ELENA Weekly Legal Update - 18 April 2014
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18 April 2014

The ELENA Weekly Legal Update will take a two week break
and resume on Friday 9 May 2014 


United Nations

European Court of Human Rights

Asalya v. Turkey (no. 43875/09) [Articles 2, 3, 5, 8 and 13], 15 April 2014

The applicant is a Palestinian paraplegic who is wheel-chair bound, which he alleges results from injuries sustained in an Israeli missile attack on his house in the Gaza strip in 2007. He was taken to Turkey in March 2008 by a humanitarian organisation, where he married his physiotherapist, a Turkish national, in April 2009. A few months later, he was detained pending deportation in Kumkapı Foreigners’ Admission and Accommodation Centre on suspicion of involvement in international terrorism. A Turkish court granted a stay of execution on the deportation, but did not adjudicate on the lawfulness of the detention, and the applicant was released by a decision of the Interior Ministry 7 days after his initial apprehension. In April 2010, after a Rule 39 Interim Measure from the ECtHR, the deportation order was quashed. In March 2013, he was granted a one year residence permit, with the possibility of renewal, on the basis of his family life in Turkey.

The applicant complained before the ECtHR that his detention conditions, including squat toilets and no lift, was tantamount, in view of his disability, to a violation of Article 3 (prohibition of ill-treatment) ECHR. He also submitted under Article 5(1), (4) and (5) (right to liberty) ECHR that his detention was unlawful, lacked effective judicial review, and did not entail an enforceable right to compensation. He also complained, under Article 13 (right to an effective remedy), that Turkish law afforded him no opportunity to challenge his deportation under Articles 2 (right to life), 3 and 8 (right to family life).

The ECtHR, taking detention conditions first, concluded that the Turkish authorities had failed to cater for the applicant’s special needs in detention. In particular, the inaccessibility of sanitation facilities, and the applicant being forced sleeping on a hard table in an office in spite of his serious spinal injury, led the ECtHR to find a violation of Article 3 in this respect.

On Article 5(1), concerning the lawfulness of his detention, the ECtHR reiterated a previous judgment, which found that ‘the absence of clear legal provisions in Turkish law establishing the procedure for ordering detention with a view to deportation’ was a violation of that Article. This was especially so given that, on the third day of his week-long detention, a Turkish judicial authority had stayed the execution of deportation. Finding also a violation of Article 5(4), the ECtHR noted that at no point did the Turkish court examine the lawfulness of the detention. The ECtHR also saw that ‘his release did not result from a review of the legality of his detention by a competent court … but was brought about by a purely discretionary decision of the executive, which could be reversed at any moment’. Article 5(5) was also contravened since the Turkish government couldn’t point to any examples of individuals being compensated for wrongful detention.

The ECtHR also found that the lack of automatic suspensive effect in judicial review of deportation orders, and the failure of the applicant’s deportation order to specify the location to which he would be deported, constituted a violation of Article 13 in conjunction with Articles 2 and 3. On top of a failure to disclose to the applicant the evidence against him, and the Turkish court appearing to take the government’s assertions at face value, the court did not in any way consider whether deportation would interfere with the applicant’s family life. On this basis, a violation of Article 13 with Article 8 was also found.

The ECtHR ordered 9,750 Euros to be paid to the applicant in respect of non-pecuniary damage.

Read the judgment of the ECtHR.

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Paposhvili v. Belgium (no. 41738/10) [Articles 2, 3, and 8], 17 April 2014

The applicant, a Georgian national, challenges the decision of the Belgian authorities to remove him to Georgia and ban him from re-entering Belgian territory. Arriving in Belgium in 1998 with his wife and one child, the couple had two more children by July 2006. Between 1998 and 2007, the applicant was convicted of a number of criminal offences, including robbery. During custody for his convictions, he was diagnosed with chronic lymphocytic leukaemia and tuberculosis, for which he was treated in hospital. In August 2007, after several failed attempts to regularise his residence status on medical grounds, an expulsion order and entry ban were imposed on the applicant on account of danger to public order. Medical treatment left the order unenforced, but in 2010 he was detained pending removal under a new order by the Aliens Office. His release was secured, and his removal postponed, following a Rule 39 Interim Measure. His wife and children have indefinite leave to remain in Belgium.

The applicant submitted to the ECtHR that his removal would violate his rights under Articles 2 (right to life) and 3 (prohibition of ill-treatment) due to the unavailability in Georgia of the necessary treatment for his medical conditions. He also complained that his removal and 10 year entry ban would violate Article 8 (right to family life) due to the separation from his wife and children.

Following its’ previous judgments, the ECtHR held that an Article 3 issue is only raised by treatment facilities in the country of origin ‘in a very exceptional case, where the humanitarian grounds against the removal are compelling’. It is not enough to say that the facilities in the country of origin are inferior to those in the state from which the patient is to be removed, nor is it sufficient to prove that return would cause a ‘significant reduction in life expectancy’. The ECtHR noted that despite the applicant having an incurable and fatal disease, he was fit to travel, faced no imminent threat to his life, had a brother and some land in Georgia, and would be able to access medical treatment in Georgia to stabilise his conditions. On this basis, the ECtHR ruled that his circumstances did not meet the high threshold required for his removal to violate Articles 2 or 3 on medical grounds.

On Article 8, the ECtHR highlighted the number and seriousness of the applicant’s criminal convictions, the precariousness of family life due to the applicant’s lack of a valid residence permit for the whole 15 years of his stay in Belgium, the tolerance of the Belgian authorities regarding the applicant’s family and medical circumstances, his strong social and cultural ties with Georgia, his wife’s ability to care for the children on her own during the applicant’s custody, and the right of his family to leave and return to Belgium freely. For these reasons, the ECtHR assessed Belgium’s refusal to regularise the applicant’s stay as a proportionate interference with his family life.

Read the judgment (French only) of the ECtHR.

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Other judgments and decisions this week

Thursday 17 April 2014

- The applicant’s request of referral to the Grand Chamber of Sharifi v. Austria (no. 60104/08) has been refused. The judgment of 5 December 2013, in which it was held that the Austrian authorities could not be expected to have known that the applicant’s Dublin transfer to Greece in October 2008 would expose him to deficiencies in the asylum system reaching the Article 3 threshold, is now final.

Read the ECtHR’s press release on referrals to the Grand Chamber.

- Lici v. Greece (no. 69881/12) [Articles 3 and 13]

(Detention conditions and availability of effective challenge for an Albanian national held in pre-trial detention in police headquarters and the Aliens Directorate premises in Salonika) – Violation of Article 3, violation of Article 13.

Read the judgment (French only) and press release of the ECtHR.

- Gayratbek Saliyev v. Russia (no. 39093/13) [Articles 3, 5 and 13]

(Persecution risk of proposed extradition to Kyrgyzstan of ethnic Uzbek charged with involvement in inter-ethnic riots in Southern Kyrgyzstan, and complaints concerning effectiveness of remedy against extradition and length of review of detention legality) – Violation of Article 3 (if returned to Kyrgyzstan), violation of Article 5(4).

Read the judgment and press release of the ECtHR.

- Ismailov v. Russia (no. 20110/13) [Articles 3, 5 and 13]

(Proposed deportation to Uzbekistan of an Uzbek national wanted on suspicion of membership of an extremist and terrorist organisation, lack of effective remedy against removal, and lawfulness of detention pending removal) – Violation of Article 3 (if returned to Uzbekistan), violation of Article 5(1), violation of Article 5(4).

Read the judgment and press release of the ECtHR.

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Upcoming judgments of interest

Tuesday 22 April 2014

- A.C. v. Spain (no. 6528/11 and 29 other applications) [Articles 2, 3 and 13] (Proposed removal to Western Sahara of thirty Sahrawis, who sought protection in Spain following the closure of their camp in Western Sahara by Moroccan police)

Thursday 24 April 2014

- Herman and Serazadishvili v. Greece (nos. 26418/11 and 45884/11) [Articles 3, 5(1) and 5(4)] (Conditions, lawfulness and review of detention pending deportation of an Indonesian national and a Georgian national)

Read the forthcoming judgments press release of the ECtHR.

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HUDOC: Case law database launched in Russian

Approximately 1000 Russian translations of ECtHR case law are now available on HUDOC, the ECtHR’s case law database. The ECtHR has also made other court publications available in Russian.

- Press Release of the ECtHR announcing this development

- Russian translations of case law on the HUDOC website

- Russian-language publications and other documentation on specific areas of the Court’s case-law

- Russian version of the Court’s anniversary book The Conscience of Europe

- Further Russian translations of case law from third-party sites

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European Union

Parliament: Plenary votes to approve draft regulation on Frontex-coordinated sea operations

The European Parliament on 16 April 2014 approved by 528 votes to 46, with 88 abstentions, the draft Regulation for Frontex-coordinated surveillance of external sea borders. Operations not co-ordinated by Frontex are not covered. The proposed Regulation establishes rules on interception, search and rescue in territorial waters and on the high seas, disembarkation, and the protection of fundamental rights of migrants in distress at sea. According to the Parliament’s press release, the Regulation, while still requiring formal approval by the EU Council of Ministers, is ‘already informally agreed by Parliament and Council negotiators’ and ‘should enter into force before this summer’. ‘It will enter into force on the 20th day following its publication in the EU Official Journal and it will be directly applicable in the member states’.

The rules impose a clear duty on units participating in Frontex operations to ensure the safety (Article 3) and human dignity (Article 4.4b) of intercepted or rescued persons. The proposed Regulation also provides that any operational plans for Frontex-coordinated operations must contain procedures to ensure that persons with international protection needs, victims of trafficking, unaccompanied minors and other vulnerable persons are identified and provided with appropriate assistance (Recital 9, paragraph 2).
Under Article 9, ‘Member States shall observe their obligation to render assistance to any vessel or person in distress at sea’. Recital 7 states that ‘the shipmaster and crew should not face criminal sanctions for the sole reason of having rescued persons in distress at sea and brought them to a place of safety’.

In addition, the proposed Regulation prohibits the disembarkation of intercepted or rescued persons in a country where they would risk serious harm (Article 4.1). Before disembarkation, units must use all means to identify the intercepted or rescued persons, assess their personal circumstances, inform them of their destination in a way that those persons understand, and give them an opportunity to express any reasons for believing that disembarkation in the proposed place would be in violation of the principle of non-refoulement (Article 4.3).

The compromise allows for Member States to conduct vessels or persons on board intercepted on the high seas - waters beyond the territory of any state - to a third country (Article 7.1a.(c)). Member States can also 'alter the course of' and 'escort' a vessel intercepted in the territorial sea of a Member State to a destination outside the territorial sea of that Member State (Article 6.1a.(b)). Subject to the principle of non-refoulement, disembarkation may take place in the third country from which the vessel is assumed to have departed (Article 10.1(b)). The operational plan to be adopted before the launch of each Frontex operation must include details on the availability of shore-based medical staff, interpreters, legal advisers and other relevant experts, but only when necessary (Article 4.3, paragraph 2).

Read the adopted text of the Regulation (p.175 to p.222) and the Parliament’s press release.

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United Nations

UNHCR: End to general suspension on Dublin returns to Bulgaria due to improvements in asylum system, but warning issued regarding vulnerable persons 

In their April 2014 update of UNHCR Observations on the Current Situation of Asylum in Bulgaria, UNHCR concludes that ‘a general suspension of all Dublin transfers to Bulgaria is no longer justified’. However, ‘UNHCR notes that serious gaps in the system still remain, and that there may be reasons not to transfer certain groups or individuals, in particular those with specific needs or vulnerabilities’. UNHCR encourages states to conduct individual assessments in these cases.

To justify the lifting of the suspension on transfers to Bulgaria, UNHCR notes that ‘conditions in the centres have improved, particularly in the Harmanli centre a former military base located 50 kilometres from the Turkish border where asylum-seekers were living in tents just four months ago. Today asylum-seekers living in the centres receive daily hot meals, are accommodated in renovated buildings or accommodation in the process of being renovated, with heating, and have access to health care. In addition, with more staff, all asylum-seekers have been registered and progress is being made on asylum decisions’.

Improvements in the Bulgarian asylum system are qualified by remaining concerns about the accommodation and sanitary conditions in two Sofia centres in Vrazdebhna and Voenna Rampa. ‘UNHCR is also concerned about the lack of identification, referral and support to individuals with specific needs; the barriers children face in accessing formal education; and the lack of a sustainable integration programme. It is essential that these serious gaps are addressed and that improvements already made are sustained going forward’.

Concern is also reiterated over measures to restrict access to the territory along the Turkish border, citing a marked decrease in the number of arrivals since December 2013, and several reports of ‘push-backs’ of Syrians, Afghans, Sudanese, and Palestinians attempting to enter Bulgarian territory.

In view of the potentially large number of pending Dublin transfers to Bulgaria – as of 31 March 2014, 1,628 requests from other Dublin participating States were already pending before the Bulgarian authorities, with 614 under the “take back” and 819 under the “take charge” provisions of the Dublin Regulation as well as 195 requests for information under the Dublin Regulation – UNHCR ‘is concerned about the medium- to long- term sustainability of the improvements made so far’ and ‘will continue to monitor the situation closely’.

Read UNHCR’s full report and press release

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The purpose of the ELENA legal updates is to inform asylum lawyers and legal organizations supporting asylum seekers and refugees of recent developments in the field of asylum law. Please note that the information provided is taken from publicly available information on the internet. Every reasonable effort is made to make the content accurate and up to date at the time each item is published but no responsibility for its accuracy and correctness, or for any consequences of relying on it, is assumed by ECRE/ELENA. The contents of this publication can in no way be taken to reflect the views of the European Commission, UNHCR, or ECRE/ELENA and in no way purport to provide an exhaustive update on asylum law developments across Europe. For more up to date information, additions, corrections and comments please contact Matthew Fraser (mfraser@ecre.org) or Julia Zelvenska (jzelvenskaya@ecre.org).

Supported by the Fundamental Rights and Citizenship Funding Programme of the European Union and UNHCR