Case summaries

Chechens, who do not have particular characteristics putting them at risk, are not at risk of persecution in the Russian Federation due to their membership of their ethnic group. Therefore it can basically be assumed that other parts of the Russian Federation provide an internal protection alternative.

Trafficking in human beings falls under the prohibition of Art. 4 of the Convention.  Consequently, state parties have the positive obligation:

1. to adopt an adequate and comprehensive legal framework to combat this criminal offence;  
2. to undertake protective measures whenever the authorities are aware or ought to have been aware of a serious risk of a person being subject to trafficking;
3. and to appropriately  investigate situations of potential trafficking. 

The Applicant submitted applications for the assignment of a legal adviser and legal aid at the same time as his appeal. The Asylum Court rejected the appeal and the applications for the assignment of a legal adviser and legal aid as inadmissible. The Constitutional Court of Austria revoked this finding with reference to Art 15 Procedures Directive: the Asylum Court should not have been permitted to reject the applications for the assignment of a legal adviser and legal aid, but should have pronounced a judgment on the merits by means of a separate decision that could be challenged with a legal remedy.

The court confirmed in this case that the assessment framework of Art 4:6 of the General Administrative Law Act, in relation to subsequent asylum applications, is in conformity with the Asylum Procedures Directive.

The decision of the Administrative Court to refuse the applicant an oral hearing was overturned. The SAC held the Administrative Court did not show the Qualification Directive (which was implemented during the proceedings) had been applied and that the Administrative Court failed to take into consideration that as an asylum seeker the applicant had limited possibilities of supporting his claim by submitting written evidence only.

The Court considered whether an application for international protection by an applicant of Russian nationality based on experiences of persecution in Lithuania (country of asylum) could be dismissed based on the reasoning that Lithuania is deemed to be a safe country of asylum. The Administrative Court held that the question of whether the applicants are in need of international protection based on the treatment they have received in their country of asylum, Lithuania, could not be examined in an asylum procedure in Lithuania.

This case concerns exclusion from refugee status due to the alleged participation of a civilian in war crimes. It was found that an act committed by a civilian can be a war crime if this act is connected to an armed conflict. In the course of an internal armed conflict, war crimes can be directed not only against the civilian population but also against combatants of the opposing party.

The basis for  a person’s detention under  5(1)(f) of the Convention  is legally untenable when there is a lack  of  a  realistic  prospect  of  the applicant’s expulsion  and  the domestic authorities fail to conduct the expulsion proceedings with due diligence.

When determining whether the maximum period for detention pending removal under the Returns Directive is exceeded, the following periods must be included: (1) periods of detention prior to the application of the Directive by the Member State; (2) periods of detention pending an asylum claim where no decision is made to transfer the individual from ‘detention pending removal’ to ‘detention pending asylum claim’; (3) periods of detention pending judicial review of the deportation. In addition, the ‘reasonableness’ of the prospects of removal must take account of whether removal can take place within the maximum period of detention time, and once the maximum period is exceeded, the individual can no longer be detained for the purpose of removal.

“Good reasons,” as defined in Art 4.4 of the Qualification Directive exist if a recurrence of past persecution is not expected and there is no enhanced risk of first-time persecution of a similar kind. At present, there are “good reasons” to consider persecution of Chechens who return to Chechnya, unless they belong to a particular risk group, will not be repeated.