ELENA Weekly Legal Update (EWLU)

17 March 2017


European Court of Human Rights European Union National Developments ECRE

European Court of Human Rights

Z.A. and others v. Russia (nos.  61411/15, 61420/15, 61427/15, 3028/16) [Articles 3 and 5 §§ 1], 28 March 2017

The ECtHR gave its judgment in case Z.A. and others v. Russia (nos.  61411/15, 61420/15, 61427/15, 3028/16), concerning complaints brought by four individuals from Iraq, the Palestinian territories, Somalia and Syria who were travelling via Moscow’s Sheremetyevo Airport and were denied entry into Russia. Three of the applicants ended up spending between five and eight months in the transit zone of the airport; one of the applicants, from Somalia, spent nearly two years in the zone. All four applicants applied for refugee status in Russia, without success. The applicants’ complained that the poor material conditions of their stay in the transit zone had been incompatible with the guarantees of Article 3 ECHR and that their confinement to the airport’s transit zone amounted to an unlawful deprivation of liberty in breach of Article 5 § 1 ECHR.

The ECtHR rejected the government’s argument that the applicants were not under Russia's jurisdiction and found that the applicants’ confinement in the transit zone of Sheremetyevo Airport amounted to a de facto deprivation of liberty. Due to the government’s failure to provide any grounds for justifying the applicants’ deprivation of liberty, and drawing on the ECtHR’s previous judgment in Riad and Idiab v. Belgium, the Court concluded that there has been a violation of Article 5 § 1 ECHR.

With regard to Article 3, the ECtHR concurred with the applicants and with UNHCR that the conditions at the transit zones were appalling: they had no beds, no place to maintain personal hygiene and no privacy. The Court also affirmed that being in that situation for extended periods caused the applicants considerable mental suffering, undermined their dignity and made them feel humiliated. It reiterated that the absence of a positive intention of humiliating or debasing the applicants cannot rule out a finding of a violation of Article 3 of the Convention. Therefore, the ECtHR found a violation of Article 3 ECHR.

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Communicated cases:

Ahmadi and others v. Greece (no. 39065/16), communicated on 3 March 2017

On 3 March 2017, the European Court of Human Rights communicated case Ahmadi and others v. Greece (no. 39065/16), which relates to the detention of the applicants in the VIAL hotspot in Chios. The applicants were detained in the hotspots on 20 March 2016 and allowed to leave the hotspot on 21 April 2016, but did not do so since they were prohibited from leaving the island of Chios. The ECtHR asks the parties: (1) if there has been a violation of Article 3 regarding the detention conditions in the hotspots; (2) if the detention of the applicants from 20 March to 21 April was lawful under the requirements of Article 5 § 1; (3) if the applicants were informed about the reasons for their detention in a language they  understand, as required by Article 5 § 2; (4) if the applicants had access to contest the lawfulness of their detention, as required by  Article 5 § 4, considering the allegation that they were not notified of any detention decision in their regard.

Based on an unofficial translation by the ELENA Weekly Legal Update.

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M.B. v. the Netherlands (no. 71008/16), communicated on 8 March 2017

On 8 March 2017, the European Court of Human Rights communicated case M.B. v. the Netherlands (no. 71008/16), which concerns the detention of a Syrian asylum seeker on grounds of “threat to national security or public order”. The applicant lodged an appeal against his immigration detention arguing that it was in violation of Article 5 ECHR as it had not been imposed with a view to his removal (as the Netherlands do not remove applicants to Syria, regardless of the result of the asylum application). After successive appeals, the applicant complains before the ECtHR that the full period of his immigration detention was contrary to Article 5 § 1 (f) of the Convention.

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H and others v. Switzerland (no. 67981/16), communicated on 10 March 2017

On 10 March 2017, the ECtHR communicated case H and others v. Switzerland (no. 67981/16), which concerns the pending transfer from Switzerland to Italy of four asylum seekers, two of which were under HIV-related medical treatment. Three of the applicants arrived in Italy in May 2016 and were fingerprinted there but did not apply for asylum. Due to the reception conditions in Italy and the lack of medical care for the pregnant applicant, they travelled to Switzerland where they applied for asylum in June 2016. The fourth applicant was born in July 2016, also when the mother was diagnosed with HIV. She received proper medication and medical attention and the new-born was provided with HIV prophylaxis for four weeks. The Swiss State Secretariat for Migration (SEM) requested a transfer of the applicants to Italy, which Italy accepted providing assurances that the family would be accommodated in one of the family units provided by the Italian system for asylum seekers and refugees protection. The applicants complain under Article 3 ECHR that due to the increased number of migrants in Italy, there is strong likelihood that they will not receive proper accommodation there and that the transfer will interrupt their medical treatment, with life-threatening consequences.

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European Union

CJEU: Request for preliminary ruling: C-56/17 Fathi (Bulgaria)

The Bulgarian Administrative Court of Sofia has referred preliminary questions to the CJEU in case C-56/17 Fathi concerning the interpretation of Regulation (EU) No 604/2013 (Dublin Regulation III) and Directive 2011/95/EU (Qualification Directive) in a case of an Iranian man who applied for asylum in Bulgaria on the ground of his religion. The court asks inter alia whether a Member State can decide to take responsibility for an application without issuing an explicit decision in accordance with the Dublin criteria where there are no indications of derogation as meant in Article 17 of the Dublin Regulation. The court also refers questions related to the credibility of belonging to a particular religion, especially where the applicant did not make statements and did not submit evidence concerning aspects which are characteristic of adhering to a particular religion and which are strictly related to the indication of persecution in the country of origin. The court also refers a question concerning the burden of proof with regard to the concept of religion.

Based on an unofficial translation by the ELENA Weekly Legal Update.

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FRA Report: “Current migration situation in the EU: Lesbian, gay, bisexual, transgender and intersex asylum seekers”

The EU Fundamental Rights Agency released its report titled “Current migration situation in the EU: Lesbian, gay, bisexual, transgender and intersex asylum seekers”, reviewing how asylum claims based on sexual orientation and gender identity are assessed in different Member States and analysing the existence of specific reception measures for LGBTI persons.

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National Developments

Hungary: new legislation undermining asylum seekers’ rights enters into force

On 28 March 2017, the new Hungarian legislation entered into force after being approved by the Hungarian Parliament on 7 March 2017. The legislation amended five acts (the Act on Asylum, the Act on the Admission and Right of Residence of Third-Country Nationals, the Act on State Border, the Act on Minor Offences and the Act on Child Protection and Guardianship Management), under which:

  • The police will ‘escort’ every irregularly staying migrant to outside of the border fence at Hungary’s southern border. Once behind the fence, migrants will have to queue to enter transit zones at the Hungarian border where asylum applications would be lodged and processed, and where asylum applicants would be automatically held in detention for the duration of the entire asylum procedure;
  • The police will ‘escort’ those already accommodated at open reception facilities or detained in asylum detention facilities to the transit zones;
  • All asylum-seekers, including all vulnerable persons and unaccompanied asylum-seeking children over 14 years of age, will be detained in the transit zones;
  • Asylum applications shall be submitted solely within the transit zones;
  • Despite the de facto detention in the transit zone, no detention order will be issued and consequently no legal remedy will be available against the detention in the transit zones. The current maximum 28 days of stay in the transit zone is eliminated, which means that asylum seekers can be detained until their asylum procedure end;
  • The deadline to seek judicial review of inadmissibility decisions and rejections of asylum applications is shortened to 3 days;
  • Personal interviews in the judicial review of asylum decisions can be carried out remotely via telecommunication devices;
  • Judicial clerks, who are not appointed fully qualified judges, are also to be involved in making court decisions in the asylum procedure
  • Asylum seekers in the transit zones are obliged to cover the costs of their detention unless they are granted protection status.
On 27 March 2017, the Court granted a request by the Hungarian Helsinki Committee under Rule 39 to halt the transfers from open reception facilities to the transit zones of 8 unaccompanied asylum-seeking children and a traumatised woman with advanced and high-risk pregnancy.

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France: Administrative Court strikes down measure banning the distribution of food to migrants in Calais

On the 22 March 2017, the Administrative Court of Lille has suspended the execution of orders by the mayor of Calais of 7 February, 2 March, 6 March and 9 March 2017 prohibiting the distribution of meals on sites located in the industrial zone of the Dunes and Bois Dubrulle in Calais. The court considered that the measures "have the effect of depriving a very precarious population of vital food assistance" and "are neither adapted nor necessary nor proportionate to the objective actually pursued".  It also ruled that the orders were a serious breach of the right to freedom of movement, freedom of assembly and, by posing obstacles to the vital needs of migrants, to the prohibition of inhuman or degrading treatment enshrined in Article 3 ECHR.

Based on an unofficial translation by the ELENA Weekly Legal Update.

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ECRE’s call for states to end transfers to Hungary under Dublin and bilateral arrangements

On 31 March 2017, ECRE published a Legal Note calling states to end transfers to Hungary, in view of the recent developments in the country. The legal note provides a succinct analysis of the most problematic aspects of the Hungarian asylum system and legal framework, and the most egregious human rights violations asylum seekers currently face in the country, including at its external border with Serbia.
Earlier, on 14 March 2017, the ECtHR unanimously found in case Ilias and Ahmed v Hungary that placement in the transit zones without a legal framework constitutes unlawful detention, including due to the lack of remedies to challenge the detention. The Court also found a violation of Article 13 in conjunction with Article 3 due to the lack of effective remedies to complain about the detention conditions in the transit zone, and of Article 3 alone in respect of the applicants’ expulsion to Serbia.
Therefore, ECRE calls on all States not to transfer applicants and beneficiaries of international protection to Hungary under the Dublin Regulation or any bilateral arrangements, and to assume responsibility themselves for the examination of these asylum claims.

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AIDA: Comparative Report on facts, figures and rights implications of distinguishing between refugee status and subsidiary protection.

An AIDA comparative report titled “Refugee rights subsiding? Europe’s two-tier protection regime and its effect on the rights of beneficiaries” was published on 30 March 2017. It discusses the impact of Europe's two-tier protection regime, distinguishing between refugee status and subsidiary protection, on the rights of those granted protection. Differences in the status granted have direct and far-reaching impact on the lives of beneficiaries of international protection, given that they entail a widely different set of rights between refugees and subsidiary protection holders in some countries.

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AIDA: Updated AIDA Report for Greece

The updated AIDA Country Report on Greece has been published on the AIDA website. It provides a thorough analysis of the transformation of the Greek asylum system in light of the closure of the Western Balkan route and the EU-Turkey statement. The report offers detailed statistics and practical insights into the workings of the asylum procedure, reception and detention of asylum seekers, as well as content of international protection (click here for the main findings of the updated report).

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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 Julia Zelvenska (

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

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