European Court of Human Rights
U.N. v. Russia (no. 14348/15), [Articles 3, 5 § 4], 26 July 2016
The Third Section of the European Court of Human Rights has given its ruling in the case of U.N. v. Russia (no. 14348/15).
The case relates to a Kyrgyzstan national and ethnic Uzbek, who currently lives in Russia. The applicant arrived in Russia after the mass disorders and inter-ethnic clashes in Kyrgyzstan in 2010. Wanted by the Kyrgyz authorities on charges related to these clashes, including the kidnapping and murder of two law-enforcement officers, he was arrested in Russia in January 2014 and placed in detention. His detention extended on a number of occasions and he was released in July 2015. Following an unsuccessful appeal against the extradition to Kyrgyzstan and a rejection of his asylum application, U.N complained to the ECtHR. He claimed violations of his rights under Articles 3 and 5 § 4 ECHR.
The Court reiterated that it had previously held that there were substantial grounds for believing that the applicants would face a real risk of exposure to treatment proscribed by Article 3 ECHR if returned to Kyrgyzstan (e.g. Khamrakulov, Mamadaliyev, Kadirzhano and Mamashev, Gayratbek Saliyev, and Makhmudzhan Ergashev). It hereby referred to the attested widespread and routine use of torture and other ill-treatment by law-enforcement agencies in the southern part of Kyrgyzstan in respect of members of the Uzbek community, the impunity of law‑enforcement officers, and the absence of sufficient safeguards for the applicants in the requesting country. As such, the diplomatic assurances and monitoring mechanism relied on by the Russia government were insufficient. In addition, the applicant’s criminal conduct did not overturn the absolute prohibition of ill-treatment under Article 3 ECHR. As the applicant belonged to a vulnerable group, the Court found that he would face a real risk of treatment proscribed by Article 3 ECHR, if returned to Kyrgyzstan.
Furthermore, the Court reiterated that it had previously found a violation of the ECHR where an applicant was unable to bring about a judicial review during a fixed period of detention. This would also be the case if changes in the fixed period of detention would directly affect its lawfulness. In the present case, the applicant was unable to apply for a judicial review of the lawfulness of his detention for almost four months despite the circumstances that justified the review. The Court found a violation of Article 5 § 4 ECHR.
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Netherlands: Dublin transfer of vulnerable asylum seekers to Italy without individual guarantees regarding their reception conditions in breach of Article 3 ECHR
On 18 July 2016, the District Court of The Hague ruled upon the requirement of individual guarantees regarding the Dublin transfers of vulnerable asylum seekers to Italy.
The asylum application lodged on behalf of a mother and her underage daughter was rejected in the Netherlands because Italy was deemed responsible for the examination of their asylum application. Relying on the specific requirements following from the Tarakhel v Switzerland (no. 29217/12), the applicant contends that the Dublin transfer to Italy would be in breach of Article 3 ECHR. She submitted that the State Secretary of Security and Justice could not have relied on the Circular Letter: Guarantees for vulnerable cases; family groups with minors of 8 June 2015 because this Circular letter did not provide for individual guarantees.
In its letter of 23 June 2016, the State Secretary argued that he was not expecting individual guarantees additional to the Circular letter and would only discontinue the Dublin transfer if the Italian authorities inform them about the lack of specialised reception facilities. According to the State Secretary, this practice is in accordance with several judgments of the Council of State.
The District Court, however, considers that the State Secretary is obliged to request individual guarantees from the Italian authorities when there is a clear reason to doubt the availability of appropriate reception facilities. In its letter, the State Secretary informed the Court that 64 vulnerable asylum seekers had been transferred to Italy from the Netherlands between 20 May 2015 and 21 June 2016. The aforementioned Circular however sets out that Italy has only 85 available reception facilities. The State Secretary should have requested individual guarantees in accordance with the Tarakhel judgment because it is highly unlikely that there will be enough facilities available. It follows that, were the applicant to be returned to Italy without having first obtained individual guarantees from the Italian authorities that they would be taken charge of in a manner adapted to the age of the child and the family would be kept together, there would be a violation of Article 3 ECHR.
The Court obliges the State Secretary to reconsider the decision in light of this judgment.
The ELENA Weekly Legal Update would like to thank Flip Schüller, lawyer at Prakken d’Oliveira, for bringing this to our attention. Based on an unofficial translation by the ELENA Weekly Legal Update.
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Slovakia: Suspension of Dublin returns to Hungary
On 21 July 2016, the Ministry of Interior of Slovakia confirmed that all Dublin returns from Slovakia to Hungary have been suspended as of 15 June 2016. The suspension was based on the Hungarian government’s decision not to accept Dublin requests. According to the Human Rights League, the last Dublin return has been exercised on 9 May 2016.
The ELENA Weekly Legal Update would like to thank Zuzana Števulová, the ELENA coordinator for Slovakia, for bringing this to our attention.
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UK: European Union Committee report on accompanied migrant children in the EU
On 26 July 2016, the European Union Committee of the House of Lords published the report Children in crisis: unaccompanied migrant children in the EU. The report addresses the problems currently faced by unaccompanied migrant children in the EU, the practical consequences of those problems, and provides a number of recommendations with regards to the appropriate response at national and EU levels.
The report concludes that, collectively, EU Member States are fundamentally failing to comply with their obligations under EU and international law to receive and protect children in a manner that recognises their specific vulnerability. It highlights that unaccompanied migrant children have become increasingly vulnerable to smugglers and traffickers. The EU Committee also states that in most instances, unaccompanied migrant children are treated with suspicion, which often results in age disputes and as a result, these children distrust the authorities and resort to drastic measures to avoid cooperation. It also reiterates the lack of adequate legal aid and information as well as reception conditions suitable for children. The Committee urges the EU to develop durable solutions adhering to the best interest of the child and a system of independent guardians, who will be appointed as soon as possible to act in the child’s best interest.
ECRE submitted written evidence to this inquiry, available here. Daphné Bouteillet-Paquet, Senior Legal Officer at ECRE, and Elona Bokski, Senior Project Manager at ECRE provided oral evidence, available here.
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GISTI: Report on the situation in the hotspots in Lesbos and Chios, Greece, in the aftermath of the EU-Turkey Deal
The Groupe d’information et de soutien des immigrés (GISTI) published the report entitled Accord UE-Turquie, la grande imposture – Rapport de mission dans les hotspots grecs de Lesbos et Chios. Based on GISTI’s fact-finding mission to the Greek hotspots in Lesbos and Chios in May 2016.
GISTI highlights the poor reception conditions in the hotspots, such as the lack of adequate accommodation, food and healthcare facilities. The report further addresses the systemic breaches of the guarantees safeguarded by European Union law.
Whereas the Greek authorities are deemed responsible for the management of the reception of the asylum seekers, the burden on Greece as a result of the recent economic crisis, Mediterranean migration context, and the EU-Turkey Deal should not be neglected. The report therefore considers the EU Member States responsible for the ill-treatment of asylum seekers in the hotspots in Lesbos and Chios. GISTI calls upon the annulment of the EU-Turkey deal and an in-depth review of the Dublin III Regulation.
Based on an unofficial translation by the ELENA Weekly Legal Update.
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HRW: Submission to UN Committee on the Elimination of Racial Discrimination concerning Greece
Human Rights Watch (HRW) submitted its memorandum to the UN Committee on the Elimination of Racial Discrimination regarding the Committee’s upcoming review of Greece. In particular, HRW addresses the inconsistency of the treatment of migrants and asylum seekers in Greece with the Convention on the Elimination of All Forms of Racial Discrimination.
In recent years, HRW has repeatedly monitored the ill-treatment suffered by refugees, asylum seekers, migrants, and, in particular, unaccompanied children in Greece. To this end, HRW has interviewed thousands asylum seekers, who faced appalling reception and detention conditions. It further notes the deterioration of the asylum and reception system as a direct result of the high number of arriving asylum seekers and the border closures with several countries. In this context, the memorandum devotes particular attention to the abusive returns under the EU-Turkey Agreement, the reception and detention conditions in the hotspots on the Islands, and the detention of unaccompanied migrant children.
HRW, inter alia, proposes the following recommendations: the suspension of returns under the EU-Turkey agreement, the creation of open camps instead of hotspot facilities, the abstention from detaining vulnerable groups, the establishment of alternatives to detention, the development of adequate reception conditions and provision of services, and the expedition of asylum procedures with regards families and vulnerable groups.
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Hungarian Helsinki Committee: Report on the naturalisation of refugees and stateless persons in Hungary
The Hungarian Helsinki Committee (HHC) has published the report entitled The Black Box of Nationality: The Naturalisation of Refugees and Stateless Persons in Hungary written by Gábor Gyulai, the Refugee Programme Director at HHC.
The report provides an overview of Hungary’s international obligations to facilitate refugees’ and stateless persons’ access to naturalisation. It further analyses to what extent EU law and the European Court of Human Rights have developed standards applicable to these naturalisation procedures. At the moment, Hungary falls short of fulfilling its international and European obligations relevant to the naturalisation of refugees and stateless persons. This is demonstrated by a low number of refugees and stateless persons, who have managed to naturalise in Hungary in the past five years.
Hungary, inter alia, fails to ensure that persons with a stateless status establish a domicile, to reduce the costs associated with the naturalisation of refugees and stateless persons, and to allow for preferential treatment for refugees or stateless persons. In addition, the Hungarian procedural framework for naturalisation lacks transparency and procedural safeguards.
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