Opinion of the Advocate General — ECLI:EU:C:2010:302
Date: 2010-06-01
Language of the case: German
Subject matter: Asylum policy;Area of freedom, security and justice
Procedure: Reference for a preliminary ruling
Origin: Germany

summary approval by the Executive Committee, which supplement the Handbook by elaborating on individual issues. Legal writers have not failed to point out (26) that this plethora of documents, which in some cases contradict each other and which are supplemented by the positions adopted on various bases by the UNHCR (such as the opinion appended to B’s written observations), does not make it easy to develop uniform practice in the interpretation and application of the Convention by the Contracting States. In my analysis, I shall, however, endeavour to take account of the guidance that emerges from the various sources mentioned above. (b) Nature of the law on refugees 44. Although traditionally regarded as an autonomous system of law, the law on refugees is closely linked to international humanitarian law and international law on human rights, with the result that the progress achieved by the international community in those areas is reflected in the content and range of international protection for refugees, so that the two systems are closely interrelated. (27) The fundamentally humanitarian nature of the law on refugees and the fact that it is so closely tied in with the development of human rights must accordingly provide the backdrop whenever the instruments for securing that protection are being interpreted and applied. Moreover, the Court recently took that approach when, in paragraph 45 of its judgment in Aydin Salahadin Abdulla and Others, (28) it held that Directive 2004/83 must be interpreted in a manner consistent with the fundamental rights and principles recognised, in particular, by the Charter [of Fundamental Rights of the European Union]. 45. It should be pointed out in that connection that the right to seek asylum from persecution is recognised as a fundamental right within the European Union and is listed as a fundamental freedom under that Charter. (c) The nature and purpose of the grounds for excluding refugee status 46. The grounds for exclusion deprive individuals whose need for international protection has been established (29) of the guarantees laid down in the 1951 Geneva Convention and Directive 2004/83, and, in that sense, constitute exceptions to or limitations upon the application of a provision of humanitarian law. Given the potential consequences of applying those grounds, a particularly cautious approach must be taken. (30) The UNHCR has consistently reaffirmed the need to construe the grounds for exclusion laid down in the 1951 Geneva Convention narrowly, even in the context of combating terrorism.(31) 47. As regards the aims underlying the grounds for exclusion, even the travaux préparatoires for the 1951 Geneva Convention refer to two separate objectives: (i) to deny refugee status to persons whose conduct has rendered them ‘undeserving’ of the international protection accorded by the Convention and (ii) to prevent such individuals from being able to escape justice by invoking the law on refugees. In that sense, the grounds for exclusion are intended to safeguard the integrity and credibility of the system established under the Convention, and they must therefore be applied ‘scrupulously’. (32) 2. The first question 48. By its first question, the Bundesverwaltungsgericht asks, in essence, whether the involvement, established by the relevant judgments on the substance, of B and D with organisations on the list set out in the Annex to Council Common Position 2001/931, as updated, which use terrorist methods, even if only to a degree, constitutes a serious non-political crime or an act contrary to the purposes and principles of the United Nations within the meaning of Article 12(2)(b) and (c) of Directive 2004/83. 49. The answer to this question requires above all a definition of the terms ‘serious non‑political crime’ and ‘act contrary to the purposes and principles of the United Nations’, as used in Directive 2004/83. It will then be necessary to determine the parameters within which those terms can be applied to the activities of an organisation on the list of entities covered by the EU legislation on combating terrorism. Lastly, it will be necessary to determine whether – and, if so, in what circumstances – involvement with an organisation of that nature entails a ‘serious non-political crime’ and/or an ‘act contrary to the purposes and principles of the United Nations’. (a) The term ‘serious non-political crime’, as used in Article 12(2)(b) of Directive 2004/83 50. For a particular form of conduct to fall within the category contemplated in Article 12(2)(b) of Directive 2004/83, it must, first and foremost, be categorised as a ‘crime’. The fact that the connotations of that term may vary with the legal system serving as the point of reference is one of the factors which make it difficult to define, whether in the context of the 1951 Geneva Convention or in the context of Directive 2004/83. For the purposes of this analysis, it is sufficient to point out in that regard that, given the origin of the provision at issue – which reproduces word for word the provision made under Article 1F(b) of the Convention – and the aim of Directive 2004/83, as described above, the categorisation of certain conduct as a crime principally requires the application of international standards, even though criteria applied within the legal system under which the application for asylum has come under consideration may also be relevant, as may principles common to the legislation of the Member States or flowing from EU law. 51. It emerges from the travaux préparatoires for the Convention and from a systematic interpretation of Article 1F(b) (33) – as well as, more generally, from the nature and purpose of that provision – that, for the application of that clause to be triggered, the crime in question must be very serious. That interpretation is borne out by the interpretative approach taken by the various UNHCR bodies and by the way in which that provision is consistently implemented by the contracting States; (34) it is also endorsed by legal writers. (35) 52. Specifically, the assessment of the seriousness of the crime must be undertaken on a case-by-case basis, in the light of all the mitigating or aggravating circumstances, as well as any other relevant circumstances, whether subjective (36) or objective, (37) prior or subsequent to the offence, (38) entailing the adoption of international rather than local standards. Inevitably, that assessment leaves a broad measure of discretion to the authorities responsible for making it. 53. In its Guidelines of 4 September 2003 (‘the 2003 Guidelines’), (39) the UNHCR sets out an illustrative list of the factors to be taken into consideration: the nature of the act; the actual consequences of that act; the form of procedure used to prosecute the crime; the nature of the penalty; and whether the act constitutes a serious crime in a considerable number of jurisdictions. (40) In particular, the severity of the penalty laid down or actually imposed in the State in which the request for recognition of refugee status is being considered is significant, (41) even if not decisive in itself, as it may vary from one legal system to another. Crimes against the life, physical integrity or freedom of the person are generally regarded as serious crimes. (42) 54. The fact that the crime must be ‘non-political’ is to prevent refugee status being invoked in order to escape prosecution or the enforcement of a penalty in the State of origin, the intention being to distinguish between ‘fugitives from justice’ (43) and persons who, for political reasons – often directly linked to the fear of persecution – have committed acts which are significant in terms of the criminal law. In that sense, there is a relationship between that condition and extradition, even though the fact that a crime is regarded as non-political in an extradition treaty, albeit significant, is not of itself conclusive for the purposes of the assessment to be made on the basis of Article 1F(b) of the 1951 Geneva Convention, (44) and, in consequence, ought not to be conclusive in terms of Directive 2004/83 either. 55. In assessing whether or not a crime is political, the UNHCR recommends, first and foremost, the application of a ‘predominance’ test, according to which a crime in relation to which non-political motives (such as personal reasons or gain) predominate must be regarded as non-political. Factors such as the nature of the act, (45) the context in which it is carried out, (46) the methods used, (47) the reasons for committing it (48) and the proportionality of the crime to the purported objectives are important for assessing whether a crime is political in nature. (49) 56. In particular, if there is no clear or direct link between the crime and its purported political objective, or if the act in question is disproportionate to that objective, it will be regarded as predominantly non-political. (50) The Community legislature took a similar approach when, in reproducing the text of Article 1F(b) of the 1951 Geneva Convention in Article 12(2)(b) of Directive 2004/83, it specified – summarising the UNHCR’s interpretative guidelines – that ‘particularly cruel actions, even if committed with an allegedly political objective, may be classified as serious non-political crimes’. The term ‘particularly cruel actions’ should be applied, not only to the crimes subject to prosecution under the international instruments for the protection of human rights and humanitarian law, but also to crimes which involve the use of abnormal and indiscriminate violence (such as the use of explosive devices), especially when directed at civilian targets. 57. Such an assessment is undeniably complex and sensitive, both from an ethical perspective – since it implies the idea that, within certain limits, the use of violence can be legitimate – and a political perspective, even more so than from a legal point of view. It will be difficult to keep the assessment distinct from a value judgment concerning the motives for the act, a judgment which, truth to tell, will enter into consideration as a weighting factor in the appraisal of the various circumstances of the case. (51) This inevitably results in a certain measure of discretion for the authorities responsible for assessing the application for recognition of refugee status. Furthermore, it is quite possible that, in the specific case, the assessment may take account of the interests of the State in which the application is filed: its economic, political or military interests, for example. (b) The term ‘acts contrary to the purposes and principles of the United Nations’ 58. The term ‘acts contrary to the purposes and principles of the United Nations’, which appears in Article 1(F)(c) of the 1951 Geneva Convention and Article 12(2)(c) of Directive 2004/83, is vague and makes it difficult to define either the kind of act which may fall into that category or the persons who may commit such acts. Unlike Article 1F(c) of the Convention, Article 12(2)(c) of the directive specifies that the purposes and principles of the United Nations are ‘as set out in the Preamble and Articles 1 and 2 of the Charter of the United Nations’. 59. The general terms employed in the UN Charter, as well as the lack of any consolidated practice for applying it on the part of the States, have suggested a restrictive interpretation of Article 1F(c), which is borne out, moreover, by the travaux préparatoires for the Convention, which reveal that that provision was intended to ‘cover mainly violations of human rights which, although falling short of crimes against humanity, were nevertheless of an exceptional nature’. The various documents drawn up by the UNHCR stress the exceptional nature of the provision and warn against the danger of making abusive use of it. (52) For example, in the 2003 Guidelines, the UNHCR states that Article 1F(c) is triggered only in ‘extreme circumstances by activity which attacks the very basis of the international community’s coexistence’. According to the UNHCR, such an activity must nevertheless have an international dimension, as in the case of ‘crimes capable of affecting international peace, security and peaceful relations between States’, and ‘serious and sustained violations of human rights’. In the Background Note on the Application of the Exclusion Clauses of 4 September 2003 (‘the Background Note’), (53) the UNHCR points out that the principles and purposes of the United Nations are reflected in myriad ways, for example by multilateral conventions adopted under the aegis of the UN General Assembly or by Security Council resolutions: however, equating any action contrary to such instruments as falling within the scope of Article 1F(c) would be inconsistent with the object and purpose of that provision. (54) Article 12(2)(c) must, in my view, be construed in the same way. 60. The question of the persons who may be guilty of such actions has also been raised. Given that the UN Charter applies exclusively to States, the view was initially taken that only individuals ‘at the head of a State hierarchy or parastatal entity’ were in a position to commit actions capable of being caught by the definition under Article 1F(c) of the Convention.(55) That interpretation, which is supported both by the travaux préparatoires for the Convention (56) and by the Handbook, (57) seems, however, to have been overtaken in practice, and, in specific cases, Article 1F(c) has been applied also to persons who are not engaged in activities involving the exercise of public authority. (58) (c) The application of Article 12(2)(b) to ‘acts of terrorism’ 61. One of the most complex and debated issues concerning the application of the grounds for exclusion laid down in Article 1F(b) and (c) of the 1951 Geneva Convention concerns acts of terrorism. The problem partly arises because there is currently no internationally recognised definition of terrorism. In recent times, the attempt has been made in some resolutions of the UN General Assembly (59) and of the Security Council, (60) as well as in the International Convention for the Suppression of the Financing of Terrorism, (61) to define the terrorist character of an act by reference to its nature (acts directed against civilians with the intention of causing death or serious injury) and purpose (to provoke a state of terror or to intimidate a population, a group of persons or particular persons, or to compel a government or international organisation to perform or to refrain from performing an act). The same approach is taken in Framework Decision 2002/475/JHA, Article 1 of which provides a particularly well-constructed definition of ‘terrorist offences’. 62. The large number of international instruments governing individual aspects of terrorism (such as its financing) or specific forms of conduct which are generally regarded as falling within the category of terrorist acts (such as hijacking, hostage‑taking, bombings, crimes against diplomats and ‘nuclear terrorism’), together with the Security Council’s many resolutions on the subject, have inevitably had an impact on the law on refugees and, in particular, on issues relating to the determination of refugee status. In that connection, I have already mentioned Security Council Resolutions 1373 and 1269, in which States are urged to ensure that asylum-seekers have not planned, participated in or facilitated the committing of terrorist acts, and to refuse to accord refugee status to anyone responsible for such acts. The Security Council also categorises acts, methods and practices of terrorism as contrary to the purposes and principles of the United Nations, and calls for them to be depoliticised, for the purposes both of recognising refugee status and of extradition. The Community legislature itself refers to this in the preamble to Directive 2004/83 where, in recital 22, it specifies that acts contrary to the purposes and principles of the United Nations are ‘embodied in the United Nations resolutions relating to measures combating terrorism, which declare that “acts, methods and practices of terrorism are contrary to the purposes and principles of the United Nations” and that “knowingly financing, planning and inciting terrorist acts are also contrary to the purposes and principles of the United Nations”’. 63. In considering these positions, however, it must be pointed out, on the one hand, that the Security Council resolutions are not always binding in their entirety and that the Security Council itself is, in any event, required to act in conformity with the UN Charter and its principles and purposes, one of the consequences being that its opportunities to interfere with the international obligations assumed by States are limited. (62) On the other hand, the point must be made that both the General Assembly and the Security Council itself have consistently called upon the States to comply with the international instruments for the protection of human rights, including the 1951 Geneva Convention and the principle of non-refoulement, in the context of combating terrorism. 64. However, as legal writers are not slow to point out, the law on refugees is based on the system set up under the 1951 Geneva Convention, within the framework of which specific international standards were drawn up, including in relation to the determination of refugee status and the grounds on which recognition of that status may be refused. (63) And it is, above all, that system, the coherence and organic nature of which must, as far as possible, be secured and maintained, which must provide the frame of reference for assessing whether a specific criminal act is relevant for the purposes of applying the grounds for exclusion laid down in Article 1F(b) and (c) of the Convention, irrespective of whether that act can be assigned to a category of offences defined on the basis of common features. 65. By the same token, it is the rules of that system which must provide the primary point of reference for interpreting Directive 2004/83, even when it is a case of applying concepts which are autonomously defined in legislative acts of the European Union adopted in sectors other than the law on refugees. 66. It is necessary, therefore, to treat with extreme caution the Commission’s argument that, in order to assess whether membership of a terrorist organisation constitutes a ‘serious non-political crime’ for the purposes of Article 12(2)(b), it is necessary to refer to the provisions of Framework Decision 2002/475/JHA. The reason is that that decision was adopted as part of the fight against terrorism, a context with different requirements from the – essentially humanitarian – requirements that inform the international protection of refugees. Although dictated by the desire to encourage the development of uniform criteria at EU level for the application of the 1951 Geneva Convention, the Commission’s argument fails to acknowledge that, on the basis of Directive 2004/83 itself, the approximation of the laws and practices of the Member States in this area must proceed in compliance with the Convention, account being taken of the international nature of its provisions. 67. That said, I pointed out above that one of the special features of the system under the Convention is the casuistic approach taken in applying the grounds for exclusion laid down in Article 1F(b) and (c), an approach that does not as such lend itself to the use of generalisations and categorisations. On the other hand, in the United Nations context also, attention has certainly been drawn to the risks of the indiscriminate use of the term ‘terrorism’. (64) 68. On the basis of the foregoing, I therefore consider – along the lines suggested by the UNHCR in the document drawn up for the purposes of this case – that, going beyond the definitions, it is necessary to take account of the intrinsic nature and gravity of the act itself. 69. The interpretation recommended by the UNHCR and generally accepted both in legal literature and in practice, is to consider the criminal acts which are generally described as terrorist acts as being disproportionate to the purported political objectives, (65) in so far as they involve the use of indiscriminate violence and are directed at civilians or persons unconnected with the objectives pursued. Subject to an assessment of all the relevant circumstances of the individual case, such acts are likely to be categorised as non-political crimes. 70. Similarly, the approach that has more recently developed within the various UNHCR bodies seems to be to consider such acts, given their nature, the methods used and their seriousness, as contrary to the purposes and principles of the United Nations within the meaning of Article 1F(c) of the Convention. As we have seen, however, the 2003 Guidelines and the Background Note suggest that it is nevertheless necessary to verify whether they have an international dimension, especially in terms of their seriousness and their impact and implications for international peace and security. (66) Within those limits, it therefore seems permissible to make a distinction between international terrorism and domestic terrorism. Here again, the assessment will have to be made in the light of all the relevant circumstances. 71. It seems to me that the same approach should be taken in applying the grounds for exclusion laid down in Article 12(2)(b) and (c) of Directive 2004/83. (d) Involvement with an entity on a list drawn up by the European Union in connection with instruments for combating terrorism: a ground for exclusion under Article 12(2)(b) and (c) 72. The considerations set out above lead me to rule out the possibility that the mere fact that the asylum-seeker is on the lists of individuals involved in acts of terrorism, drawn up as part of EU measures to combat terrorism, can of itself be conclusive, or even merely indicative, evidence of the application of one or both of the grounds for exclusion laid down in Article 12(2)(b) and (c) of Directive 2004/83. In fact, as mentioned above and pointed out by the Netherlands Government in particular, there is no relationship between those instruments and the directive, especially as regards the objectives pursued. Moreover, to take the opposite view would be contrary to the principles of the 1951 Geneva Convention, which requires a careful analysis, in the light of the specific features of the individual case, of the situations which may result in a refusal to recognise refugee status. 73. A fortiori, I do not consider it legitimate to infer automatically that the conditions for the application of those exclusion clauses are satisfied simply because the applicant was once a member of a group or organisation on those lists. Without going into the question whether such lists (the methods used to draw them up have not been free from criticism (67)) can provide an accurate reflection of the frequently complex reality of the organisations or groups listed, it is sufficient to point out that the exclusion clauses at issue cannot apply unless it is possible to establish the individual responsibility of the person concerned, with regard to whom there must be serious grounds for believing that he has committed a serious non-political crime or has been guilty of an act contrary to the purposes and principles of the United Nations within the meaning of Article 12(2)(b) and (c) of the directive or, pursuant to Article 12(3) of that directive, that he has instigated or otherwise participated in the commission of such crimes or acts. 74. If we are not to proceed on the basis of assumptions, (68) an individual’s voluntary membership of an organisation does not of itself support the conclusion that that person has actually been involved in the activities which led the organisation to be placed on the lists in question. (69) 75. Aside from those general considerations, another significant fact to emerge from the main proceedings is that B and D had broken away from the groups in question quite some time before those groups were placed on the relevant lists. As has already been mentioned, the PKK and Dev sol were placed on the list annexed to Common Position 2001/931 with effect from 2 May 2002. According to their statements at the time of their applications for recognition of refugee status, B had been a member of Dev sol from 1993 to 1995, while D had been a member of the PKK from 1990 to 1998. It follows that, even if the mere fact of voluntary membership of a group on the above lists were to be regarded as constituting conduct material for the purposes of applying the grounds for exclusion laid down in Article 12(2)(b) and (c) – an automatic reaction rejected by all the intervening governments and the Commission – those conditions would not be met in relation to the period when B and D were active in Dev Sol and the PKK. 76. That said, it seems to me that there are essentially three stages in the process of determining whether the conditions governing the application of Article 12(2)(b) and (c) of Directive 2004/83 are satisfied in cases where the person concerned was once a member of a group involved in criminal activities which can be categorised as terrorism. 77. During the first stage, it will be necessary to consider the nature, structure, organisation, activities and methods of the group concerned, as well as the political, economic and social context in which it was operating during the period when the individual in question was a member. While inclusion in a list drawn up at national, EU or international level may constitute an important indicator, it does not dispense the competent authorities of the State concerned from the obligation to carry out that review. (70) 78. During the second stage, it will be necessary to determine whether there is sufficient evidence, regard being had to the standard of proof required under Article 12(2) of Directive 2004/83, to establish the individual responsibility of the person concerned for the acts attributable to the group during the period in which that person was a member, in the light of both objective criteria (actual conduct) and subjective criteria (awareness and intent). In order to do this, it is necessary to identify the role actually played by the individual concerned in the committing of such acts (instigation, participation in the perpetration of the act, reconnaissance or support activities, and so on); his position within the group (involvement in decision-making processes, leadership or representation, recruitment or fund-raising activities, and so on); the extent to which the person knew or should have known about the group’s activities; possible physical or psychological constraints to which he has been subjected or other factors capable of affecting the subjective aspect of that person’s conduct (such as mental disability or the fact of being a minor, and so on), (71) whether that person had a genuine opportunity to prevent the acts in question or to distance himself from them (without jeopardising his own safety). These are just some of the factors to be taken into account in such an appraisal, as the process of establishing the group member’s individual responsibility must take into account all the circumstances of the individual case. (72) 79. During the third stage, it will be necessary to determine whether the acts for which individual responsibility can be regarded as established are among those envisaged by Article 12(2)(b) and (c) of Directive 2004/83, account being taken of the express provision made under Article 12(3) to the effect that ‘[p]aragraph 2 applies to persons who instigate or otherwise participate in the commission of the crimes or acts mentioned therein’. This assessment will have to be made in the light of all the aggravating or mitigating circumstances and any other relevant fact. 80. The criteria set out above, together with all the considerations set out so far, should make it possible to provide the national court with guidance on the issue addressed by the first question. It is apparent, however, from the terms employed by the national court that, in both of the cases before it, it is in fact requesting a ruling on the specific sets of circumstances on which it is required to hand down judgment. For two reasons, essentially, I consider that the Court should decline. 81. First, the national court alone is aware of all the circumstances of the particular cases before it, such as they have come to light during the administrative stages of the review of the applications filed by B and D and at the various levels of court proceedings; the process of determining whether the exclusion clauses at issue can be applied specifically to B and D requires those circumstances to be carefully assessed and weighed. 82. Secondly, Directive 2004/83 lays down common minimum rules for the definition and content of refugee status, in order to provide the competent authorities of the Member States with guidance for applying the 1951 Geneva Convention. Directive 2004/83 does not introduce a uniform body of rules to govern that area; (73) nor does it lay down a centralised procedure for considering applications for recognition of refugee status. As a consequence, it is for the competent authorities and the courts of the Member States, which are responsible for reviewing such applications, to assess in the individual case and in the light of the common criteria laid down in Directive 2004/83, as interpreted by the Court, whether the conditions for recognition of refugee status are met, and also whether the grounds for exclusion of refugee status apply. 3. The second question 83. By its second question, which is identical in both orders for reference, the Bundesverwaltungsgericht asks whether, if the first question is answered in the affirmative, exclusion from refugee status under Article 12(2)(b) and (c) of Directive 2004/83 is conditional upon the applicant continuing to represent a danger. B and D suggest that the Court should answer this in the affirmative, whereas the Bundesverwaltungsgericht leans towards a negative response, as do all the governments that have intervened in the proceedings, as well as the Commission. (74) 84. I agree with the latter view, which is based on a textual and teleological interpretation of Article 12(2) of Directive 2004/83. It is in fact clear from the wording of Article 12(2) that the pre-condition for the application of the exclusion clauses laid down in that provision is past conduct on the part of the applicant which is characterised by the elements described and which occurred before that person was accorded recognition as a refugee. This is clear, in particular, from the verb forms used – ‘has committed’ in point (b) and ‘has been guilty’ in point (c) – and from the further specification, in point (b), that the conduct in question must pre-date the applicant’s admission as a refugee, that is to say, as further elucidated in point (b), it must occur before the ‘time of issuing a residence permit based on the granting of refugee status’. 85. However, neither the provision at issue nor the corresponding provision in the 1951 Geneva Convention refers, whether explicitly or implicitly, to an assessment as to whether the applicant constitutes a current danger to society as an additional condition for the application of the exclusion clauses at issue. The absence of such a condition is consistent with the objectives pursued by the exclusion clauses, which – as we have seen – are intended both to prevent persons who have committed serious offences or non-political crimes from escaping justice by invoking the law on refugees and to prevent refugee status from being accorded to persons whose own conduct has rendered them ‘undeserving’ of international protection, regardless of the fact that they have ceased to be a danger to society. 86. It is true that, so far as the application of Article 1F(b) of the 1951 Geneva Convention is concerned, the UNHCR has stated that, if an applicant convicted of a serious non-political crime has already served his sentence, or has been granted a pardon or benefited from an amnesty, there is a presumption that the exclusion clause laid down therein no longer applies, ‘unless it can be shown that, despite the pardon or amnesty, the applicant’s criminal character still predominates’. (75) However, that statement seems merely to suggest that, in such circumstances, the State concerned can simply continue to refuse the applicant refugee status because he represents a danger to society, in a manner reminiscent of the condition for derogating from the principle of non-refoulement under Article 33(2) of the Convention. (76) Even reasoning a contrario, it is not possible to infer from this a general approach whereby the provision should, in all circumstances, be construed as precluding application of the grounds for exclusion at issue where the applicant has ceased to pose a danger to the community. 87. Lastly, in answer to the question submitted by the Bundesverwaltungsgericht, it seems to me neither necessary nor appropriate to undertake a comparative analysis of Article 12(2) of Directive 2004/8 and Article 21(2) of that directive, which, on the basis of Article 33(2) of the 1951 Geneva Convention, lays down the exception to the principle of non- refoulement. In fact, the Court is not being asked to rule on the possibility of refusing an applicant refugee status because of considerations, relating to the threat posed by that person, analogous to the considerations that may make it legitimate for Member States to derogate from the principle of non-refoulement: it is simply being asked whether application of one of the exclusion clauses under Article 12(2)(b) and (c) of the directive is precluded where it has been established that there is no longer such a danger. 88. On the basis of the foregoing, I propose that the Court should answer the second question to the effect that exclusion from refugee status under Article 12(2)(b) and (c) of Directive 2004/83 is not conditional upon the applicant continuing to represent a danger. 4. The third and fourth questions 89. By its third question, the Bundesverwaltungsgericht asks whether exclusion from refugee status pursuant to Article 12(2)(b) or (c) of Directive 2004/83 is conditional upon a proportionality test. By its fourth question (referred in the event that the third question is answered in the affirmative), it asks, on the one hand, whether it is to be taken into account in considering proportionality that the applicant enjoys protection by virtue of the principle of non-refoulement under Article 3 of the European Convention for the Protection of Human Rights and Fundamental Freedoms (‘ECHR’) or under national law and, on the other, whether exclusion must be regarded as disproportionate only in exceptional cases with particular characteristics. 90. These questions, which should be considered together, also raise a sensitive issue that has long been the subject of debate in the context of the 1951 Geneva Convention: does the application of Article 1F of the Convention require a balance to be struck between the seriousness of the offence or act and the consequences of exclusion, so as to ensure that that provision is applied in a manner proportionate to its objective? Although the terms in which that question is framed appear to have changed somewhat with the expansion and consolidation of the protection of human rights, especially as regards the obligation to protect from torture, the development of international criminal law and the system of extradition, (77) and as a result of the move towards the gradual recognition of a universal jurisdiction in relation to serious international crimes, (78) it remains topical. 91. The UNHCR seems to accept a balancing exercise of that nature in relation to Article 1F(b) of the 1951 Geneva Convention, but to rule it out, in principle, in relation to Article 1F(c), in view of the particularly serious nature of the acts covered by that provision. (79) Many courts in Contracting States have made rulings reflecting their opposition to it even in relation to Article 1F(b). (80) Of the interveners, the French, German, United Kingdom and Netherlands Governments are opposed to a proportionality test, while the Swedish Government and the Commission are in favour of it. 92. Some of the intervening governments have stressed that nothing in the text of Article 1F of the 1951 Geneva Convention or Article 12(2) of Directive 2004/83 would appear to permit a proportionality test. But it seems to me equally possible to argue that there is nothing in those provisions to preclude a proportionality test. Moreover, the need for such a test was explicitly referred to in the travaux préparatoires for the Denmark Convention. (81) 93. It has also been argued, with reference to the origins of Directive 2004/83, that the fact that the specific reference to proportionality made by the Commission in its initial proposal was not incorporated into the final text of the directive weighs against the legitimacy of a proportionality test. However, I do not find that argument particularly convincing, since that omission from the directive may simply reflect the Community legislature’s desire to abide by the text of the 1951 Geneva Convention on that point, leaving the issue to be resolved through interpretation, thus making it easier to adapt to possible changes in the way the Convention is applied. 94. It has also been pointed out that, under Article 1F(b) and (c) of the Convention and Article 12(2)(b) and (c) of Directive 2004/83, exclusion depends solely on certain past conduct on the part of the applicant and leaves out of consideration the seriousness and gravity of the threats of persecution faced by that person. That argument does not seem to me to be decisive either. In reality, we have seen above that factors subsequent to the criminal conduct are also generally taken into consideration, at least in the context of point (b), in assessing whether that conduct is covered by the exclusion clauses in question. Various intervening governments – even if opposed to a proportionality test – list, for instance, among those factors, the fact that the applicant, an active militant in a group considered responsible for terrorist acts, has broken away and openly distanced himself from the group, while the UNHCR regards the fact that the applicant has served his sentence, or that a significant period of time has elapsed since the act was committed, as relevant factors potentially sufficient to prevent exclusion. 95. The principle of proportionality plays a central role in the protection of fundamental rights and in the application of the instruments of international humanitarian law generally. Those instruments have also to be applied in a flexible and dynamic manner. Even if the intention is to preserve the credibility of the system for the international protection of refugees, it does not seem to me desirable to insert an element of rigidity into the application of the exclusion clauses: on the contrary, I consider it essential to retain, within that context, the flexibility needed both to take account of the progress made by the international community in the protection of human rights and to facilitate an approach based on consideration of all the circumstances of the individual case, even if this requires the application of a system under which a balance has to be struck twice (when assessing whether the conduct is serious enough for the purposes of exclusion and when weighing the seriousness of that conduct against the consequences of exclusion). 96. For the purposes of the answer to be given to the national court, it seems to me possible, moreover, to draw a distinction between balancing the seriousness of the conduct against the consequences of exclusion, on the one hand, and applying the principle of proportionality, on the other. 97. As regards the former element, the fact that the applicant benefits from effective protection against refoulement, whether pursuant to international instruments (82) or under national law, comes into play. If that protection is available and accessible in practice, it will be possible to exclude the applicant from refugee status, which entails a range of rights which go above and beyond protection against refoulement and must, in principle, be denied to persons who prove undeserving of international protection; if, on the other hand, recognition of refugee status is the only way of preventing the applicant’s forcible return to a country where he has serious grounds for fearing that – for reasons of race, religion, nationality, adherence to a specific social group or political opinion – he will be subject to persecution endangering his life or physical integrity or to inhuman or degrading treatment, it will not be possible to declare that he is excluded from refugee status. Nevertheless, notwithstanding that the possibility of withholding even the minimum protection afforded by non-refoulement might appear unacceptable, I think that in the case of certain exceptionally serious crimes, that balancing exercise is simply not permissible. (83) 98. As regards the latter element, it is my view that the competent authorities and the courts of the Member States must ensure that points (b) and (c) of Article 12(2) of Directive 2004/83 are applied in a manner proportionate to its objective and, more generally, to the humanitarian nature of the law on refugees. In essence, this means that the process of verifying whether the conditions for the application of those points are met must include an overall assessment of all the circumstances of the individual case. 99. For the reasons set out above, I propose that the Court answer the third and fourth questions in accordance with the approach set out in points 97 and 98 above. 5. The fifth question 100. By its fifth question, the wording of which is essentially the same in both orders for reference, save for the necessary adjustments to reflect the circumstances of each case, the Bundesverwaltungsgericht asks whether it is compatible with Directive 2004/83 to accord recognition of a right of asylum under national constitutional law to a person excluded from refugee status under Article 12(2) of the directive. 101. In that connection, it is necessary, on the one hand, to point out that, consistently with its legal basis, Directive 2004/83 merely lays down minimum common standards and that, under Article 3 of that directive, Member States may introduce or retain more favourable standards for determining who qualifies as a refugee and for determining the content of international protection, provided that those standards are compatible with the directive. On the other hand, as I have already had occasion to point out, Directive 2004/83 defines refugee status in accordance with the 1951 Geneva Convention. 102. As we have seen, the exclusion clauses play a fundamental part in maintaining the credibility of the system set up under the 1951 Geneva Convention and preventing abuse. Accordingly, where the conditions for their application are met, Member States are required, both under the Convention and under Directive 2004/83, to exclude the applicant from refugee status. Should they not do so, they would be in breach both of their international obligations and of Article 3 of the Directive 2004/83, under which more favourable standards for determining refugee status are permissible only if they are compatible with that directive. 103. However, the question submitted by the Bundesverwaltungsgericht turns on whether it is possible for Member States to accord protection to such a person under national law. More specifically, the Bundesverwaltungsgericht raises the question whether such protection is compatible with Directive 2004/83, if – as appears to be the case in relation to the right of asylum guaranteed under Article 16a of the Grundgesetz, according to the information provided by that court – the content of that protection is defined by reference to the 1951 Geneva Convention. However, just as the Convention does not require Contracting States to adopt specific measures in relation to applicants who are excluded from refugee status, neither does it prohibit the granting to such persons of any protection provided for under the national legislation on the right of asylum. Nor can a prohibition of that nature be inferred from Directive 2004/83. 104. It is clear, however, that in a case of that nature, the legal position of such persons is governed exclusively by national law and – as is explicitly stated, moreover, in recital 9 to Directive 2004/83 in relation to ‘third country nationals or stateless persons, who are allowed to remain in the territories of the Member States for reasons not due to a need for international protection but on a discretionary basis on compassionate or humanitarian grounds’ – they fall outside the scope both of Directive 2004/83 and of the 1951 Geneva Convention. 105. That said, and as the Commission has, in my view, properly emphasised, the purpose of the exclusion clauses, as regards maintaining the credibility of the international system for protecting refugees, would be jeopardised if the national protection accorded in this way were likely to raise doubts concerning the source of that protection and convey the impression that the person benefiting from it enjoyed refugee status within the meaning of the Convention and Directive 2004/83. In consequence, it is the responsibility of the Member State which intends, on the basis of the rules of its own legal system, to grant asylum to persons excluded from refugee status under Directive 2004/83, to adopt the measures necessary to enable a clear distinction to be made between that protection and the protection accorded under the directive, not so much in terms of the content of that protection, which must, in my view, be determined by the Member State in question, as in terms of the possibility of confusion as to the source of the protection. 106. On the basis of the foregoing, I propose that the Court answer the fifth question to the effect that Directive 2004/83, and, in particular, Article 3 thereof, does not prevent a Member State from according to a third country national or stateless person excluded from refugee status under Article 12(2) of that directive the protection provided for under the national law on the right of asylum, provided that that protection cannot be confused with the protection accorded to refugees under Directive 2004/83. IV – Conclusions 107. In the light of all of the foregoing considerations, I propose that the following reply be given to the questions referred by the Bundesverwaltungsgericht for a preliminary ruling: 1. For the purposes of applying the grounds for exclusion from refugee status laid down in Article 12(2)(b) and (c) of Council Directive 2004/83/EC of 29 April 2004 in cases where the applicant has once been a member of a group on lists drawn up in the context of EU measures to combat terrorism, the competent authorities of the Member States are required to consider the nature, structure, organisation, activities and methods of the group in question, as well as the political, economic and social context in which it was operating during the period when the person concerned was a member. They will also have to determine whether there is sufficient evidence, regard being had to the standard of proof required under Article 12(2) of Directive 2004/83/EC, to establish the individual responsibility of the person concerned in relation to the acts attributable to the group during the period in which that person was a member, in the light of both objective and subjective criteria and of all the circumstances of the individual case. Lastly, those authorities will have to determine whether the acts for which individual responsibility can be regarded as established are among those envisaged by Article 12(2)(b) and (c) of Directive 2004/83/EC, account being taken of the express provision made under Article 12(3). That assessment will have to be made in the light of all the mitigating and aggravating circumstances and any other relevant fact. It is for the competent authorities of the Member States responsible for reviewing an application for recognition of refugee status, and the courts before which an action is brought against a measure adopted on completion of that review, to determine, in the specific case, in the light of the common criteria laid down in Directive 2004/83/EC, as interpreted by the Court, whether the conditions for recognising refugee status are met, and also whether the grounds for exclusion of refugee status, laid down in Article 12(2)(b) and (c) of that directive, apply. 2. Exclusion from refugee status pursuant to Article 12(2)(b) and (c) of Directive 2004/83/EC is not conditional upon the applicant continuing to represent a source of danger. 3. For the purposes of applying Article 12(2)(b) and (c) of Directive 2004/83/EC, the competent authorities or the courts of the Member States seised of an application for recognition of refugee status must balance the seriousness of the conduct justifying exclusion from refugee status against the consequences of such exclusion. In the course of that appraisal, account must be taken of the fact that the applicant is entitled, on a different basis, to effective protection against refoulement. Where that protection is available and accessible in practice, the applicant will have to be excluded from refugee status; if, on the other hand, recognition of refugee status is the only way of preventing the applicant’s forcible return to a country where he has serious grounds for fearing that – for reasons of race, religion, nationality, adherence to a particular social group or political opinion – he will be subject to persecution likely to endanger his life or physical integrity or to inhuman or degrading treatment, it will not be possible to declare that that person is excluded from refugee status. In the case of exceptionally serious crimes, that balancing exercise is not permissible. The competent authorities and the courts of the Member States must ensure that points (b) and (c) of Article 12(2) of Directive 2004/83/EC are applied in a manner that is proportionate to its objective and, more generally, to the humanitarian nature of the law on refugees. 4. Directive 2004/83/EC and, in particular, Article 3 thereof does not preclude a Member State from according to a third country national or stateless person excluded from refugee status under Article 12(2) of that directive the protection provided for under the national law on the right of asylum, provided that that protection cannot be confused with the protection accorded to refugees under Directive 2004/83/EC. 1 – Original language: Italian. 2 – OJ 2004 L 304, p. 2. 3 – United Nations Treaty Series, Vol. 189, p. 50, No. 2545 (1954). 4 – This footnote does not apply to the English-language version of the Opinion. 5 – This footnote does not apply to the English-language version of the Opinion. 6 – To the same effect, see UN Security Council Resolution 1269 (1999) of 19 October 1999, adopted earlier. 7 – For example, in Resolution 1566 (2004) adopted on 8 October 2004, again on the basis of Chapter VII of the UN Charter, the Security Council states that ‘criminal acts, including against civilians, committed with the intent to cause death or serious bodily injury, or taking of hostages, with the purpose to provoke a state of terror in the general public or in a group of persons or particular persons, intimidate a population or compel a government or an international organisation to do or to abstain from doing any act, which constitute offences within the scope of and as defined in the international conventions and protocols relating to terrorism, are under no circumstances justifiable by considerations of a political, philosophical, ideological, racial, ethnic, religious or other similar nature’. 8 – OJ 2001 L 344, p. 93. 9 – OJ 2002 L 116, p. 75. 10 – In April 2004, the entry regarding the PKK was amended as follows: ‘Kurdistan Workers’ Party (PKK) (a.k.a. KADEK, a.k.a. KONGRA-GEL)’; see Common Position 2003/309/CFSP of 2 April 2004 (OJ 2004 L 99, p. 61). 11 – OJ 2002 L 164, p. 3. 12 – See the presidency conclusions, which may be accessed at http://www.europarl.europa.eu/summits/. 13 – The decision was adopted by the Bundesamt für die Anerkennung ausländischer Flüchtlinge (Federal Office for the recognition of foreign refugees), which was later replaced by the Bundesamt. 14 – In the case of D, as in the case of B, the decision was adopted by the Bundesamt für die Anerkennung ausländischer Flüchtlinge, which later became the Bundesamt. 15 – Common Position 2001/931; see, in that regard, point 11 of this Opinion. 16 – Moreover, the revocation in D’s case, dated 6 May 2004, and the refusal in B’s case, dated 14 September 2004, pre-date the entry into force of Directive 2004/83 (20 October 2004). 17 – Joined Cases C-175/08, C-176/08 and C-179/08 [2010] ECR I‑0000. 18 – Thus, for example, Resolution 1373 (2001) declares ‘acts, methods and practices of terrorism’ to be contrary to the purposes and principles of the United Nations, and prohibits States from according safe haven to those who ‘finance, plan, support, or commit terrorist acts’. See points 5 and 6 of this Opinion. 19 – In particular Article 63(1)(c) EC, which is one of the provisions on the basis of which Directive 2004/83 was adopted. 20 – See point 13 of this Opinion. 21 – See point 14 of this Opinion. 22 – Aydin Salahadin Abdulla and Others, cited in footnote 17 above, paragraph 53. 23 – See point 14 of this Opinion. The process of consultations with the UNHCR was already provided for in Declaration No. 17 annexed to the Treaty of Amsterdam. The importance of the UNHCR’s role was recently reconfirmed in the 2008 European Pact on immigration and asylum, and in the proposal for a regulation establishing a European Asylum Support Office, adopted by the Commission on 18 February 2009 (COM(2009) 66 final). 24 – Currently made up of 78 members, representatives of the UN Member States or members of one of the specialised agencies, the Executive Committee was set up in 1959 by the Economic and Social Council of the United Nations, at the request of the General Assembly. The Conclusions of the Executive Committee are adopted by agreement. A thematic compilation of Executive Committee conclusions, updated in August 2009, is available on the UNHCR website. Although they are not binding, compliance with the conclusions is part of the process of cooperating with the UNHCR, with which the Contracting States undertook to cooperate under Article 35(1) of the Convention. 25 – The UNHCR Handbook on Procedures and Criteria for Determining Refugee Status under the 1951 Convention and the 1967 Protocol relating to the Status of Refugees, 1 January 1992, available at http://www.unhcr.org/refworld/docid/3ae6b3314.html. The Executive Committee commissioned the drafting of the Handbook in 1977. While the Handbook, too, is not binding on the Contracting States, it is seen as having a certain persuasive effect: see Hathaway, The Rights of Refugees under International Law, Cambridge University Press, 2005, p. 114. 26 – Hathaway, op. cit., pp. 115 and 116. 27 – Point (e) of the Conclusion on international protection No. 81 of 1997 of the UNHCR’s Executive Committee calls upon the States ‘to take all necessary measures to ensure that refugees are effectively protected, including through national legislation, and in compliance with their obligations under international human rights and humanitarian law instruments bearing directly on refugee protection, as well as through full cooperation with the UNHCR in the exercise of its international protection function and its role in supervising the application of international conventions for the protection of refugees’; in point (c) of Conclusion No. 50, of 1988, the Executive Committee stresses that ‘States must continue to be guided, in their treatment of refugees, by existing international law and humanitarian principles and practice, bearing in mind the moral dimension of providing refugee protection’. 28 – Cited in footnote 17 above. 29 – The assessment concerning the conditions for recognition of refugee status takes place, save in exceptional cases, before consideration is given as to whether the exclusion clauses apply (‘inclusion before exclusion’). 30 – Global consultations on International Protection, 3-4 May 2001, paragraph (4) of the conclusions, available on the UNHCR website. 31 – Special Rapporteur on the promotion and the protection of human rights and fundamental freedoms while countering terrorism, report of 15 August 2007, paragraph 71, available at http://www.UNHCR.org/refworld/docid/472850e92.html. 32 – To that effect, see, inter alia, Conclusion No. 82 of the UNHCR’s Executive Committee of 1997 on safeguarding asylum. 33 – In particular, if that provision is construed in the light of the other two grounds for exclusion laid down in points (a) and (c) of Article 1F of the Convention. 34 – See, in that connection, paragraph 4.1.1.1. of the document drawn up by the UNHCR for the purposes of this case and appended to B’s written observations. 35 – See, for example, Grahl-Madsen, Status of Refugees, Vol. 1, p. 294; Goodwin-Gill and McAdam, The Refugee in International Law, Oxford University Press, 3rd edition, p. 117. 36 – For example, the age of the person applying for refugee status at the time when the crime was committed, or the economic, social and cultural situation of that person, especially in the case of individuals falling into certain categories, (such as ethnic or religious minorities). 37 – In my view, objective circumstances to be considered would include the political, social and economic situation in the State in which the offence was committed, as well as the level of protection of human rights. 38 – According to the Handbook, paragraphs 151 to 161, relevance must be accorded – including for the purposes of not applying the exclusion clauses – to the fact that the person applying for refugee status has already served all or part of his sentence, or has been granted a pardon or benefited from an amnesty. 39 – The UNHCR Guidelines on International Protection: Application of the Exclusion Clauses: Article 1F of the 1951 Convention relating to the Status of Refugees, 4 September 2003, paragraph 14. 40 – Ibid. 41 – According to the Handbook, the offence must at least be a ‘capital crime or a very grave punishable act’, whereas the Global Consultations on International Protection of 3 to 4 May 2001 classify as serious an offence which attracts a long period of imprisonment (paragraph 11). See also, to that effect, Gilbert, Current Issues in the Application of the Exclusion Clauses, 2001, available at http://www.unhcr.org/refworld/docid/3b389354b.html, p. 17. 42 – Goodwin-Gill and McAdam, op. cit., p. 177 and the legal writers cited in footnote 216. 43 – This expression is used in the travaux préparatoires for the 1951 Geneva Convention with reference to Article 1F (b). 44 – 2003 Guidelines, paragraph 15. 45 – Certain offences, such as robbery or drug-trafficking, even if committed for the purpose of pursuing political objectives, could, because of their nature, be categorised as non‑political offences. 46 – Murder or attempted murder may, within certain limits, be differently assessed if it takes place in the context of a civil war or an insurrection. 47 – It is relevant, for example, whether the act was directed at civilian or military or, indeed, political targets, if it involves the use of indiscriminate violence or is committed with cruelty. 48 – As well as the individual motivation, it is necessary to assess whether there is a clear and direct causal link with the political objective: see, to that effect, paragraph 152 of the Handbook and paragraph 15 of the 2003 Guidelines. 49 – See the Handbook, paragraph 152; the 2003 Guidelines, paragraph 15. 50 – See the Handbook, paragraph 152; the 2003 Guidelines, paragraph 15. 51 – A particular act may, for example, be assessed differently if it takes place against a background of opposition to totalitarian, colonialist or racist regimes, or regimes which have committed serious violations of human rights. It should, in any event, be pointed out that, according to the UNHCR, for an offence to be regarded as a political offence, the objectives pursued must always be consistent with the principles of protecting human rights. 52 – The UNHCR points out that, in the majority of cases, it is the grounds for exclusion laid down in Article 1F(a) and (b) that will in fact apply. 53 – The text is available at: http://www.unhcr.org/refworld/docid/3f5857d24.html. 54 – Paragraph 47. 55 – See Goodwin-Gill and McAdam, op. cit., p. 22, footnote 143. 56 – In which it was specified that the provision in question was not aimed at the ‘man in the street’; see Background Note, paragraph 48. 57 – Paragraph 163. 58 – In the 1996 Guidelines, the UNHCR refers to the application of Article 1F(c) in the 1950s to persons whose denunciations of individuals to the occupying authorities had had serious consequences for the individuals concerned, including death (paragraph 61); see Gilbert, op. cit., p. 22, footnote 144. Gilbert, however, seems to endorse a narrower interpretation of the provision in question and suggests that it should apply only to persons in high office in the government of a State or in the leadership of a rebel movement which controls territory within a State. 59 – See Resolution 53/108 of 26 January 1999. 60 – See point 5 of this Opinion. 61 – Annexed to Resolution 54/109 of the UN General Assembly of 25 February 2000. 62 – See, in this connection, inter alia, Halberstam and Stein, The United Nations,the European Union and the King of Sweden: Economic sanctions and individual rights in a plural world order, in Common Market Law Review, 2009, p. 13 et seq. 63 – Goodwin-Gill and McAdam, op. cit., p. 195. 64 – See UN doc. E/CN.4/2004/4, 5 August 2003. 65– See the 2003 Guidelines, paragraph 15. 66 – The Background Note and the 2003 Guidelines refer to ‘egregious acts of international terrorism affecting global security’. Paragraph 49 of the Background Note further elaborates that ‘only the leaders of groups responsible for such atrocities would in principle be liable to exclusion under this provision’. The UNHCR document drawn up for the purposes of this case also appears to take the same approach. 67 – As we know, between late 2006 and early 2008, ruling on actions brought by certain organisations on that list, the Court of First Instance of the European Communities annulled, basically on grounds of failure to state adequate reasons and breach of the rights of the defence, the decisions by which the Council had placed the plaintiff organisations on the list, in so far as the decisions related to the latter; see, in particular, in relation to the PKK, Case T‑229/02 PKK v Council [2008] ECR II‑45. 68 – In the 2003 Guidelines, the UNHCR states that a presumption of responsibility may, however, arise from the voluntary membership of a group where ‘the purposes, activities and methods [of the group] are of a particularly violent nature’. Such a presumption is, however, always rebuttable (paragraph 19). 69 – It cannot be ruled out, for example, that responsibility for such activities resided solely with a number of extremist fringe elements with which the person concerned never came into contact or that he belonged to the organisation during a period before or after terrorist strategies were employed, or yet that he remained part of the organisation only for the time needed to become aware of the methods employed and to break away. In that connection, it is worth pointing out that in Van Duyn, the Court held – albeit in the different context of restrictions on the freedom of movement for workers justified by reasons of public policy – that membership of a body or organisation can in itself constitute a voluntary act or personal conduct of the individual concerned or reflect participation in the activities of the body or organisation, as well as identification with its aims and designs (Case 41/74 van Duyn [1974] ECR 1337, paragraph 17). 70 – The group in question could – to give just a few examples – be fragmented and made up internally of different cells or different tendencies in conflict with one another, some moderate and others extremist, or have changed objectives and strategies over time, moving from political opposition to guerrilla warfare and vice versa, from focusing on military targets to implementing a genuine terrorist strategy, and so on. Similarly, the context in which the group operates may have changed, as a result, for example, of a change in the political situation or the expansion of the group’s activities from a local or regional level to an international level. 71 – See the 2003 Guidelines. 72 – According to the 2003 Guidelines, for example, the application of the exclusion clauses may not be justified where expiation of the crime is considered to have taken place (for instance, if a sentence has been served or a significant period of time has elapsed since the offence was committed). However, the UNHCR takes a more cautious approach to pardons or amnesties, particularly in the case of heinous acts or crimes (paragraph 23). 73 – In the Hague Programme, which lays down the objectives and instruments in relation to justice and home affairs for the period 2005 to 2010, the European Council expressed its commitment to develop further the common European asylum system by making changes to the legislative framework and improving practical cooperation, in particular by setting up the European Asylum Support Office. However, as the European Council recently pointed out in the 2008 European Pact on Immigration and Asylum, the granting of protection, and refugee status more specifically, falls within the competence of the individual Member States. 74 – The UNHCR expressed the same view in the document drawn up for the purposes of this case. 75 – See the Handbook, paragraph 157. 76 – See Goodwin-Gill and McAdam, op. cit., p. 174. 77 – Gilbert, op. cit., p. 5, who points out that many extradition treaties provide for a duty either to extradite or to prosecute (aut dedere aut judicare) and that various multilateral anti-terrorist conventions include clauses providing that extradition should be refused if there is a risk of persecution on account of race, religion, nationality, political opinion or ethnic origin. 78 – Ibid., p. 4. 79 – See the 2003 Guidelines. See also the 1979 Handbook, paragraph 156. This distinction does not, however, appear to me equally apparent from the document drawn up by the UNHCR for the purposes of this case. 80 – See Gilbert, op. cit., p. 18. 81 – See also footnote 52 to the document drawn up by the UNHCR for the purposes of this case. 82 – For example, pursuant to Article 3 ECHR or Article 3 of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, concluded in New York on 10 December 1984. 83 – It may be possible for the requested State to accord informal protection to individuals who have been guilty of such crimes, and that State will also be able to bring criminal proceedings against the person concerned on the basis of the universal jurisdiction recognised in multilateral treaties in respect of certain crimes, see, to that effect, Gilbert, op. cit, p. 19.