PPT presentation

The ECHR and Fundamental Rights
Protection
in Asylum Cases
Martin Kuijer
European Judicial Training Network (EJTN) and Centro de Estudos Judiciarios
Lisboa, 5 November 2015
Siege of Lisbon by Roque Gameiro
Eurostat – Asylum quarterly report
Business Insider
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 against
ill-treatment is equally absolute in expulsion
cases. […]. In these circumstances, the activities
of the individual in question, however
undesirable or dangerous, cannot be a material
consideration.
Absolute nature of the provision
ECHR [GC] 28 February 2008, Saadi v. Italy
(appl. no. 37201/06)
148. [I]t should be pointed out that even if [...] the Tunisian
authorities had given the diplomatic assurances requested by
Italy, that would not have absolved the Court from the
obligation to examine whether such assurances provided, in
their practical application, a sufficient guarantee that the
applicant would be protected against the risk of treatment
prohibited by the Convention.
Absolute nature of the provision
ECHR 17 January 2012, Abu Qatada v. the United
Kingdom (appl. no. 8139/09)
188-189: “In assessing the practical application of assurances
and determining what weight is to be given to them, the
preliminary question is whether the general human rights
situation in the receiving State excludes accepting any
assurances whatsoever. However, it will only be in rare cases
that the general situation in a country will mean that no
weight at all can be given to assurances. More usually, the
Court will assess first, the quality of assurances given and,
second, whether, in light of the receiving State’s practices they
can be relied upon. In doing so, the Court will have regard,
inter alia, to the following factors:
ECHR 17 January 2012, Abu Qatada v. the United
Kingdom (appl. no. 8139/09)
(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
ECHR 17 January 2012, Abu Qatada v. the United
Kingdom (appl. no. 8139/09)
(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
Absolute nature of the provision
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 refoulement
cases?
Structure of the provision
ECHR 22 June 2006, D. a.o. v. Turkey (appl. no.
24245/03)
49. Comme la Cour l’a déjà énoncé, un châtiment
corporel peut se révéler incompatible avec la
dignité et l’intégrité physique de la personne,
notions protégées par l’article 3 de la Convention.
Pour qu’une peine soit « dégradante » et
enfreigne cette disposition, l’humiliation ou
l’avilissement dont elle s’accompagne, doivent se
situer à un niveau particulier et différer en tout
cas de l’élément habituel d’humiliation inhérent à
chaque peine.
Structure of the provision
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 a
substantiated claim that they will either suffer persecution for,
inter alia, religious reasons or will be at real risk of death or
serious ill-treatment, and possibly flagrant denial of a fair trial
or arbitrary detention, because of their religious affiliation (as
for 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 the
underlying values of the Convention, that "common
heritage of political traditions, ideals, freedom and the
rule of law" to which the Preamble refers, were a
Contracting State knowingly to surrender a fugitive to
another State where there were substantial grounds for
believing that he would be in danger of being subjected
to torture, however heinous the crime allegedly
committed.
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)
Application in expulsion cases
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)
Application in expulsion cases
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)
• ECHR 11 January 2007, Salah Sheekh v. Netherlands (appl.
no. 1948/04)
Internal flight alternative
• ECHR 11 January 2007, Salah Sheekh v. Netherlands (appl.
no. 1948/04)
• ECHR 1 June 2006, Jeltsujeva v. Netherlands (appl. no.
39858/04)
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)
Eritrea
• ECHR 23 February 2012, Hirsi Jamaa and Others v. Italy
(appl. no. 27765/09)
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 4 June 2015, J.K. a.o. v. Sweden (appl. no. 59166/12) –
case has been referred to the Grand Chamber
55. The Court notes that the situation has significantly worsened
since June 2014 when ISIS and aligned forces began a major
offensive in northern Iraq against the Iraqi Government during
which Samarra, Mosul and Tikrit were captured. It also notes the
UNHCR position on returns to Iraq of October 2014 that UNHCR
urges States not to forcibly return persons originating from Iraq
until tangible improvements in the security and human rights
situation have occurred. Nevertheless, so far there are no
international reports on Iraq which could lead the Court to
conclude that the general situation in Iraq is now so serious as to
cause, by itself, a violation of Article 3 of the Convention in the
event of a person’s return to that country.
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)
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)
Situations ordinarily rejected
Socio-economic misery
• ECHR [GC] 27 May 2008, N. v. United Kingdom (appl. no.
26565/05)
Situations ordinarily rejected
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 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 real
risk, if expelled, of suffering treatment proscribed by Article 3, the Court will
assess the issue in the light of all the material placed before it, or, if
necessary, material obtained proprio motu […] In respect of materials
obtained proprio motu, the Court considers that, given the absolute nature of
the protection afforded by Article 3, it must be satisfied that the assessment
made by the authorities of the Contracting State is adequate and sufficiently
supported by domestic materials as well as by materials originating from
other reliable and objective sources such as, for instance, other Contracting
or non-Contracting States, agencies of the United Nations and reputable nongovernmental organisations. […] [I]n assessing an alleged risk of treatment
contrary to Article 3 in respect of aliens facing expulsion or extradition, a full
and ex nunc assessment is called for as the situation in a country of
destination 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 for the purposes of Article
13 requires imperatively that the complaint be subject to
close scrutiny by a national authority, independent and
rigorous scrutiny of a claim that there exist substantial
grounds for fearing a real risk of treatment contrary to
Article 3 and reasonable promptness. In such a case,
effectiveness also requires that the person concerned
should have access to a remedy with automatic suspensive
effect.
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)
"HOME"
by Warsan Shire
you only leave home
when home won't let you stay.
you have to understand,
that no one puts their children in a boat
unless the water is safer than the land
i want to go home,
but home is the mouth of a shark
home is the barrel of the gun
and no one would leave home
unless home chased you to the shore
unless home told you
to quicken your legs
leave your clothes behind
crawl through the desert
wade through the oceans