COMMON ANALYSIS
Last update: December 2020
The commission of serious (non-political) crimes is a ground that could apply to applicants from all countries of origin, regardless of the general situation.
In order to determine whether the crime qualifies as serious, the following factors may be taken into account: the nature of the act, the actual harm inflicted, the form of procedure used to prosecute such a crime, the nature of the envisaged penalty, and whether most jurisdictions would consider it serious.[35]
There is no requirement that the offence constitutes a crime (or a serious crime) in both the country of origin and the country of application. Therefore, certain acts could be criminalised in Afghanistan, but not be considered serious crimes according to international standards and would therefore fall outside the scope of this provision (e.g. same sex relations). At the same time, acts that may not be considered serious crimes in Afghanistan could be relevant exclusion grounds (e.g. marital rape, sexual relations with a minor in the context of child marriage).
In order for an act to qualify as a non-political crime, it should be considered to have a predominantly non-political motivation or be disproportionate to a claimed political objective. Particularly cruel actions may be considered serious non-political crimes, due to being disproportionate to an alleged political objective. Terrorist acts, which are characterised by their violence towards civilian populations even if committed with a purportedly political objective, fall to be regarded as serious non-political crimes within the meaning of point (b).[36]
It should also be noted that State agents could be responsible for serious (non-political) crimes (e.g. in relation to death penalty and executions, and torture).
The exclusion ground for refugee status further stipulates that the act must have been committed outside the country of refuge prior to the person’s admission as a refugee. This requirement does not apply to exclusion from subsidiary protection.
For more general guidance on the application of this exclusion ground, see the EUAA Practical guidance on Exclusion for Serious (Non-Political) Crimes.
[35] See CJEU, Shajin Ahmed v Bevándorlási és Menekültügyi Hivatal, judgment of 13 September 2018, C-369/17, para. 58.
[36] See, for example, CJEU, Bundesrepublik Deutschland v B and D, C-57/09 and C-101/09, judgment of 9 November 2010 (B and D), para. 81.