EU states cannot automatically deny entry to a war criminal or suspected war criminal, but authorities also are not forced to accept them, the European Court of Justice (ECJ) in Luxembourg ruled on Wednesday.

The court heard the cases of two men, one Afghan and one with Croatian and Bosnian citizenship, and ruled the severity of their crimes or alleged crimes and how long ago they took place need to be taken into consideration before an entry ban is permitted.

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"The need for a restriction on the freedom of movement and residence of an EU citizen, or a family member of an EU citizen, suspected of having, in the past, participated in war crimes must be assessed on a case-by-case basis," the court said.

The court heard the cases at the behest of the Netherlands and Belgium, which both repeatedly denied asylum to the men.

The Croatian-Bosnian, referred to as K. in the court's decision, was denied asylum in the Netherlands three times, as well as being banned from entering the country, before eventually being admitted as an "undesirable immigrant" in 2015, following Croatia's accession to the EU. K's case was referred to the ECJ by the District Court of the Hague in Middelburg, Netherlands.

​Protecting society and victims

K. was found guilty of war crimes and crimes against humanity during his time in the Bosnian army. Dutch authorities cited the need to protect public safety and shield citizens from contact with war criminals as the grounds for denying K. asylum. They specifically pointed to the need to protect victims and their families from encountering their abuser.

The Afghan, H.F., was also denied asylum in the Netherlands and later Belgium. In 2013, he applied for residency in Belgium as an EU citizen's family relation, citing his daughter's nationality in the Netherlands. His Belgian request was denied because information in his Dutch application suggested he had participated in war crimes or crimes against humanity in Afghanistan or given others orders to do so.

The Belgian Council for Asylum and Immigration Proceedings sent the case to the ECJ as it, too, was uncertain if denying H.F. asylum was in accordance with EU directives on the freedom of movement and residence for EU citizens.

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Freedom of movement and residency may be restricted

The ECJ found that member states may indeed restrict freedom of movement and residence for EU citizens and family members for public safety reasons. Specifically, if an individual has been found guilty or is seriously suspected of having committed "a war crime or a crime against humanity or was guilty of acts contrary to the purposes and principles of the United Nations."

Read more: How much does the EU care about human rights?

The court added, however, that any such decision must be made on a case-by-case basis and be based on an assessment of the gravity of crimes committed, personal involvement, whether the person had in fact been convicted and whether they displayed a "persistent disposition hostile to the fundamental values of the EU, such as human dignity and human rights."

In its decision, the court emphasized the fact that a prior denial of refugee status did not automatically infer an individual would pose a threat to public safety.  

Editor's note: Deutsche Welle (DW) follows the German press code, which stresses the importance of protecting the privacy of suspected criminals or victims and obliges us to refrain from revealing full names in such cases.

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