Do Orthodox priests make confessions
1. The applicant, a national of Georgia belonging to the Georgian ethnic group, entered Austria on February 18, 2002, bypassing the border control, and applied for asylum under the name of K. K. on February 19, 2002.
On February 19, 2002, in a written questioning before an organ of the public security service of the Federal Gendarmerie, border surveillance post in Gmünd, the appellant submitted to his reasons for fleeing that he had left Georgia because of religious problems.
2. In the written interrogations on March 8, 2002 and on April 2, 2002 at the Federal Asylum Office, Linz branch, when asked about his reasons for fleeing, the applicant essentially stated the following: He was a Protestant. The vast majority of the Georgian population is Orthodox and has a negative attitude towards Protestants. For example, an Orthodox priest with his followers and other like-minded people burned Evangelical books in the village of the applicant. The applicant was also threatened several times by Orthodox at the Sunday meetings of his Protestant community. At a meeting in a private house on 00.00.2001, men from the village again came and started to beat the evangelical participants and insult them as "traitors". When the appellant's wife tried to leave the meeting with her child in her arms, she was pushed. Since she had the child in her arms, she fell on her back, injuring her head. The appellant found out that the person who knocked over his wife was working at the police station. He went to the police station and threatened to report him. The latter told him that he would destroy the applicant's faith and that he would also take violent action against his family in the event of a complaint. The applicant's wife had to go to a hospital because of her injury. Because of the danger posed by the police officer, the appellant took her to a friend of his father's, where a doctor from Tbilisi visited her twice a week. After a week, the father said that a complaint should be filed. In the meantime, the applicant had continued to practice his faith in the village of S. In the meantime, his father had turned to a police officer who had promised him help. Two to three days later on 00.00.2002, in the presence of the appellant and his wife, shots were fired at the house of friends of his father from a passing car during the night. After 20 minutes, a neighbor received a call for the applicant. When the appellant came on the phone, he heard a male voice threatening him that if they did not stop their complaint, his family and the family of his father's friend would be unsuccessful, informing him of all the appellant's steps be. The appellant went to Azerbaijan for three days to hide with an acquaintance of his father's, but the latter refused to do so out of fear for his own family members. The appellant had returned and learned from the policeman his father had turned to for help that it was better for him to leave Georgia. The appellant promised to leave Georgia with his family and not to file a complaint. The police officer reported this to the aforementioned and the latter agreed. In the event that the appellant "tells the story" to someone in Georgia, he will see no mercy for the appellant's family. The applicant left Georgia in 2002. When he left, his wife and children were still in L. All of his documents were burned in Georgia.
3. With the decision of the Federal Asylum Office of 4.6.2003, number: 02 16.870- BAL, the Federal Asylum Office rejected the asylum application of the applicant according to § 7 AsylG (ruling point I.), and at the same time declared his rejection, deportation or deportation to Georgia according to § 8 leg. cit. for admissible (point II.).
The Federal Asylum Office stated that the applicant, taking into account the current developments, according to which the Georgian state is now fundamentally intervening against attacks on non-traditional religious minorities, with the initiation of criminal proceedings "against Father B." it was pointed out that there was no immediately justified risk of persecution to fear. The appellant's allegation that he was being sought in the whole of Georgian territory on the basis of a complaint against a police officer was implausible, as this was a police officer from the local police station and as such he did not have such a radius of action to cover him all over Georgia to pursue.
4. The applicant filed an appeal in good time against all two points in this decision.
On March 4th, 2004 the Federal Asylum Office faxed copies of a 2001 to the appeal applicant from the "A." issued membership card, a Georgian driver's license -, a confirmation from Mag. D. J., pastor of the "G. I. F.", according to which a "M. K." since March 2002 on the recommendation of his evangelical congregation in Georgia had been accepted into the English-speaking evangelical community in March 2002, as well as a letter from "A." in Georgian, referring to a risk to the "M. K." in Georgia.
On May 10, 2004, the Independent Federal Asylum Senate received a document from the applicant dated April 27, 2004, referred to as "Supplementary Submissions of Appeal", in which the applicant essentially stated the following: His real name is MK and initially given a false name because he feared that his family in Georgia would have further problems from the police officer he named if he found out that the appeal applicant had applied for asylum in Austria. The religious persecution of his family has a long history. The applicant's mother is an Azerbaijani and fled to Georgia for religious reasons. The applicant himself was born in Azerbaijan and stayed in Azerbaijan until 1983. His father was deported to Siberia by the KGB around 1979/1980 because of his religious activities. He helped organize religious meetings of the evangelical community. He was imprisoned for two years and held until 1986. In R., the applicant's family had problems with a police officer who broke into their home and took books and papers with him. He also warned against holding further meetings. The named policeman comes from the same village as the mother of the applicant in Azerbaijan. In addition to the hatred of the applicant's religion, his Azerbaijani origin is also a motive for his attacks against the applicant's family, as they know his origin and he is ashamed of it. Because of these problems, his family moved to their father's village. After graduating from school in 1993, the applicant practiced his faith and preached and proselytized for the evangelical community. He made music. Religious meetings with 50 to 60 people each took place in his apartment. The opponents of his belief, including a policeman named K., had broken into the applicant's house and his family and burned writings and books. On 00.00.2001 they were also beaten by them. The appellant has since learned that his father had taken part in an evangelization campaign in R. last year and was recognized by the police and taken to the police station, where he was threatened and mistreated; after that he had to be treated in the hospital for 2 weeks. The appellant's father was also forced by the last-named police officer to disclose the appellant's whereabouts. The police officer was acquainted with that P. and told him that the applicant had applied for asylum in Austria. Therefore, the applicant has now also announced his true identity. P. also wanted to extort USD 5,000 from his father and had also broken into the house of the applicant's family. The appellant's family members are currently in R. and would not practice their beliefs in public for fear of repression. With the supporters of "XY" I mean a radical orthodox organization that persecutes people of different faiths. They would be defended by parliamentarians like Guram Sharadze and also supported by high dignitaries of the Orthodox Church. Among other things, the appellant attached copies of the aforementioned letter from "A.", a photograph of a religious celebration in Georgia at which the appellant was to be seen, a confirmation of his father's stay in prison, a copy of his father's passport The ticket, which his father used on his return from Siberia, and two video cassettes, on which a meeting of the evangelical denomination in Austria or such an event in his father's house in Georgia can be seen.
On November 22, 2006, the Federal Asylum Office submitted copies of other documents submitted by the applicant, including his Georgian identity card, his marriage certificate, a certificate issued by a university in Tbilisi in 1992, his son's birth certificate and 3 photos.
Simultaneously with the summons to the oral hearing on August 17, 2007, the appellant was sent the report of the German Foreign Office of April 24, 2006 on the asylum and deportation-relevant situation in Georgia as well as the International Religious Freedom Report 2006 of the US Department of State for comment.
On July 30, 2007, a statement was received from the appellant who referred to the enclosed annual reports from Amnesty International from 2005 and 2006, according to which hundreds of assaults were mentioned each year, which had only been prosecuted in a very few cases, and also pointed out that both the report by the German Foreign Office and the State Department contained evidence of attacks against members of non-Orthodox religious communities. The appellant also stated that after leaving Georgia there had been further attacks against his father and his family. For example, his father was arrested in R. by policeman P., who worked in the Ministry of the Interior, while distributing Christian literature and mistreated for three days. After this incident, he was bedridden for a long time and has not yet left the house. The applicant's son was refused to attend kindergarten in 2003 because he did not belong to the Orthodox religion. Subsequently, the police had come to the appellant's house with dogs, which is why his son was now suffering from a dog phobia. In 2004, the appellant's wife was insulted in a bus and two men forced her to get out. In 2006, on an Orthodox holiday, the appellant's wife was threatened by Orthodox neighbors, and she lost consciousness for a short time. After this event, his wife and son also left the country and came to Austria. The pleading was accompanied by a statement by the applicant's wife in her own asylum procedure and the reports of the World Press Freedom Review from 2005 and 2006 on Georgia.
The wife of the applicant ME had submitted an application for international protection on November 10, 2006 and was questioned at the Federal Asylum Office on November 21, 2006 and April 24, 2007, including a medical confirmation from 2002 regarding a head / skull trauma in which she was held was that she was injured and physically affected by unknown people at a meeting place.
6. In the public oral appeal hearing on August 17, 2007, to which a representative of the first authority apologized, did not appear, evidence was taken by questioning the appeal applicant, his wife and Mag the act of the Independent Federal Asylum Senate, whereby the first authority only applied in writing to reject the appeal.
In the presence of an interpreter of the Georgian language and a designated representative of the appellant, the applicant essentially presented the following on his reasons for fleeing:
He already belonged to an evangelical congregation in Georgia. After meetings, he regularly prayed with a group of 20 people in R. There were 50 official members in his community. 50 to 100 people came to the meetings. He lived from various activities in Georgia. His wife also worked. The meetings took place in his house or in an apartment in R. On the video cassette he presented, one could see how he was making music at a meeting, the same applies to the photo he presented. The presented ID of the "A." would only get important members. As a religious minority in Georgia, they were not officially allowed to found their own association, which is why it was founded by American missionaries. The applicant had been invited to Tbilisi very often and was therefore given the ID mentioned above. He has accompanied a choir at meetings in Tbilisi. He also always took part in major evangelistic campaigns in the districts of Tbilisi. The applicant's family had problems with the police in 1992 and 2003. From 1997 to 2001 the meetings took place in the house of the appellant. During this time, the residents of the village and the Orthodox pastor came twice or more a week and wanted to ban the meetings. Very often they would have pelted the house with stones. There were also two attacks where literature was taken away. That was 1997 or 1999 and 2001. There was a very big attack in 2001 in which his wife was also injured. After the applicant's departure, his family moved from the house of his father's friend in L. to the apartment in R. The house in L. 2002 was previously shot at from a car. There were many problems in R. The neighbors put great pressure on the family and turned to the local police officers. They threatened a trial and eviction of the family if they continued to hold meetings in the apartment. In 2003, the applicant's wife had problems with the kindergarten management regarding her son's creed. In 2003 the father of the applicant was arrested and mistreated by the policeman P. during an evangelism in R. At the same time, the police in R. came to the appellant's apartment with dogs. In the summer of 2004, the applicant's wife, who wanted to start therapy because of her head injury in the course of the 2001 incidents in Tbilisi, was threatened with knives in a bus because of her religious affiliation and forced to get out. On 00.00.2006 the appellant's wife was threatened and pushed by neighbors and participants in an Orthodox procession while visiting her mother's house, and she passed out. She was treated by a private doctor who took her to a hospital. The applicant also submitted a chronological sequence of the contents of another video tape he had submitted, which was given to the interpreter for translation and for comparison with the contents of the tape, as well as a folder for an evangelical religious event in Tbilisi.
When asked as a witness, Pastor Mag. D. J. essentially stated that the applicant had looked around for Christian congregations immediately after his arrival in Austria and regularly attended church services. He also takes part in public appearances in the community. It is under discussion that the applicant will join the leadership team of the community next year. Regarding the situation in Georgia, the witness stated that it was true that efforts were being made to improve the situation of evangelicals in Georgia, but it was questionable whether these changes would penetrate to the grassroots. From the reports he has read, it is clear that a great many legal proceedings in this regard have simply come to nothing. It is also the case that large religious communities such as the Catholic Church in Georgia are better accepted than Protestant churches, whereby the Evangelical Lutheran Church is not treated better than Evangelical churches.
The appellant's wife reported the events already brought forward by her spouse without significant discrepancies.
On September 10, 2007, the Federal Asylum Office received the translation of the list of the contents of the above-mentioned video cassette submitted by the appellant - all of them concern reports on Georgian television channels on abuses at Georgian security authorities or courts - whereby the interpreter stated that this table of contents correctly reproduced the contents of the video tape.
II. The Independent Federal Asylum Senate considered the appeal as follows:
1. It is determined:
1.1. To person:
The applicant is a Georgian citizen and belongs to the Georgian ethnic group. He belonged to an active free-church evangelical congregation in Georgia, for which he was actively involved and also held meetings in his home. Before he left Georgia in 2002, the appellant was threatened by both neighbors and police officers because of his religious affiliation.
1.2. To the country of origin:
The decision is based on the following findings:
1.2.1. On the situation in Georgia
220.127.116.11. General situation
Georgia is a state whose political and legal orientation follows European values. Internal conflicts, external influence, corruption and a generally difficult economic situation - despite the "Rose Revolution" in autumn 2003 - have prevented the country from being able to fully develop its actual potential in terms of democratization since its independence.
The first measures of the new government are still more in the fiscal and regulatory spheres than in the societal and social environment. The creation of a 'strong state' in contrast to the general political stagnation of recent years roughly reflects the philosophy of the current government. This also seems to be the orientation of the sometimes drastic reform of the judiciary, which is not free of accusations, the courts of which are being redesigned and whose experienced judges are largely being replaced by younger lawyers. The unchanged necessary improvements in the enforcement and protection of human rights did not take place in 2005 either. Rather, as in 2004, the government's approach to the often selective arrest of suspect criminals, mistreatment in custody, and the rampant application for and imposition of pre-trial detention is to be judged as a worsening of the situation. Furthermore, there is no legal basis for the registration and work of non-Orthodox religious communities. The massive attacks by Orthodox zealots that could still be observed in 2003 did not take place in 2004, and only very sporadically in 2005. Individual statements by the Georgian Orthodox Patriarchate on the work of non-Orthodox communities gave cause for concern.
(Report on the situation in Georgia relevant to asylum and deportation by the German Foreign Office of April 24, 2006, p. 4)
Overall, respect for and protection of human rights in Georgia improved continuously between 1995 and 1997, starting from a low level. In contrast, in the years that followed, little progress has been made towards overcoming the remaining human rights deficits. After the Rose Revolution, the office of ombudsman remained vacant for about eight months. In the summer of 2004, Sosar Subari, who was close to the president, was appointed the new ombudsman. He initially concentrated on creating new, also regional structures for his office and appeared only rarely in 2004. Beginning in 2005, however, Subari appeared regularly in public and also in human rights and socio-political hot spots. There are none of the pressing issues that Subari would not address clearly and objectively. Only the criticism of his representative, a kind of defense commissioner, of the conditions in some units of the armed forces ultimately cost them their office. In addition to the ombudsman, the chairwoman of the parliamentary committee for human rights Elena Tevdoradze shows a strong commitment to people in social need, to prisoners or victims of police arbitrariness. She was already in office before the Rose Revolution, which speaks for a certain independence from political currents. However, their opportunities to participate are limited (report on the situation in Georgia relevant to asylum and deportation by the German Foreign Office of April 24, 2006, pp. 5-6).
18.104.22.168. Security situation, police and justice
In the period since the "Rose Revolution", the Federal Foreign Office has not become aware of any state repression against certain groups of people because of their race, religion, nationality, membership of a certain social group or because of their political convictions. Special operations in Tbilisi as part of the fight against terrorism, however, showed problematic action against Chechen people from a human rights and rule of law perspective (report on the asylum and deportation-relevant situation in Georgia by the German Foreign Office of April 24, 2006, p. 7).
With the exception of the attacks on religious minorities, the Foreign Office has not become aware of any repression by third parties tolerated or promoted by the Georgian state since the beginning of 2004 (report on the asylum and deportation-relevant situation in Georgia by the German Foreign Office of April 24, 2006, p. 11) .
The first security reforms took place shortly after the revolution. Visible and tangible to the public, 3,000 traffic police officers who were considered corrupt were dismissed in 2004. This unit was completely dissolved and replaced by a new, more citizen-friendly and better paid "Patrol Police". In 2004 there were further spectacular arrests in front of cameras, at night and often without an arrest warrant. The Federal Foreign Office has no findings for 2005. These arrests were regularly directed against former government employees or suspected profiteers from the Shevardnadze era. Overall, investigation techniques and police work have not yet been brought up to European standards. Further reforms, especially with regard to forensic and investigative work, were not discernible in 2005 (report on the situation in Georgia relevant to asylum and deportation by the German Foreign Office of April 24, 2006, p. 7).
The Georgian Constitution prohibits the use of torture. In police custody in particular, however, there are cases of violence (beatings, kicks, electric shocks, burns, threats with firearms, extortion, forcing confessions) by police officers. Since the Saakashvili government took office, such reports by NGOs have tended to increase rather than decrease. Estimates of the number of assaults in police custody for 2004 ranged from 500 to over 1,000. The authorities (Ministry of Interior and Attorney General) say they are pursuing human rights violations of this kind. In individual cases, police officers have also been sentenced to prison terms for torture or ill-treatment. However, the number of such cases has so far not corresponded to the political and declaratory intentions of the government and certainly not to the number of suspected attacks (report on the asylum and deportation-relevant situation in Georgia by the German Foreign Office of April 24, 2006, pp. 13-14) .
Arbitrary arrests occasionally occurred in connection with police crackdown on unpleasant demonstrations until 2003, but have so far been short-lived. Inhuman or degrading punishments (beatings, beatings) are not provided for by law. A detainee can be held for a maximum of 72 hours without a court hearing. In 2004 it was noticeable that the courts largely followed requests from the public prosecutor's office to impose pre-trial detention, even if neither the seriousness of the offense nor the other legal bases required it, sometimes not even allowing it. In many cases, there were delays in the main proceedings, so that the pre-trial detention was extended once or twice, in some cases beyond the statutory upper limit of nine months. Overall, these circumstances led to a considerable increase in the number of detainees on remand to around 5,000 (report on the situation in Georgia relevant to asylum and deportation by the German Foreign Office of April 24, 2006, p. 15).
The independence of the judiciary is not guaranteed in post-revolutionary Georgia either. Rather, the reform of the courts of justice, which has been accelerated since mid-2005, and the dismissal of judges have resulted in a lack of personnel in access to justice to a limited extent. In the opinion of many observers, behind the opaque, selective and sometimes apparently unlawful dismissal of judges is the attempt to replace independent heads of the judiciary, especially in the highest instances, with young, influenceable lawyers from the revolutionary generation. The dismissal of previous judges is overshadowed by public allegations that the government is trying to overpower the judiciary. Some judges have sued against their dismissal (report on the situation in Georgia relevant to asylum and deportation by the German Foreign Office of April 24, 2006, p. 6).
22.214.171.124. Religious minorities
Furthermore, there is no legal basis for the registration and work of non-Orthodox religious communities. The massive attacks by Orthodox zealots that could still be observed in 2003 did not take place in 2004, and only very sporadically in 2005. Individual statements by the Georgian Orthodox Patriarchate on the work of non-Orthodox communities gave cause for concern (report on the asylum and deportation-relevant situation in Georgia by the German Foreign Office of April 24, 2006, p. 4).
The constitution of August 24, 1995, also in the version amended on February 6, 2004, grants freedom of religion, but on the other hand emphasizes the "special role" of the Orthodox Church. Large groups of people with different religious beliefs live in Georgia.
On October 14, 2002, the then President Shevardnadze and Patriarch Ilya II signed a concordat that establishes the status of the Georgian Orthodox Church as "a necessary foundation for the restoration of the country". Among other things, the Concordat regulates the property rights of the Georgian Orthodox Church and exempts its clergy from military service. The promised legal anchoring of the status of other religious communities has not yet materialized. (Report on the situation in Georgia relevant to asylum and deportation by the German Foreign Office of April 24, 2006, p. 9). The former ombudsman Subari came under joint criticism from the government majority and the opposition at the end of 2005 when he called for the concordat between the state and the Georgian Orthodox Church to be terminated. He wanted to draw attention to the disadvantaged status of other religious communities (report on the asylum and deportation-relevant situation in Georgia by the German Foreign Office of April 24, 2006, p. 6).
The majority of ethnic Georgians, who, according to the results of the 2002 census, make up 83.8% of the total population, belong to the Georgian Orthodox Church. The Georgian Orthodox Patriarchate is critical of Islam and very cautious about non-Orthodox Christian communities. Church services and pastoral work are not hindered as long as they take place without a large public in the context of one's own church building. The Georgian Orthodox Church thwarted an expansion of the practice of religion, especially in the Georgian provinces, by occupying buildings of other denominations that were nationalized in Soviet times and not transferring them back. The Jehovah's Witnesses are particularly affected by the lack of legal certainty to which all religious communities except the Georgian Orthodox Church are exposed, since the community was ultimately deprived of legal capacity by the Supreme Court in February 2001 (other religious communities are partially registered as charitable organizations). This causes problems, for example, when importing religious literature, with the Georgian customs authorities trying to find pragmatic solutions.
The Georgian Orthodox Church has pronounced aversions towards free-church religious communities such as Pentecostal churches, Baptists, Adventists or Jehovah's Witnesses. In several Georgian cities, to this day, you have not been able to rent halls for church services and community meetings from the responsible authorities. In the past there have been repeated attacks against members of religious minorities (destruction of religious literature, prevention of religious gatherings through blockades, threats and use of physical violence against people). The attacks were directed primarily against members of free church communities and were mostly committed by supporters of the former priest B. M., who had been excluded from the Georgian Orthodox Church, and / or the extremist orthodox group "Jvari" (cross). Cases have also emerged in which police forces prevented Jehovah's Witnesses from holding meetings or watched attacks on Jehovah's Witnesses by radical Orthodox circles. In March 2004, M. was driven out of a church in the Tbilisi suburb of Gldanin in the Tbilisi suburb of Gldanin where they had holed up and arrested. At the end of January 2005, his trial ended with a first-instance sentence of six years in prison. Reports of attacks against members of religious minorities subsided from the second half of 2003 onwards. Also in 2005 there were very few individual cases. In May 2005 a group of the Pentecostal church was attacked in an apartment in Tbilisi and individual group members were beaten. It is not known whether the police were called.
In view of the general lack of transparency and the rule of law in criminal prosecution, it cannot be ruled out that members of ethnic or religious minorities are occasionally treated worse in criminal proceedings or in prison than orthodox ethnic Georgians (report on the situation in Georgia relevant to asylum and deportation by the German Foreign Office dated April 24, 2006, pp. 9-10).
According to the "International Religious Freedom Report 2006 of the US Department of State", there is a mistrust of "non-traditional" religious communities among the citizens of Georgia. Assaults on religious minorities, be it acts of violence, insults or hindrances to the practice of one's belief, would, however, continue to decline. Although the attorney general's office is intensifying investigations into religiously motivated acts of violence, allegations further back remain unresolved. The practice of the faith of certain, especially "non-traditional" religious groups was restricted by threats and attempts at intimidation by local Orthodox priests. In some incidents during the reporting period, the local police also proved to be "slow" in preventing harassment from non-Orthodox groups such as Jehovah's Witnesses and the Pentecostal movement in particular. While the number of physical attacks on religious minorities in Georgia decreased during the year, harassment continues. Although the police would hardly encourage the harassment, in some cases there was no state protection. There had been sporadic harassment of members of non-traditional religious communities. Occasionally, local Orthodox priests and their congregation members verbally and physically threatened members of religious minorities and prevented them from setting up religious institutions or holding religious meetings. Corresponding complaints were regularly submitted to the public prosecutor and the ombudsman by those affected. The report further elaborates on this:
"Within the Prosecutor General's Office, the Human Rights Protection Unit monitors the progress of investigations and prosecution of cases involving abuses of religious freedom. During the reporting period, twenty instances of interference, threats, intimidation, or violence were investigated. In five instances, cases were awaiting trial; in eleven instances, the investigations were ongoing; and in four instances, the investigation did not find sufficient evidence to support charges. In October 2005 a case against J. Megenishvili, for interfering in the performance of a religious service, was forwarded to the Tbilisi city court for trial. In August 2005 the prosecutor general initiated an investigation related to an attack on two members of Jehovah's Witnesses, Lamara Tskhovrebadze and Guliko Palivashvili. That investigation was ongoing at the end of the reporting period. In R . on August 28, September 1, and October 18, 2005, Jehovah's Witnesses alleged that thirty persons blocked the road leading to a home used for services. At the request of the public defender, an investigation was launched. The investigation found that the congregation had not been subjected to threats or violence. (See Religious Freedom Report 2006 of the US Department of State of September 15, 2006, pp. 1, 4, 5-6).
According to Amnesty International's 2006 annual report on Georgia, there were several incidents in 2005 in which supporters of the Georgian Orthodox Church attacked and harassed members of religious minorities.In some cases, the perpetrators are said to have been incited by Georgian Orthodox priests. Several people responsible for violent attacks against religious minorities in previous years were brought to justice in 2005. Hundreds of others, however, continued to enjoy impunity. In addition, some of the convicted perpetrators were not held accountable for all of the assaults in which they were believed to have been involved.
On January 31, the district court of Vake-Saburtalo, a district of Tbilisi, sentenced the defendants Basil Mkalavishvili, Petre Ivanidze and Merab Korashinidze of "interfering with the performance of religious rites and worship", "administering beatings", "arson" and others Offenses resulting in imprisonment of six or four years and one year. Several other supporters of Basil Mkalavishvili - Avtandil Donadze, Avtandil Gabunia, Akaki Mosashvili and Mikheil Nikolozashvili - were given three-year suspended sentences. Basil Mkalavishvili. and Petre Ivanidze appealed their verdict, which was rejected by a higher court in Tbilisi in October. (Amnesty International, Annual Report on Georgia 2006, p. 2)
1.3. These findings are based on the following assessment of evidence:
1.3.1. The under point 1.1. The established facts result in particular from the credible information provided by the applicant and his spouse, which essentially do not show any serious contradictions, as well as from the documents submitted by the applicant.
His detailed information on this matter, the documents he submitted, in particular the ID of the "A.", the photographs submitted by the applicant and the video tape on which he was presented speak for the membership of an evangelical denomination in Georgia and his active involvement in it When attending a meeting of his religious community in Georgia, the folder presented and, last but not least, the relevant credible information provided by Pastor DJ in the oral appeal hearing is recognizable.
The fact that the arguments of the applicant, but also those of his wife, do not contain such serious contradictions speaks in favor of the fact that the above-mentioned multiple attacks on the applicant by members of the Georgian security forces and private persons because of his commitment to the evangelical community in Georgia, which would justify the assumption that the submission is unbelievable, and they are also essentially the same in a mutual comparison. The applicant was able to plausibly explain the use of a false name when applying for asylum (cf. negotiating note p. 13f, 16); The same applies to the fact that the threat posed by the police officer was only indicated during the appeal procedure (see negotiation document S 10). Furthermore, the relevant submissions of the appellant also turn out to be against the background of the above statements on the situation of non-Orthodox religious communities in Georgia plausible.
1.3.2. The determinations made on the applicant's country of origin are based on the state reports submitted to the Federal Asylum Office and the applicant for comment, as well as the reports submitted by the applicant. Since the reports are based on different, mutually independent sources and yet present an overall picture that is consistent in the core statements and without any significant contradictions, there is no reason to doubt the correctness of the situation portrayals. With regard to the deficiencies found in the Georgian security apparatus and judicial system, reference should also be made to the reports by Georgian television stations on the video cassette submitted by the applicant.
3. Legally it follows from this:
3.1.1. The procedure in question is in accordance with Section 75 (1) first sentence of the Asylum Act 2005, Federal Law Gazette I No. 100/2005, according to the provisions of the AsylG 1997 - here in accordance with Section 44 (1) AsylG 1997 in the version of the AsylG amendment 2003 Lead to the end. Pursuant to Section 44 (1) AsylG, procedures for deciding on asylum applications and asylum extension applications submitted by April 30, 2004 are governed by the provisions of the Asylum Act 1997, Federal Law Gazette I No. 76/1997 as amended by Federal Law Gazette I No. 126/2002 guided. According to Paragraph 3 of this provision, Sections 8, 15, 22, 23 Paragraphs 3, 5 and 6, 36, 40 and 40a in the version of Federal Law Gazette I No. 101/2003 are also applicable to procedures in accordance with Paragraph 1.
3.1.2. The asylum application to be assessed in the event of an appeal was submitted before May 1, 2004. The appeal procedure in question is therefore basically carried out in accordance with the provisions of the Asylum Act 1997 as amended in Federal Law Gazette I No. 126/2002.
3.2.1. According to § 7 AsylG, the authority has to grant asylum seekers on application if it is credible that they are threatened with persecution within the meaning of Art. 1 Section AZ 2 GFK and none of the reasons for termination or exclusion mentioned in Art. 1 Section C or F of the GFK is present.
Refugee within the meaning of Art. 1 Section AZ 2 GFK (as amended by Art. 1 Para. 2 of the Protocol on the Legal Status of Refugees, Federal Law Gazette 78/1974) is someone who “out of well-founded fear, for reasons of race, religion, nationality, affiliation” to be persecuted towards a certain social group or political opinion, is located outside his home country and is unable or unwilling to avail himself of the protection of that country with regard to this fear; or who is stateless, outside his country habitual residence and is unable or unwilling in view of this fear to return to this country. "
The central aspect of this concept of refugee in the GRC is the well-founded fear of persecution. A fear can only be well-founded if it is objectively understandable in the light of the asylum seeker's special situation and taking into account the circumstances in the persecuting state (see e.g. VwGH 22.12.1999, 99/01/0334; 21.12.2000, 2000/01 / 0131; January 25, 2001, 2001/20/0011). 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 intrusion of considerable intensity into the personal sphere of the individual that is to be protected. There is considerable intensity when the intervention is suitable to justify the unreasonableness of claiming the protection of the home country or the return to the country of the previous stay. There is a risk of persecution if there is a significant likelihood of persecution; the remote possibility of persecution is not sufficient (VwGH December 21, 2000, 2000/01/0131; January 25, 2001, 2001/20/0011). The risk of persecution - the reference point for fear of persecution - does not refer to past events (cf. VwGH 18.4.1996, 95/20/0239; cf. also VwGH 16.2.2000, 99/01/0397), but requires a prognosis. The risk of persecution must have its cause in one of the reasons mentioned in Art. 1 Section A Z 2 GFK (VwGH 9.9.1993, 93/01/0284; 15.3.2001, 99/20/0128); it must be the reason that the asylum seeker is outside his home country or the country of his previous stay. The risk of persecution must be attributable to the country of origin or the country of the last habitual residence (VwGH 16.6.1994, 94/19/0183; 18.2.1999, 98/20/0468).
If asylum seekers are safe from persecution in certain parts of the country and it is reasonable for them to take advantage of the protection of their country of origin, they do not need protection by granting asylum (see, for example, VwGH 24.3.1999, 98/01/0352 mwN ; 15.3.2001, 99/20/0036; 15.3.2001, 99/20/0134). The reasonableness calculation inherent in the concept of a "domestic flight alternative" assumes that the asylum seeker does not find himself in a hopeless situation there, especially since economic disadvantages can also be relevant to asylum if they deprive them of any livelihood (VwGH 8.9.1999, 98 / 01/0614, 29.3.2001, 2000/20/0539).
According to the constant case law of the Administrative Court (see VwGH 28.3.1995, 95/19/0041; 27.6.1995, 94/20/0836; 23.7.1999, 99/20/0208; 21.9.2000, 99/20/0373; 02/26/2002, 99/20/0509 mwN; 09/12/2002, 99/20/0505; 09/17/2003, 2001/20/0177), an act of persecution is not only attributable to the state if it is directly carried out by state organs (for reasons the GFK) has been set; On the contrary, this can also be the case if the state is unwilling or unable to prevent acts of persecution character that do not originate from state authorities, provided that these acts - if they were carried out by state organs - would be relevant to asylum.
For the question of whether there is a sufficiently functioning state authority, it depends on whether someone who is persecuted by a third party (for the reasons stated in the GFK), despite state protection, has an asylum-relevant disadvantage from this persecution with a significant disadvantage Probability (cf. VwGH March 22, 2000, 99/01/0256 following Goodwin-Gill, The Refugee in International Law2  73; further VwGH February 26, 2002, 99/20/0509). For a persecuted person it makes no difference whether he has a significant probability to expect a disadvantage due to state persecution or whether he is threatened with this disadvantage with the same probability due to persecution that originates from others and that the state does not adequately prevent can. In both cases it is not possible for him or, in view of his well-founded fear, not reasonable to avail himself of the protection of his home country (cf. VwGH 22.3.2000, 99/01/0256).
At the time of the decision, the asylum seeker is a refugee within the meaning of the GFK if he has acquired refugee status - usually upon leaving the country of origin - and no termination condition - such as that of Art. 1 Section C Z 5 GFK - has been met; because the termination facts can as a rule be interpreted as the counterpart of a corresponding element in Art. 1 Section AZ 2 GFK, but can - in addition to its omission - contain additional requirements (cf. VwGH 15.05.2003, Zl. 2001/01/0499 ).
3.2.2. The applicant succeeded in making well-founded fear of persecution within the meaning of the GFK credible: Because of the findings made, it must be assumed that, at the time of his departure from Georgia in 2002, with regard to the persecution he had made credible for religious reasons - if the threat originated from private individuals, it must be assumed that there is no effective state protection - has acquired refugee status, which he later acquired through the occurrence of a termination within the meaning of Art. 1 Section CZ 5 GFK - no other termination is possible in the case of the applicant - could have lost again; Based on the findings made on the situation of evangelical denominations, however, it cannot be assumed that the situation in question (even after the considerable political change in Georgia in 2004) has changed so fundamentally and permanently that it can be assumed that international protection would be dispensable (see UNHCR, Guidelines on International Protection:
Termination of refugee status within the meaning of Article 1 C.
(5) and (6) of the 1951 Agreement on the Legal Status of Refugees ["Elimination of the circumstances" clauses], 02/10/2003, in particular Sections 10 to 16): It is true that the above-mentioned country reports indicate that in As a result of the "Rose Revolution" in 2004, the attitude of those responsible at a higher level towards non-Orthodox religious communities has changed and progress has also been made in prosecuting religiously motivated attacks by criminal authorities, with the radical Orthodox priest M. being sentenced to six at the end of January 2005 Years imprisonment should be mentioned; however, the situation does not (yet) appear to be so consolidated, particularly with regard to the behavior of local security organs at the time of the decision, that it could be assumed that the requirements of Art.
With regard to a possible domestic flight alternative, it should be noted that the applicant's submissions show that he has already moved to Georgia without escaping the religiously motivated attacks. Also from the reports consulted, a local limitation of the endangerment of evangelical religious minorities in Georgia cannot be recognized.
As no grounds for exclusion from asylum were found in the proceedings, the decision had to be made in accordance with the ruling. According to § 12 AsylG, the decision on the granting of asylum was to be combined with the determination that the alien thus became a refugee by law.
3.2.5. It was therefore to be decided according to the ruling.
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