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ELENA Weekly Legal Update (EWLU)

17 January 2020
 

Summary


European Court of Human Rights European Union National Developments Council of Europe

European Court of Human Rights


Communicated cases against Greece, Germany, Poland, and Hungary

  • H.A. v Greece (Application No. 59670/19): The applicant, an Ethiopian national, complains that her living conditions on the Samos Island were contrary to Article 3 ECHR. At the time of making an application for international protection the applicant was 7 months pregnant and without adequate shelter. It is also alleged that the State failed to comply with interim measures granted by the Court. 

         Based on an unofficial translation by the EWLU team.

  • H.T. v Greece and Germany (Application No. 13337/19): The applicant, a Syrian national, arrived in Greece and was detained with a view to arrange his return to Turkey. In July 2018, the applicant registered an application for asylum. This process was interrupted after he was arrested in Germany in September 2018. He was subsequently returned to Greece and detained at Athens airport before being transferred to the Reception and Identification Centre on Leros Island. Following his asylum interview, the applicant was identified as vulnerable due to depression and transferred to Leros police station. The applicant objected to this detention. He complains that his return to Greece was incompatible with Article 3 ECHR and that he was unable to access an effective remedy to challenge his return. He also complains that his detention in Greece was in violation of his rights under Articles 3, 5 § 1 and 5 § 4 ECHR.

         Based on an unofficial translation by the EWLU team.

  • A. A. v Poland (Application No. 47888/19): The applicant, a Burundi national arrived in Poland in January 2019. Upon arrival they allegedly presented a fake Swiss ID and were detained in Ketrzyn Guarded Centre for Aliens. The applicant submitted an international protection claim due to violence occurring during unrest in her country of origin. They also claimed to be a victim of wartime rape. A medical evaluation found that the applicant did not suffer from PTSD but confirmed that she was a victim of violence and required psychological treatment. The applicant remains in detention including after the rejection of her asylum claim. The applicant complains that their detention is in violation of Articles 5 § 1 (f) and Article 5 § 4 ECHR.
     
  • Poklikayew v Poland (Application No. 1103/16): The applicant, a Belarusian national, was granted a permanent residence permit after arriving in Poland on an unknown date. In January 2012, an order was made to expel the applicant due to them posing a threat to the security of the State as they were allegedly collaborating with the Belarusian secret service. In March 2012, the applicant was expelled. The applicant complains that their expulsion was ordered despite a number of procedural shortcomings and that he and his lawyer were unable to access parts of his case file in violation of Article 6 ECHR. He also complains under Article 13 in conjunction with Article 6 that he had no access to appeals with suspensive effect.
     
  • Khurram v Hungary (Application No. 37967/18): The applicant is a Pakistani national who arrived in Hungary from Serbia in August 2016. The applicant complains of being subjected to inhuman and degrading treatment contrary to Article 3 ECHR after he was beaten and forcibly escorted back to Serbia by Hungarian authorities. He also complains that the investigation into this matter was superficial and inadequate.

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D and Others v Romania: Lack of access to an effective remedy in case concerning expulsion to Iraq

On 14 January 2020, the European Court of Human Rights (the Court) published its judgment in the case of D and Others v Romania (App no. 75953/16) concerning expulsion to Iraq following a conviction in Romania for the offence of migrant smuggling.

The first applicant, an Iraqi national, was granted refugee status in Germany and married to a Romanian citizen in 1997. The couple resided in Romania and had three children before divorcing in 2009. In 2006, the public prosecutor declared that the first applicant posed a threat to the national security of Romania and was deported to Syria. He returned in 2007 after obtaining false identity documents. Several criminal investigations were launched against him, including, inter alia, charges of facilitating the entry of Iraqi nationals who had allegedly supported or committed terrorist acts. He was sentenced in relation to these charges and was also given a five year ban on the right to remain in Romania. On appeal, the High Court rejected the applicant’s argument that he would be exposed to a risk of treatment contrary to Article 3 ECHR and would violate his right to family life guaranteed by Article 8 ECHR. In 2017, after the applicant’s release from prison, he was placed in administrative detention pending expulsion. In the meantime, his application for asylum was rejected. Administrative detention was ended in March 2019. The applicant complained, inter alia, that his return to Iraq would expose him to a risk of death or ill treatment contrary to Articles 2 and 3 ECHR respectively and that he did not have access to an effective remedy to challenge the findings of the national courts, contrary to Article 13 ECHR in conjunction with Articles 2 and 3.

The Court observed that evidence presented to show a risk of death or ill treatment was general and, as such, did not show evidence of a personal risk to the applicant. Moreover, it held that applicant had a normal relationship with Iraqi authorities: they had issued documentation certifying that he was neither sought for prosecution in Iraq nor linked to terrorist groups, as well as two laissez-passer documents. The Court therefore considered that he had failed to provide evidence of a real risk as a result of his personal circumstances. It concluded that there were no serious or substantiated grounds for believing that he would be subject to a real risk of death or ill treatment contrary to Articles 2 and 3 ECHR.

The Court noted that Article 13 ECHR requires the existence of domestic law or remedy capable of providing appropriate redress. This obligation must be such that the remedy available is effective. Indeed, the applicant’s complaint that his expulsion will have consequences contrary to Articles 2 and 3 must be made subject to careful scrutiny and access to an appeal with suspensive effect. It observed that while the applicant was able to challenge the enforcement of the sentence imposed and make an application for asylum, the available appeals did not have a suspensive effect. As such, the Court found a violation of Article 13 in conjunction with Article 2 and 3 ECHR.

Based on an unofficial translation by the EWLU team.

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R.L. v Belgium: Declaration of friendly settlement following assurances to re-examine asylum application

On 16 January 2020, the European Court of Human Rights published its decision to strike the case of R.L. v Belgium (App no. 15388/18) out of the list after the parties reached a friendly settlement.

The applicant, a Colombian national, claims to have fled from Colombia due to threats by armed groups involved in drug trafficking. He claimed that his asylum application was not subject to a rigorous and careful examination and that an excessive burden of proof was placed on him by asylum authorities and, as such, he was denied the only full remedy available to him required by Article 13 in conjunction with Article 3 ECHR.
The Government have since provided assurances that it would examine a new application for international protection by conducting a rigorous examination of all available evidence in relation to both the general situation in Colombia and the individual circumstances of the applicant. Such an assurance is made to remedy the apparent lack of effective remedy available to the applicant.

The Court decided that it was no longer necessary to examine the application and that the complaint should be struck out of the list of cases.

Based on an unofficial translation by the EWLU team.

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European Union


CJEU: AG Opinion on restricting donations for the benefit of civil society organisations and NGOs

On 14 January 2020, Advocate General Campos Sanchez-Bordona delivered his opinion on action brought against Hungary by the European Commission in the case C-78/18 on the compatibility of the limitations imposed to “civil society organizations” receiving donations from abroad in respect of Article 63 TFEU and Articles 7, 8, and 12 of the Charter.

The case concerned the Hungarian law No LXXVI of 2017, requiring “civil society organizations” receiving donations from abroad to register with the Hungarian authorities where the amount of the donations they have received in a given year reaches a certain threshold. They are also required to indicate that they are in receipt of funding from abroad on its homepage and in its publications; and provide national authorities with specific information, such as donor details in an effort to prevent money laundering and terrorist financing. Considering that the case concerns both the infringements of the Treaty and the Charter, the Advocate General highlighted the necessity to go beyond the traditional separation of the two texts and search for an integrated review criteria of interpretation able to incorporate the fundamental rights of the Charter into the content of the freedoms safeguarded by the Treaties.

The Advocate General notes that the conditions imposed by the Hungarian law represent a restriction of the freedom of movement of capital contrary to Art. 63 TFEU. He also takes the view that the publication of such data is an interference both with the rights relating to the protection of private life and personal data, and with the right to freedom of association, safeguarded by Articles 7, 8 and 12 of the Charter.

He concludes by proposing that the Court of Justice should declare that the Hungarian legislation at issue unduly restricts the free movement of capital, in that it includes provisions which amount to unjustified interference with the fundamental rights of respect for private life, protection of personal data and freedom of association protected by the Charter.

Thank you to Francesca Zalambani, Legal Assistant at ECRE, for assisting us with the summary.

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National Developments


Belgium: Age assessment decision overturned as reasoning was deemed insufficient

The Council of State recently published its judgment on the contested age assessment in the case of Diallo v the Belgian State (Case 246340).

The case concerned a Guinean national declaring himself a refugee in February 2019 and claimed his date of birth to be 4 January 2002. He was subsequently taken into care by the Belgian Guardianship Service as an unaccompanied minor. The Aliens Office later expressed doubts as to the applicant’s age due to his physical appearance and ordered a medical examination which concluded the age of the applicant to be 26.7 years with a deviation of 2.6 years. The applicant contested the decision arguing that the examiner had offered only a general conclusion and it was unclear how the estimated age was determined. For instance, he argued, inter alia, that a hand and wrist examination found he could be aged a minimum of 17.5 years and that while dental examinations suggested a very high chance the applicant was over 18 years old, they were not conclusive. It was argued that the benefit of doubt should therefore have applied in this decision.

The Court noted that it is the overall result that is relevant in age assessment decisions. However, this decision must be consistent and understandable in light of the individual tests carried out that are used to formulate an overall conclusion. The Court highlighted, inter alia, that an age below 18 was not excluded from examinations of the applicant’s hands and wrists and that it was unclear how the estimated age of 26.7 was determined. It therefore found the statement of reason to be inadequate and annulled the contested decision.

Based on an unofficial translation by the EWLU team.

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Germany: Request submitted to CJEU to clarify question on protection of refugee family with different nationalities

The Federal Administrative Court recently referred a question to the Court of Justice of the European Union on the compatibility of German asylum law with Union law regarding protection of refugee families with different nationalities.

The case concerns an unmarried couple. The father is a Syrian national with recognised refugee status and the mother is a Tunisian national with ‘tolerated’ status. The children are Tunisian nationals. An application for family refugee protection derived from the father’s protection status was rejected on the grounds that a parent’s protection status cannot be extended to a child with different citizenship.

The Federal Administrative Court decided to refer this matter to the CJEU to determine whether German law, namely section 26 Asylum Act is compatible with Articles 3 and 23(2) Directive 2011/95.

Thank you to Holger Hoffmann, ELENA coordinator for Germany, for informing the EWLU team about this judgment and for assisting us with writing this summary. Based on an unofficial translation by the EWLU.

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Council of Europe


Expert Council on NGO Law: Thematic study on the criminalisation of NGO action

In December 2019, the Expert Council on NGO Law published a study entitled ‘Using criminal law to restrict the work of NGOs supporting refugees and other migrants in council of Europe member states’.

The paper considers the situation of NGOs carrying out humanitarian assistance and related work in support of refugees and migrants within Council of Europe Member States. The investigation comes in the wake of the increasing use of criminal sanctions against NGOs supporting refugees and expresses concern about the abuse of criminal proceedings against NGOs and human rights defenders. The study comments on a number of areas, including, inter alia: criminalisation and freedom of association; rationales provided to criminalise NGO action; investigations, arrests, and prosecutions; and administrative responses to criminalisation, such as fines imposed.

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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 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 (jzelvenska@ecre.org).






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