the echr and fundamental rights protection in asylum cases ejtn/administrative law... · the echr...

The ECHR and Fundamental Rights Protection

in Asylum Cases

Martin Kuijer

European Judicial Training Network (EJTN) and the Finnish ministry of JusticeHelsinki, 10 November 2016

https://www.ifitweremyhome.com/compare/FI/NL

Eurostat

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Absolute nature of the provision

ECHR 15 November 1996, Chahal v. the United Kingdom (appl. no. 22414/93)

80. The prohibition provided by Article 3 againstill-treatment is equally absolute in expulsioncases. […]. In these circumstances, the activitiesof the individual in question, howeverundesirable or dangerous, cannot be a materialconsideration.


ECHR [GC] 28 February 2008, Saadi v. Italy(appl. no. 37201/06)

148. [I]t should be pointed out that even if [...] the Tunisianauthorities had given the diplomatic assurances requested byItaly, that would not have absolved the Court from theobligation to examine whether such assurances provided, intheir practical application, a sufficient guarantee that theapplicant would be protected against the risk of treatmentprohibited by the Convention.


ECHR 17 January 2012, Abu Qatada v. the United Kingdom (appl. no. 8139/09)

188-189: “In assessing the practical application of assurancesand determining what weight is to be given to them, thepreliminary question is whether the general human rightssituation in the receiving State excludes accepting anyassurances whatsoever. However, it will only be in rare casesthat the general situation in a country will mean that noweight at all can be given to assurances. More usually, theCourt will assess first, the quality of assurances given and,second, whether, in light of the receiving State’s practices theycan be relied upon. In doing so, the Court will have regard,inter alia, to the following factors:


(i) whether the terms of the assurances have been disclosed to the Court(ii) whether the assurances are specific or are general and vague(iii) who has given the assurances and whether that person can bind the receiving State(iv) if the assurances have been issued by the central government of the receiving State, whether local authorities can be expected to abide by them(v) whether the assurances concerns treatment which is legal or illegal in the receiving State(vi) whether they have been given by a Contracting State


(vii) the length and strength of bilateral relations between the sending and receiving States, including the receiving State’s record in abiding by similar assurances(viii) whether compliance with the assurances can be objectively verified through diplomatic or other monitoring mechanisms, including providing unfettered access to the applicant’s lawyers(ix) whether there is an effective system of protection against torture in the receiving State, including whether it is willing to cooperate with international monitoring mechanisms (including international human rights NGOs), and whether it is willing to investigate allegations of torture and to punish those responsible(x) whether the applicant has previously been ill-treated in the receiving State(xi) whether the reliability of the assurances has been examined by the domestic courts of the sending/Contracting State


Terrorism cases

• ECHR 20 July 2010, A. v. Netherlands (appl. no. 4900/06)

• ECHR 5 April 2011, Toumi v. Italy (appl. no. 25716/09)

• ECHR 22 September 2011, H.R. v. France (appl. no.64780/09)

• ECHR 30 May 2013, Rafaa v. France (appl. no. 25393/10)

Structure of the provision

Minimum level of severity

‘Torture’ – Article 1 UNCAT

Severe pain of suffering

Intentional or deliberate

Pursuit of a purpose

‘Inhuman’

‘Degrading’

Which form of ill-treatment is required in refoulementcases?


ECHR 22 June 2006, D. a.o. v. Turkey (appl. no. 24245/03)

49. Comme la Cour l’a déjà énoncé, un châtimentcorporel peut se révéler incompatible avec ladignité et l’intégrité physique de la personne,notions protégées par l’article 3 de la Convention.Pour qu’une peine soit « dégradante » etenfreigne cette disposition, l’humiliation oul’avilissement dont elle s’accompagne, doivent sesituer à un niveau particulier et différer en toutcas de l’élément habituel d’humiliation inhérent àchaque peine.


ECHR [dec] 28 February 2006, Z. and T. v. United Kingdom (appl. no. 27034/05)

“As a result, protection is offered to those who have asubstantiated claim that they will either suffer persecution for,inter alia, religious reasons or will be at real risk of death orserious ill-treatment, and possibly flagrant denial of a fair trialor arbitrary detention, because of their religious affiliation (asfor any other reason).

The Soering doctrine

ECHR 7 July 1989, Soering v. the United Kingdom (appl. no. 14038/88)

88. […] It would hardly be compatible with theunderlying values of the Convention, that "commonheritage of political traditions, ideals, freedom and therule of law" to which the Preamble refers, were aContracting State knowingly to surrender a fugitive toanother State where there were substantial grounds forbelieving that he would be in danger of being subjectedto torture, however heinous the crime allegedlycommitted.

Application in expulsion cases

General situation of violence

• ECJ C-465/07, preliminary ruling of 17 January 2009 (Elgafaji)

• ECHR 20 January 2009, F.H. v. Sweden (appl. no. 32621/06)

• ECHR [dec] 7 April 2009, Ghulami v. France (appl. no. 45302/05)

• ECHR 28 June 2011, Sufi and Elmi v. the United Kingdom(appl. nos. 8319/07 & 11449/07)


Membership of a vulnerable group

• ECHR 11 January 2007, Salah Sheekh v. Netherlands (appl. no. 1948/04)

• ECHR 17 July 2008, NA v. the United Kingdom (appl. no. 25904/07)


Special distinguishing features

• ECHR 30 October 1991, Vilvarajah v. the United Kingdom (appl. no. 13163/87)

Danger emanating from persons or groups of persons who are not public officials

• ECHR 29 April 1997, H.L.R. v. France (appl. no. 24573/94)


Internal flight alternative


• ECHR 1 June 2006, Jeltsujeva v. Netherlands (appl. no. 39858/04). See however: ECHR 7 July 2016, R.V. v. France(appl. no. 78514/14)

Afghanistan

• ECHR 20 July 2010, N. v. Sweden (appl. no. 23505/09)

• ECHR 13 October 2011, Husseini v. Sweden (appl. no. 10611/09)

• ECHR 29 January 2013, S.H.H. v. United Kingdom (appl. no. 60367/10)

• ECHR 9 April 2013, H. and B. v. United Kingdom (appl. nos. 70073/10 & 44539/11)

• ECHR 5 July 2016, A.M. v. The Netherlands (appl. no. 29094/09)

Iran

• ECHR 15 May 2012, S.F. v. Sweden (appl. no. 52077/10): sur place activities

• ECHR 11 July 2000, Jabari v. Turkey (appl. no. 40035/98)• ECHR 22 September 2009, Abdolkhani and Karimnia v.

Turkey (appl. no. 30471/08)• ECHR 19 January 2010, Z.N.S. v. Turkey (appl. no.

21896/08): Christian in Iran• ECHR 10 October 2013, K.K. v. France (appl. no. 18913/11):

former member of the Iranian intelligence services, violation

• ECHR 18 November 2014, M.A. v. Switzerland (appl. no. 52589/13): active participation in demonstrations against the Iranian regime, violation

Iraq

ECHR [GC] 23 August 2016, J.K. a.o. v. Sweden (appl. no. 59166/12)

• security situation in Baghdad City had deteriorated• Iraqi authorities’ capacity to protect their people

had to be regarded as diminished• past ill-treatment provides a strong indication of a

future treatment contrary to Article 3. In suchcircumstances, it would be for the Government todispel any doubts about that risk. In the applicants’case, the family had been exposed to the mostserious forms of abuses by al-Qaeda

Somalia

• ECHR 10 September 2015, R.H. v. Sweden (appl. no. 4601/14)

• ECHR 5 September 2013, K.A.B. v. Sweden (appl. no. 886/11)

• ECHR 28 June 2011, Sufi and Elmi v. United Kingdom (appl. nos. 8319/07 & 11449/07)

Other situations

Ill-treatment of asylum seekers/refugees/illegal immigrants by an official

• ECHR 17 January 2012, Zontul v. France (appl. no. 12294/07)

Other situations

Detention conditions in alien detention

• ECHR 22 July 2010, A.A. v. Greece (appl. no. 12186/08)

• ECHR 19 January 2012, Popov v. France (appl. no. 39472/07 and 39474/07)

• ECHR 26 November 2015, Mahamed Jama v. Malta (appl. no. 10290/13)

Situations ordinarily rejected

Withholding residence status

• ECHR [dec] 15 September 2005, Bonger v. the Netherlands (appl. no. 10154/04)

• ECHR [dec] 18 October 2011, I. v. the Netherlands (appl. no. 24147/11)

• ECHR 12 January 2016, A.W.Q. & D.H. v. the Netherlands (appl. no. 25077/06)


Socio-economic misery

• ECHR [GC] 27 May 2008, N. v. United Kingdom (appl. no. 26565/05)


Medical cases?

• ECHR 2 May 1997, D. v. United Kingdom (appl. no. 30240/96)

• ECHR [GC] 27 May 2008, N. v. United Kingdom (appl. no. 26565/05)

• ECHR 27 February 2014, S.J. v. Belgium (appl. no. 70055/10)

• ECHR 17 April 2014, Paposhvili v. Belgium (appl. no. 41738/10) – currently pending before the Grand Chamber

Interim measure

• ECHR 4 February 2005, Mamatkulov v. Turkey (appl. nos. 46827/99 & 46951/99)

Human rights at Europe’s frontiers

Human rights at Europe’s frontiers

• ECHR 23 February 2012, Hirsi Jamaa a.o. v. Italy (appl. no. 27765/09)

• ECHR 25 June 1996, Amuur v. France (appl. no. 19776/92)

• ECHR 12 February 2009, Nolan and K. v. Russia (appl. no. 2512/04)

The Dublin mechanism

• ECHR [GC] 21 January 2011, M.S.S. v. Belgium and Greece (appl. no. 30696/09)

• ECJ C-411/10 and C-493/10, 21 December 2011 (N.S.)

• ECHR [GC] 4 November 2014, Tarakhel v. Italy (appl. no. 29217/12)

• ECHR 3 November 2015, J.A. v. the Netherlands (appl. no. 21459/14)

• ECHR 6 June 2013, Mohammed v. Austria (appl. no. 2283/12)

• ECHR 3 July 2014, Mohammadi v. Austria (appl. no. 71932/12)

Reception facilities / living conditions

• ECHR [dec] 18 October 2011, I. v. the Netherlands (appl. no. 24147/11)

• ECHR [GC] 21 January 2011, M.S.S. v. Belgium and Greece(appl. no. 30696/09), § 253 and 254

• ECSR 1 July 2014, Conference of European Churches (CEC) v. Netherlands (communication 90/2013)

Asylum procedures

• ECHR 10 July 2014, Mugenzi v. France (appl. no. 52701/09)

Asylum procedures

ECHR 11 January 2007, Salah Sheekh v. Netherlands (appl. no. 1948/04)

136. In determining whether it has been shown that the applicant runs a realrisk, if expelled, of suffering treatment proscribed by Article 3, the Court willassess the issue in the light of all the material placed before it, or, ifnecessary, material obtained proprio motu […] In respect of materialsobtained proprio motu, the Court considers that, given the absolute nature ofthe protection afforded by Article 3, it must be satisfied that the assessmentmade by the authorities of the Contracting State is adequate and sufficientlysupported by domestic materials as well as by materials originating fromother reliable and objective sources such as, for instance, other Contractingor non-Contracting States, agencies of the United Nations and reputable non-governmental organisations. […] [I]n assessing an alleged risk of treatmentcontrary to Article 3 in respect of aliens facing expulsion or extradition, a fulland ex nunc assessment is called for as the situation in a country ofdestination may change in the course of time.

Asylum procedures

ECHR 23 October 2012, F.A.K. v. Netherlands (appl. no. 30112/09), para. 64

The Court would add, for the sake of clarity, that it is, in principle, for an individual who invokes the protection of Article 3 of the Convention to prevent his or her expulsion to show that sufficient grounds exist. It is not for the respondent to disprove factual allegations unsupported by evidence, as the applicant appears to imply.

ECHR 9 March 2010, R.C. v. Sweden (appl. no. 41827/07)It is frequently necessary to give them the benefit of the doubt when it comes to assessing the credibility of their statements and the documents submitted in support thereof.

ECHR 2 October 2012, Singh v. Belgium (appl. no. 33210/11)

Asylum procedures

ECHR [GC] 13 December 2012, De Souza Ribeiro v. France(appl. no. 22689/07), § 82

The effectiveness of the remedy [...] also requires that the person concerned should have access to a remedy with automatic suspensive effect.

ECHR 5 July 2016, A.M. v. the Netherlands (appl. no. 29094/09)

Asylum procedures

• ECHR 15 May 2012, Labsi v. Slovakia (appl. no. 33809/08), §139

• ECHR [GC] 19 February 2009, A. v. United Kingdom (appl. no. 3455/05)

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