Case summaries

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.

An expulsion order in relation to an elderly woman with a deteriorating medical condition gave rise to a real risk of a violation of Art 3 and Art 8 ECHR. In light of this risk, the Asylum Court held that the sovereignty clause in the Dublin Regulation should be applied in combination with Article 15 of the same Regulation, even though the latter was not directly applicable in this case.

Detaining children in a closed centre designed for adults is unlawful and ill-suited to their extreme vulnerability, even though they were accompanied by their mother.

Art 3 and Art 15 Dublin Regulation are only applicable if there exist compelling reasons to believe the receiving country is incapable of welcoming asylum applicants in appropriate conditions or if the applicants can prove that they personally risk being subjected to ill treatment or not benefitting fully from an effective right to asylum. In this case, the applicants had not demonstrated they were personally victims of ill treatment in Poland. Poland was considered to offer sufficient guarantees against deportation and for an effective and impartial asylum procedure.

“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.

In an internal armed conflict, war crimes may be committed not only against the civilian population, but also against combatants.

1. At present, a definition of what constitutes war crimes or crimes against humanity has to be primarily based on the elements of these crimes as determined in the International Criminal Court (ICC) Statute.
2. In an internal armed conflict, war crimes may be committed not only against the civilian population, but also against combatants.
3. As a rule, acts by combatants which form part of combat operations in an internal armed conflict, and which do not constitute crimes against peace, war crimes or crimes against humanity (under Section 3 II (1) (1) of the German Asylum Procedure Act), will also not constitute the exclusion ground of a serious non-political crime.

This was an appeal against the decision by the Federal Asylum Office to transfer the first applicant to Poland and the second applicant, including their two children, to the Czech Republic. The Asylum Court allowed the appeal and found the consultations with other Member States and the decisions of the Federal Asylum Office to be arbitrary, ignoring national legislation requiring one procedure for the whole family and violating the Dublin II Regulation’s emphasis on the necessity of maintaining family unity as well as Article 8 of the ECHR.

A decision to expel a child with a serious medical condition that may lead to death without treatment, to Poland, when that child has previously been refused medical treatment in Poland, gave rise to a real risk of a violation of Art 3 ECHR. The decision had been taken arbitrarily because the necessary investigations in relation to the child’s medical condition had not been made.

It is lawful to refer an ethnic Armenian applicant from Chechnya to internal protection in other regions of the Russian Federation. 

Asylum applicants who have already been subject to persecution also benefit from the facilitated standard of proof of Art 4.4 of the Qualification Directive in the course of the examination of whether an internal protection alternative is available to them.