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ELENA Weekly Legal Update (EWLU)

16 December 2016
 

The ELENA Weekly Legal Update would like to thank you for your support to the EWLU and for providing us with information in 2016. We will be taking a break and will resume on 13 January 2017. Warmest season’s greetings, ECRE and the ELENA network

Summary


European Court of Human Rights European Union United Nations National Developments ECRE

European Court of Human Rights


Paposhvili v. Belgium (no. 41738/10, GC) [Articles 3 and 8], 13 December 2016

The Grand Chamber of the ECtHR gave its ruling in Paposhvili v. Belgium on the 13th December. The referral to the Grand Chamber came after the 5th Section of the Court found that the removal of a Georgian national suffering from chronic lymphocytic leukaemia and tuberculosis to his country of origin would not encroach upon his Article 3 and 8 rights under the ECHR.

The case before the Grand Chamber was pursued by the applicant’s family since the applicant had died of his illnesses in June 2016. Recalling that since N. v. United Kingdom in only very exceptional cases will Article 3 be breached in removal cases of seriously ill persons the Court finds that the definition of “very exceptional” needs to be clarified.The Court determines that Article 3 is triggered in these cases where “the absence of appropriate treatment in the receiving country or the lack of access to such treatment, exposes the individual to a serious, rapid and irreversible decline in his or her state of health resulting in intense suffering or to a significant reduction in life expectancy”. In ensuring that Article 3 is respected the Court goes onto highlight that appropriate procedures need to be put in place which allows the individual to adduce evidence of the potential risk upon return to the country of origin and for the State to examine the foreseeable consequences of return with regard to both the general situation and the individual’s circumstances. In addition the authorities should assess whether the care generally available in the receiving State is sufficient and appropriate in practice for the treatment of the applicant’s illness. A factor in this assessment will be whether the individual will actually have access to this care and these facilities in the receiving State. The Court finds that where serious doubts persist concerning removal the State must obtain Tarakhel-like guarantees that the individual will actually receive appropriate treatment. Therefore, the Court found that the Belgian Aliens Office had not examined the applicant’s medical conditions in light of Article 3 in the context of his regularisation of status nor his proposed removal and as a result violated Article 3 of the Convention.
 
With regards to Article 8 the Chamber emphasises the positive obligations on Belgium, especially in light of the facts of the case. Much like the lack of assessment on Article 3 the authorities did not examine the degree of the applicant’s dependence on his family or the impact of removal on his family life. The Court thus found Article 8 to be additionally breached.

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Khlaifia v. Italy (no. 16483/12, GC) [Articles 5(1), 5(2), 5(4) 3, 13 and 4 Protocol No. 4], 15 December 2016

On the 15th December the Grand Chamber of the ECtHR gave its ruling in the case of Khlaifia v. Italy that concerns the holding, in a reception centre on the island of Lampedusa then on ships in Sicily, of irregular migrants who arrived in Italy in 2011 following the “Arab Spring” events in their country, and their subsequent removal to Tunisia. The case was referred to the Grand Chamber at the request of the Italian Government following the judgment of 2nd Section of the Court finding violations of Articles 5, Article 3, Article 4 of Protocol No. 4 and Article 13 of the Convention.
                       
The Grand Chamber confirms that Italy breached Article 5(1) of the Convention as the provisions applying to the detention of irregular migrants were lacking in precision. It indicates that legislative ambiguity has given rise to numerous situations of de facto deprivation of liberty and the fact that placement in Contrada Imbriacola first reception centre (CSPA) is not subject to judicial supervision cannot, even in the context of a migration crisis, be compatible with the aim of Article 5 of the Convention: to ensure that no one should be deprived of his or her liberty in an arbitrary fashion. The Court also finds a violation of Article 5(2) as the applicants had not been duly informed of the reasons for deprivation of their liberty. Finally, the Court finds a violation of Article 5(4) as there was no remedy in the Italian legal system whereby the applicants could obtain a judicial decision on the lawfulness of their deprivation of liberty.
 
The Court finds that there has been no violation of Article 3 of the Convention in respect of the conditions of detention in either the CSPA or on board the ships, since the treatment the applicants complained of did not exceed the level of severity required for it to fall within the provision. It also holds that there has been a violation of Article 13 taken together with Article 3 of the Convention as there was no effective remedy in respect of the complaint concerning the applicants’ conditions of detention.
 
The Court holds that there is no violation of Article 4 of Protocol No. 4 in the present case. It reiterates that the word “expulsion” should interpreted broadly and finds that the removal of the applicants from Italy to Tunisia against their will constitutes an “expulsion” within the meaning of Article 4 of Protocol No. 4. However, the Court holds that the applicants underwent identification on two occasions, their nationality was established, and they were afforded a genuine and effective possibility of submitting arguments against their expulsion. The virtually simultaneous removal of the three applicants may be explained as the outcome of a series of individual refusal-of-entry orders, and does not lead to the conclusion that their expulsion was “collective” within the meaning of Article 4 of Protocol No. 4 to the Convention, according to the Court.
 
Finally, the Court finds that there is no violation of Article 13 of the Convention taken together with Article 4 of Protocol No. 4 as the lack of suspensive effect of a removal decision does not in itself constitute a violation of Article 13 of the Convention where, as in the present case, the applicants do not allege that there is a real risk of a violation of the rights guaranteed by Articles 2 or 3 in the destination country.
 
Please find the AIRE Centre and ECRE’s intervention here.

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Communicated cases

 

S.Z. v. Greece (no. 66702/13), communicated on 7 November 2016

On 7 November 2016, the European Court of Human Rights communicated the case of S.Z. v. Greece (no. 66702/13), which relates to the detention of a Syrian national in Greece.
 
The applicant submitted an application to the European Court of Human Rights complaining that his detention was in violation of Articles 3, 5(1) and 5(4) ECHR have been violated.

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A.A. and Others v. Sweden (no. 61559/16), communicated on 8 November 2016

On 8 November 2016, the European Court of Human Rights communicated the case of A.A. and Others v. Sweden (no. 61559/16). The case relates to the deportation of 5 female Afghan nationals from Sweden to Afghanistan following the rejection of their asylum applications.
 
The applicants complain that if they were to be deported to Afghanistan, where they lack a male network, they would risk being subjected to treatment in breach of Articles 2 or 3 of the Convention.

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K.F. v. Russia (no. 39552/16), communicated on 10 November 2016

On 10 November 2016, the European Court of Human Rights communicated the case of K.F. v. Russia (no. 39552/16), which relates to the extradition of a Tajik national from Russia to Tajikistan contrary to the interim measure indicated under Rule 39 of the Court and his detention in Russia.
 
The applicant’s representative complains inter alia about the applicant’s poor detention conditions, excessive length of detention and absence of effective remedies in respect of the complaint concerning the conditions of detention in Russia. She also complains that the applicant runs a real risk of being ill-treated in detention as a result of his transfer to Tajikistan in violation of Articles 2 and 3 ECHR.

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European Union


CJEU:  Case C. K. and Others, C-578/16), request  for a preliminary ruling from the Supreme Court of Republic Slovenia

The Supreme Court of Republic Slovenia has referred a request for preliminary ruling to the CJEU on the interpretation to be given to Articles 3 and 17 of the Dublin III Regulation in the case that concerns the transfer to Croatia under the Dublin III Regulation.

The Supreme Court has referred four questions to the Court of Justice of EU:

  1. Is the interpretation of rules concerning application of discretionary clause from Article 17(1) of Dublin III Regulation, considering the nature of this provision, in the final competence of the court of the Member State, i.e., does it absolve the court, where there is no legal remedy against its decision, to submit the request to the CJEU on the basis of Article 267(3) of the Treaty on the Functioning of the European Union?
  2. Is assessment of circumstances from Article 3(2) of the Dublin III Regulation (in cases such as the case presented) sufficient to meet the requirements from Article 4 and Article 19(2) of The Charter of Fundamental Rights of the European Union in conjunction with Article 3 of the European Convention on Human Rights and Fundamental Freedoms and Article 33 of the Geneva Convention?
  3. Is Article 17(1) of the Dublin III Regulation to be interpreted as meaning that the application of discretionary clause by a Member State, in order to provide efficient protection against infringement of the right from Article 4 of The Charter of Fundamental Rights of the European Union in cases such as the case presented, is obligatory and that it inhibits the transfer of an applicant for international protection to the responsible Member State, that has accepted its responsibility in accordance with this Regulation?
  4. Does the discretionary clause from Article 17(1) of the Dublin III Regulation provide grounds for the applicant for international protection, or another person subject to a transfer procedure pursuant to this Regulation, to claim its application, which has to be assessed by the competent administrative bodies or courts of the Member State, or are the stated state authorities and courts of the Member State obliged to assess the cited circumstances ex officio?

The ELENA Weekly Legal Update would like to thank Grusa Matevzic, Miha Nabergoj and Zoja Bajzelj for their translations.

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FRA publishes report on the scope of the principle of non-refoulement in contemporary border management and Guidance on how to reduce the risk of refoulement in external border management when working in or together with third countries

The European Union Agency for Fundamental Rights (FRA) has published a report on the scope of the principle of non-refoulement in contemporary border management. As EU Member States’ contemporary border control activities raise difficult questions related to their non-refoulement obligations, this report scrutinises specific scenarios – within third countries, on the high seas, and at the EU’s borders – regarding which views differ as to whether they constitute refoulement. The report presents each scenario and the applicable legal framework, briefly sketches current practices, and outlines arguments that speak against, and in favour of, finding a violation of non-refoulement. The FRA also published concrete guidance on how to reduce the risk of refoulement in external border management when working in or together with third countries.

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United Nations


UNHCR issues Guidelines on International Protection related to situations of armed conflict and violence under Article 1A(2) of the 1951 Refugee Convention

UNHCR has issued Guidelines on International Protection related to situations of armed conflict and violence under Article 1A(2) of the 1951 Refugee Convention.
 
The purpose of the Guidelines is to make available substantive and procedural guidance for the assessment of claims for refugee status involving situations of armed conflict and violence, and to promote consistency in the application of the 1951 Convention and regional refugee definitions. More specifically, the document provides guidance in relation to the inclusion aspects of the refugee definitions in Article 1A(2) of the 1951 Convention and its 1967 Protocol, Article I(2) of the 1969 OAU Convention and Conclusion III(3) of the 1984 Cartagena Declaration.

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National Developments


Belgium: Belgian Council for Alien Law Litigation has referred preliminary questions to CJEU on application and interpretation Article 25(1) Visa Code and has referred question to the Constitutional Court

The Belgian Council for Alien Law Litigation has referred the following questions to the Court of Justice on the application and interpretation to be given to Article 25(1) of the Visa Code:

  1. Do  “international obligations” as specified in Article 25(1) (a) of the Visa Code, concern the set of rights guaranteed under the EU Charter, in particular those guaranteed under Articles 4 and 18, and do they also cover the obligations under the ECHR and Article 33 Refugee Convention, which the Member States are bound by?
  2. A. In view of the answer to question 1, is Article 25(1)(a) of the Visa Code to be interpreted in the sense that, subject to the margin of appreciation the Member State has in the case,  that the requested visa Member State, is obliged to issue the requested visa where a violation of Article 4 and/or 18 Charter rights or another international obligation is proven?
    B. Does the existence of ties between the person requesting the visa and the requested Member State (for example family links, host families, sponsors etc) have any consequence on the answer to this question?
The Council for Alien Law Litigation also referred a question to the Constitutional Court:

Does Article 39/82 para 1 and 4 of the Law of 15 December 1980 violate Articles 10, 11 and 13 of the Constitution read either in conjunction or not in conjunction with Article 47 of the Charter in so far as the suspension request for ‘extremely urgent necessity’ can only be introduced by third country nationals who are subject to a return decision or refoulement where the execution is imminent and not by third country nationals who are the subject of another act of the administrative authority which is susceptible to being annulled by virtue of Article 39/2 para 2 of the 1980 Law.
 
Based on an unofficial translation by the ELENA Weekly Legal Update.
 
The ELENA Weekly Legal Update would like to thank the ELENA national coordinator for Belgium, Tristan Wibault, for providing us with this information.
 
Please see EDAL case summary for more information, available here.

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UK: Victims of domestic violence can form particular social group according to Upper Tribunal

In a case concerning an Albanian woman who was a victim of domestic violence and has applied for asylum in the UK, the Upper Tribunal has ruled the following:

  1. The appellant could form a particular social group in two ways. First, as she is a woman. Second, as she is a woman who has been victim of domestic violence. It should be emphasized that being a refugee and being a victim of domestic violence are not mutually exclusive. Moreover, the definition of a particular social group is as follows: the group has a distinct identity because it is perceived as different by the surrounding society. Victims who left would be “branded for life” as someone who has dishonoured her community are a particular social group.
  2. The appellant has been a victim of persecution. It is not deemed necessary to decide whether every sexual act in the marriage was consensual. As the appellant was repeatedly beaten in different ways on different occasions, the ill-treatment was sufficiently severe as to amount to persecution.

The Upper Tribunal has adjourned the hearing for final determination as there is still missing evidence as to decide whether the appellant runs a risk of persecution or other serious ill-treatment in the event of her return to Tirana as a victim of domestic violence. In particular, two uncertainties remain. First, there might be no effective protection in Tirana, Albania. A lone woman with a child is unusual in Tirana and attracts attention, so there is possibility that appellant is being identified to her former husband. Second, it might be wrong to rely on case MK (Lesbians) Albania to support the argument that a woman could live on her own in Tirana, since it has been overturned by the Court of Appeal. The Upper Tribunal has asked the parties to submit further evidence.

The ELENA Weekly Legal Update would like to thank S. Chelvan for providing us with this information.

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ECRE


ECRE publishes report on the implementation of the hotspots in Italy and Greece

ECRE has published its report on the implementation of the hotspots in Italy and Greece. The EU ‘hotspot approach’ was designed to ensure operational support to Member States facing disproportionate migratory pressure. However, one year since the first hotspots was set up and half a year since the entry into force of the EU Turkey Statement, research reveals that the pressure in these countries is growing and the challenges in accessing protection are multiplying.

Many newly arrived migrants have been trapped in prolonged detention, including vulnerable persons, such as pregnant women and small children. The reception conditions are problematic and overcrowding and different treatment of people based on nationality create tensions. Unaccompanied minors are still detained in the hotspots in the absence of proper guardianship systems and specialised shelters. Further there are serious gaps of information, and the hotspots need more interpreters and cultural mediators.

The study is part of a project led by the Dutch Council for Refugees, in partnership with ECRE, the Italian Council for Refugees (CIR), the Greek Council for Refugees (GCR) and ProAsyl that aims to support monitoring of hotspots in Greece and Italy and the strengthening of legal assistance provision by local NGOs.

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EDAL blog: Detention of vulnerable persons in international protection proceedings in Poland

Karolina Rusiłowicz of the Helsinki Foundation for Human Rights has written a new EDAL blog on the detention of vulnerable persons in international protection proceedings in Poland.
                                           
With this blog the author aims to show that that a system of self-identification of vulnerable persons in the international protection proceedings, which was applicable in Poland before the transposition of the recast Procedures and Reception Directives, can give rise to breaches of Article 5 of the ECHR. The blog also determines the possible impact of the post-transposition legal framework in Poland on detention practices for those who are vulnerable.
 
By analysing domestic jurisprudence, the author demonstrates inter alia that the courts deciding on detention refrain from calling experts to give evidence, although in order establish whether an applicant is a vulnerable person specific knowledge is needed. Moreover, the author determines that even if there are psychologic or psychiatric expert opinions available in the case, they are hardly ever taken into account.

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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 (jzelvenska@ecre.org).
 


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