "ad hoc report on the current Development of the situation in Kosovo ", December 8th, 1999).
A report by the German Federal Office for the Recognition of Foreign Refugees from December 1999 ("FR Yugoslavia - Information - The current situation in Kosovo") assumes that, among the other minorities, mainly Slavic Muslims and the Slavic Gorani group are at risk .Tensions, attacks and intimidation had been reported from Pristina, Mitrovica, Prizren and Pec. Increased exodus of Muslim Slavs can be seen from Pristina and Mitrovica, among others. The security situation only appears to be stable for ethnic Turks.
The security situation of members of minorities did not ease in 2000 either: Although the situation of the Roma in western Kosovo has improved, the overall situation of the minorities remains precarious. Minorities remain at a disadvantage in the justice system; that they act as "scapegoats" in an unfair justice system has been borne out by cases. The observation of ongoing proceedings has shown that judges do not make impartial decisions in cases involving minorities. After all, freedom of movement remains massively restricted.
There are currently between 9,000 and 11,000 gorans living in the Dragash / Dragas district. The fact that their number is lower than in the year is due to the fact that some of the Gorans have left Dragsh as a result of a series of attacks. At the end of September 2000, Goran houses were bombed. Many Gorans are still very reluctant to use their own language because as a consequence of this use they are confronted with restrictions on access to employment and basic services (cf. UNHCR / OSCE, "Assessment of the Ethnic Minorities in Kosovo", 23.10.2000).
1.3. On the situation in other parts of the Federal Republic of Yugoslavia:
The economic and social situation of Muslim Slavs in Serbia and Montenegro must be seen against the background of the generally precarious economic and social situation in the Federal Republic of Yugoslavia. Economically, Serbia is completely down. Two thirds of all households have an income of less than 100 DM. Large parts of the population are impoverished, a middle class no longer exists. The Serbian population is fully occupied with securing their subsistence level. Some basic foodstuffs are subsidized by the state and can therefore be bought cheaply, but there is also a shortage in this regard, so that a large part of the means necessary for survival has to be obtained on the black market. Such precarious living conditions usually hit the marginal groups even harder because they were already economically and socially disadvantaged under normal circumstances. Despite anchoring specific minority rights in the Yugoslav constitution, it became increasingly difficult for members of the minorities to actually implement these rights. Although no concrete data are currently available on the economic and social situation of the Muslim Slavs in Serbia / Montenegro, it must be concluded from the circumstances outlined above that the economic and social situation for this ethnic group is precarious, especially since the sanjak has always been part of the Belonged to regions in the former Yugoslavia that were least developed. For example, income in Novi Pazar was only 53% of the national average. The predominantly Bosniak-populated communities in Sanjak received up to five times less government support than the neighboring communities populated by Serbs (Swiss Refugee Aid from December 21, 1999, domestic escape alternative for Bosnian Muslims from Kosovo).
With regard to accommodation, state support and aid through aid organizations, there is a difference between Muslim Slavs who lived in the Sanjak before the war and can return to their place of origin and social network, and those Muslim Slavs who were last resident in Kosovo and therefore in Sanjak have no social and economic relationships to distinguish. While the first group will find it less difficult to secure a livelihood and accommodation when they return to their place of origin, it cannot be assumed for the second group that the state or aid organizations have the necessary means to provide for such new settlers. The refugees and internally displaced persons are housed in absolutely precarious circumstances throughout the territory of Serbia and Montenegro. Although a law regulates the status of refugees and displaced persons, the actual enforcement of such claims depends on the local authorities. Even the Serbs, who belong to the group of internally displaced persons, form a kind of minority who, like an ethnic minority, are discriminated against in access to the labor and housing market. Under the given circumstances, it cannot be assumed that the livelihoods in the Sanjak are secure for members of the Muslim Slavs who were last resident in Kosovo. For refugees from Kosovo, the supply and accommodation situation in the rest of the Federal Republic of Yugoslavia is also precarious; there is practically no access to the labor market, even if there is no evidence of a targeted refusal of access to the labor market (Swiss Refugee Aid of December 21, 1999, domestic escape alternative for Bosnian Muslims from Kosovo).
UNHCR emphasized that the security of the Muslim population in Montenegro is generally not endangered and that there are no indications with regard to Serbia either that Slavic Muslims, both local residents and those who fled to Serbia from Kosovo, generally face special problems or problems. Dangerous situations would be exposed, but this does not exclude discrimination or persecution in individual cases (UNHCR of 08.09.1999, AUS / MSC / HCR / 268). In the information from December 22nd, 1999, AUS / MSC / HCR / 364, UNHCR once again confirms that Muslim Slavs in Serbia and Montenegro do not generally have to fear persecution on the basis of their religion or ethnic origin. There are no indications that their freedom of movement within the Federal Republic of Yugoslavia is restricted. Muslim Slavs - like all other Yugoslav citizens - in principle have access to the labor market and to all other public institutions.
In a comparable case of a Muslim Slav it was further stated that he and his family should be able to enter the Federal Republic of Yugoslavia without any problems and settle anywhere in Serbia and Montenegro, provided that they are all Yugoslav citizens and have the necessary documents. However, due to the fact that the persons concerned would not have the opportunity to return to Kosovo, it should be taken into account that a return would be equivalent to an internal displacement (UNHCR of 22.12.1999, AUS / MSC / HCR / 364).
During the economic crisis, the economic and social situation in Serbia and Montenegro is difficult for all groups. Various quarters describe the situation for the local population, the 500,000 refugees from ex-Yugoslavia and the 240,000 internally displaced persons from Kosovo as a humanitarian catastrophe. According to a study by the United Nations, 6.8 million people in Serbia and Montenegro can be described as impoverished. H. that their monthly income is insufficient to buy essential food. The unemployment rate is around 40% (UNHCR of December 22, 1999, AUS / MSC / HCR / 364).
The state welfare system has largely collapsed and most of the people in need of protection can no longer even be registered because they are not receiving any support anyway. According to the World Health Organization (WHO), the public health system is on the verge of bankruptcy. A large number of people therefore turn to the Red Cross for one hot meal a day. Humanitarian support for internally displaced persons is provided by both international and national organizations, but the resources available are insufficient to provide assistance to all those in need. On the basis of the above, UNHCR advises against returning the Muslim Slavs concerned and their families to the Federal Republic of Yugoslavia (UNHCR of December 22, 1999, AUS / MSC / HCR / 364).
The proceedings did not reveal that the economic situation in Yugoslavia had significantly improved after the end of Slobodan Milosevic's rule. Due to the extensive power cuts around Christmas 2000, it can rather be assumed that the economic situation of Yugoslavia has deteriorated.
2. The established facts result from the following assessment of evidence:
2.1. The findings on the identity and origin of the appeal applicant are based on the personal document submitted by him and on his credible statements in this regard.
2.2. The findings on the situation in the Federal Republic of Yugoslavia are based on the sources cited in the findings. Since the reports are based on a large number of different, independent sources and yet present an overall picture that is consistent in the core statements and without significant contradictions, there is no reason to doubt the correctness of the situation portrayals. In addition, the information is usually based on research by people or organizations working on site, who are probably best able to assess the situation due to their presence on site.
3. Legally follows:
3.1. According to Section 66 (4) AVG, the appeal authority must always decide on the matter itself, provided the appeal is not rejected as inadmissible or delayed. It is entitled, both in the verdict and with regard to the justification, to replace that of the sub-authority and to change the contested decision in any direction.
3.2. Pursuant to Section 7 AsylG, the authority must grant asylum seekers upon application by notification if it is credible that they are threatened with persecution in the country of origin within the meaning of Article 1 Section A Number 2 of the Geneva Refugee Convention (GFK) and none of the conditions in Article 1 Section C or F of the GFK there are reasons for termination or exclusion.
Refugees within the meaning of Art. 1 Section AZ 2 of the GFK are those who are outside their home country and not in their home country for well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a certain social group or political convictions unable or unwilling, in view of that fear, to avail himself of the protection of that land; or who is stateless, is outside the country of his habitual residence as a result of the above circumstances and is unable or unwilling to return to this country in view of this fear.
The central element of the term refugee is the well-founded fear of persecution. Such is the case if it is objectively understandable in the light of the asylum seeker's special situation, taking into account the circumstances in the persecuting state. It does not matter whether a certain person is actually afraid in a specific situation, but whether a person gifted with reason would be afraid in this situation for reasons of convention. Persecution is to be understood as an unjustified interference of considerable intensity in the sphere of the individual to be protected, which is suitable to justify the unreasonableness of claiming the protection of the home state or the return to the country of the previous stay (see VwGH 09.03.1999 , 98/01/0370). There is a risk of persecution if there is a significant likelihood of persecution; the remote possibility of persecution is not sufficient (VwGH 23.09.1998, 98/01/0224). The risk of persecution must be current, which means that it must be present at the time the decision is issued. Past acts of persecution that have already been carried out can represent an essential indicator of an existing risk of persecution in the evidence procedure, whereby a prognosis has to be drawn up for this according to the nature of the asylum decision (see VwGH 09.03.1999, 98/01/0318). The risk of persecution must be due to the reasons stated in the Geneva Refugee Convention and must in turn be the cause of the person in question being outside their home country or the country of their previous stay. The risk of persecution must be attributable to the country of origin or the state of the last habitual residence, whereby imputability not only means a cause, but also a responsibility in relation to the existing risk of persecution. If the asylum seeker has the option of staying in an area of his home country in which he does not have to fear persecution, there is a so-called domestic escape alternative which excludes the granting of asylum (see VwGH 24.03.1999, 98/01 / 0352).
In its decision of March 9, 1999, 98/01/0370, the Administrative Court recognized that the risk of persecution cannot be derived exclusively from individual persecution measures taken against the individual. Rather, it can also be justified in the fact that targeted measures are regularly taken against third parties, namely because of a quality that the person in question shares with these persons, so that there is the justified assumption that he (also) could be exposed to such measures regardless of individual moments .
3.3.1. The reasons for the ongoing persecution against Goranen, d.s. Muslim Slavs living primarily in the Dragash / Dragas district are diverse: On the one hand, they are suspected - by the ruling group in each case - of supporting the other side; they are exposed to attacks simply because they speak Serbo-Croatian or Bosnian; They live as a minority in an area that is supposed to pass into the majority administration of the Kosovar Albanians, who have hitherto been massively oppressed by the Serbs, who now - apparently for emotional reasons - exercise their power unrestrained in the form of illegitimate acts, and the prospect of extensive impunity from opposite The crimes committed by the Muslim Slavs minority continue to encourage them to do so. The appellant - who does not speak Albanian - must fear that, like numerous other Gorans in Dragash, he would be the victim of physical attacks - obviously serving "ethnic cleansing". Against the background that the violence against members of his ethnic group in Kosovo has not diminished despite the presence of the police and KFOR since September / October 1999, the appellant has a significant probability to fear persecution on grounds of nationality.
Based on the findings on the threat situation facing the Goran ethnic group, it remains to be seen whether the applicant's claim that he would have to fear acts of revenge by the former KLA after returning to Kosovo because he reported the arrest of his brother-in-law by KLA people to the KFOR post is true .
The fact that the attacks to be anticipated are not impairments of a general nature that should be accepted by everyone is shown on the one hand by the fact that the acts of persecution are not directed against members of all ethnic groups in Kosovo, but specifically against members of non-Albanian minorities, on the other hand on the intensity of the pursuit. The determined evictions of properties, night intimidation, kidnappings, bomb attacks, robberies, murders and the like. leave in connection with the freedom of movement restricted to ethnic enclaves, the refusal of public services in the fields of education, the labor market, health and social services, as well as in connection with the lack of comprehensive supply options for the minorities by aid organizations, the impossibility of constant house surveillance by the police and / or KFOR, and the unwillingness of UNHCR to support and supervise the return of minority members, the return of the applicant to the country of origin appear unreasonable. This means that the intensity of persecution required by asylum law must also be affirmed.
3.3.2. Acts of persecution are only relevant for asylum if they either originate directly from the state authorities in the home country or if the state concerned is unable or unwilling to prevent acts of persecution originating from other authorities (cf. e.g. VwGH June 25, 1997, 95/01/0632; 18.09.1997, 95/20/0707).
The lack of protection against gorans can be attributed to the state, whose power is currently exercised by UNMIK with the participation of Albanian politicians and, in the area of justice, by "independent" judges predominantly of Albanian nationality. As far as state power is represented by the international community in the form of police units and KFOR, it is currently unable to offer effective protection to the minority of Slavic Muslims due to a lack of resources and the recent escalation of ethnically motivated violence in Kosovo. Even if efforts are being made to protect the entire population, the international community is currently still fully occupied with solving the main problem of an orderly coexistence between Serbs and Albanians in Kosovo. That further, numerically weaker minorities cannot be adequately protected, is understandable in view of the insufficient number of personnel in the protection units on the one hand and the high propensity for violence in the affected region on the other.Even if improvements in the granting of protection can occur in the medium term due to an increase in the workforce, at least at the time of the decision this is not sufficiently guaranteed.
In the judiciary, it must be concluded from the findings made that the majority of Albanian judges are unwilling to prosecute and punish attacks against gorans accordingly. As long as there is no functioning judiciary that is actually independent of ethnic and political influences, it cannot be assumed that attacks by private individuals against Muslim Slavs will be punished. However, this also means that there is no state will to protect this minority.
3.3.3. A domestic escape alternative is not open to the appellant for the following reasons: According to the judicature of the Administrative Court, the term "domestic escape alternative" takes into account the fact that the well-founded fear of persecution within the meaning of Art. 1 Section AZ 2 GFK, if they are refugees should justify, must refer to the entire national territory of the home country of the asylum seeker. If the asylum seeker is able to safely enter parts of his home country where he can live free from fear, and if this is reasonable for him, he does not need protection under asylum law (VwGH 09/08/1999, 98/01/0503; 11/25/1999, 98/20/0523). The reasonableness of a domestic flight alternative implies that the asylum seeker does not end up in a hopeless situation in the area in question (VwGH 09/08/1999, 98/01/0614).
Although the findings on other areas of Yugoslavia show that Slav Muslims are not specifically exposed to persecution on the basis of their religion or ethnicity, so that Serbia and Montenegro are basically non-persecution areas, the assumption of a domestic flight alternative is rejected because it is not reasonable to use them Alternative. For the entire area, the economic situation is overwhelming, and minorities are particularly hard hit. Not even in the Sanjak, where Muslim Slavs live in concentrated form, can, under the given circumstances, be assumed that the livelihoods of members of this minority who are last resident in Kosovo are secure. In the course of the proceedings there were also no indications of relatives or acquaintances in other regions of Yugoslavia that could accept the applicant. On the basis of the living conditions described in the findings, it cannot be assumed that the applicant will find access to the labor market and suitable accommodation, nor is livelihood secured by state benefits or donations from aid organizations. In addition, it can be seen from the findings (1.2., 1. Para.) That the previously given willingness to accept host families has continued to decline, which can apparently be explained by the economic burden associated with the reception of refugees. From all of this it follows that the applicant would be confronted with a hopeless situation in the event of his return to the Federal Republic of Yugoslavia, which makes the use of an alternative to fleeing to an area free of persecution within the meaning of the GFK unreasonable.
3.4. In summary, it is stated that it is credible that the applicant in the Federal Republic of Yugoslavia is threatened with persecution on the grounds of his nationality and that none of the reasons for termination or exclusion mentioned in Article 1 Section C or F of the GRC exist.
According to § 12 AsylG, the decision on granting asylum had to be combined with the determination that the alien thus became a refugee by law.
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