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ELENA Weekly Legal Update (EWLU)

18 October 2019
 

Summary


European Court of Human Rights National Developments NGOs

European Court of Human Rights


S.B and S.Z v Russia: Expulsion orders to Tajikistan and Uzbekistan would amount to violation of Article 3 ECHR

On 8 October 2019, the European Court of Human Rights published its ruling on the case of S.B. and S.Z. v Russia (Application Nos. 65122/17 and 13280/18).

The case concerns one applicant from Tajikistan (S.B.) and one applicant from Uzbekistan (S.Z.). Their extradition was sought by their respective national authorities on charges of religiously and politically motivated crimes and dissent. Following the issuance of international arrest warrants, the Russian authorities made the decision to extradite the applicants. S.B and S.Z subsequently complained that they would face a real risk of ill treatment contrary to Article 3 of the Convention if they were to be returned to their countries of origin.

The Court noted the existence of severe punishments for crimes relating to political and religious dissent in Tajikistan and Uzbekistan, and reiterated its position adopted in previous extradition case law. It was therefore satisfied that the Russian authorities should have had substantial grounds to believe that the applicants would face a real risk of ill treatment upon return. It is noted that S.B was deported to Tajikistan on 4 September 2017, while S.Z still remains in Russia. 

The Court held that, by ordering the expulsion of the applicants, the Russian authorities had failed to conduct a rigorous scrutiny of the real risk facing the applicants as a result of their charges. It was therefore satisfied that the applicants fell within the meaning of a vulnerable group facing a real risk of ill treatment and consequently held that the deportation of S.B to Tajikistan amounted to a violation of Article 3 ECHR. The Court also held that the expulsion of S.Z. to Uzbekistan, if carried out, would amount to a violation of Article 3 ECHR.

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New communicated cases against Ukraine, Russia, Azerbaijan, and Switzerland

  • Turdikhojaev v Ukraine (Application No. 72510/12): On 19 June 2012, the applicant, an Uzbekistan national, was arrested on charges relating to his alleged membership in an extremist organisation in Uzbekistan. He was subsequently detained in the Kyiv pre-trial detention centre in a cell allegedly measuring 1.4m2 and his extradition was ordered in January 2013. In April 2013, the applicant was granted asylum in Sweden and the General Prosecutor’s Office of Ukraine was informed that the applicant was therefore to be released. No immediate action was taken. On 6 June 2013, the extradition order was quashed and the applicant was released. It is alleged that the applicant was kept in a metal cage during these final appeal proceedings. The applicant complains that his detention, particularly because of the small size of his cell, amounted to inhuman and degrading treatment under Article 3 ECHR. He also complains that his detention was unlawful under Article 5 § 1 (f) ECHR on the basis that detention proceedings were not carried out with required diligence.

 

  • K. G. v Russia (Application No. 7295/19): The applicant is a Tajik national charged with participating in the Islamic State group (ISIS). On 2 November 2017, he was arrested at a roadside check in Russia after an international warrant was issued and was subsequently detained pending extradition. On 28 September 2018 the applicant’s asylum request was rejected and all appeals dismissed. He complains under Article 3 of the Convention that he would be subject to a real risk of ill treatment if extradited to Tajikistan due to his charges with religiously and politically motivated crimes.

 

  • Jeyhan v Azerbaijan (Application No. 19657/18): The applicant is a Turkish national detained in Azerbaijan pending removal to Turkey as a result of his affiliation with the Gülen movement. The applicant complains that he would be exposed to a real risk of ill-treatment if returned to Turkey contrary to Article 3 of the Convention, with an ancillary claim under Article 13. He also complains that his detention is unlawful under Article 5 § 1 (f) and that no effective procedure exists to challenge this decision, contrary to Article 5 § 4.

 

  • Ghadamian v Switzerland (Application No. 21768/19): The applicant is an Iranian national who legally entered Switzerland in 1969, aged 29. He has two male sons who are Swiss citizens and claims to have no social connections in Iran. The applicant was convicted of numerous crimes between 1999 and 2005 resulting in an order for his expulsion in 2000. After release from prison, he was requested to leave immediately. In 2008, the applicant requested his expulsion order be revoked. This request and two subsequent requests were denied on the basis that he was residing illegally in Switzerland. The applicant complains that his expulsion is contrary to Article 8 of the Convention.

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National Developments 


United Kingdom: Extradition order to Cyprus overruled in light of Article 8 ECHR considerations

On 10 October 2019, the High Court of Justice (Administrative) published its ruling concerning the appeal of an extradition order to Cyprus on the basis that it violated the applicant’s rights under Article 8 of the European Convention of Human Rights (ECHR).

An expulsion order was issued on 20 December 2018 after the applicant is alleged to have committed the offence of obtaining credit under false pretences in Cyprus. The applicant lived with his ex-partner between 2006 and 2017 and had five children who suffer from various genetic, behavioural, and developmental conditions. In June 2018 the applicant was clinically assessed to be suffering from moderate anxiety and depression, and his ex-partner was assessed to suffer from moderate depression.

The appeal of the extradition order was made on the basis that, inter alia, the applicant’s extradition would impact the mental health of the applicant and his ex-partner. In particular, it was argued that the applicant’s extradition would impact the ex-partner’s ability to provide the necessary care for their children, who have diverse and complex medical needs. It was noted that while the couple had separated and the applicant was no longer a primary care giver, he was still actively involved in his children’s’ lives. The applicant therefore complained that the District Judge had erred in their assessment of the competing public interest in extradition and his right to private and family by failing to consider the potential impact of the extradition on the children.

The Court noted that central to this issue were the needs of the children, who had been identified in this case as particularly vulnerable. Moreover, it expressed concern that the practical ability for the family to cope in the event of extradition had been considerably underestimated. Based on the exceptional needs of the children, the practical difficulties to provide care, the applicant’s supportive role in the lives of the children, and the potential impact on his and his ex-partner’s mental health, the Court held that the public interest in the extradition was outweighed by the applicant’s Article 8 ECHR rights. Indeed, the Court reasoned that the applicant’s extradition would be “highly deleterious” for the family as a whole.

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United Kingdom: Applicant with international protection must be provided with appropriate housing under s.193 Housing Act 1996

On 11 October 2019, the High Court of Justice (Administrative) published its judgment concerning the London Borough of Waltham Forest’s (LBWF) unlawful breach of its statutory duty to secure suitable accommodation under section 193 of the Housing Act 1996.

The applicant arrived in the UK in 2012 after fleeing human trafficking for the purpose of sexual exploitation. She was pregnant as a result of forced sexual intercourse and was granted refugee status in 2014. An application to secure suitable accommodation was later made on the basis that she was homeless.

The applicant was offered accommodation before being served a no fault eviction notice. There is no evidence that the applicant was provided with an offer letter detailing the LBWF’s statutory obligations at this time. On 25 August 2017, the applicant and her daughter were offered accommodation in Tottenham where it was apparent that the communal grounds of the flat were used as a brothel. The Refugee Council and the applicant’s daughter’s school both expressed concern to the LBWF that sexual activity was visible from the flat. The applicant complained that the LBWF had not fulfilled its statutory duty by failing to provide an offer letter and by failing to conduct an enquiry into the suitability of the Tottenham property.

Firstly, the Court concluded that the LBWF had failed to comply with its statutory duty as there was no evidence that the letter providing notification in accordance with s.193 Housing Act 1996 was ever sent. Secondly, it noted that proper due diligence should have alerted the LBWF to the evidently unsuitable conditions in the Tottenham accommodation. The LBWF had failed to conduct an assessment of the accommodation which was clearly unsuitable, particularly for a child and a survivor of human trafficking and sexual exploitation. It therefore held that the LBWF had acted unlawfully in breach of its duty under s.193 Housing Act 1996 and was not discharged of its obligation to provide suitable accommodation.

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Italy: Court must provide details of preliminary assessment of real risk present in countries of origin in return decisions

On 10 October 2019, the first civil section of the Italian Supreme Court published its ruling compelling first and second instance trial judges to cite the country of origin information examined in a cases denying subsidiary protection.

The applicant, a Gambian citizen, appealed a decision denying his subsidiary protection. On 2 September 2019, the Court rejected the applicant’s appeal on the grounds that it did not meet the requirements for recognition of international protection status. In particular, the Court of Appeal found the applicant failed on the credibility test and the information provided did not sufficiently detail the possibility of serious harm in the event of his return to his country of origin.

Regarding the presence of indiscriminate violence in situations of armed conflict in the country of origin, the Court of Appeal found that there the general situation in the Gambia was not comparable to the examples of violence in more dangerous contexts. The applicant therefore complained that the Court had failed in its preliminary assessment of the real risk facing the applicant if he were to be returned to the Gambia.

The Supreme Court held that when the judge is assessing this matter, they must verify ex officio the situation in the country of origin in light of accurate and up to date information available at the time of making the decision. The Court must then cite the consulted sources in the judgment to allow the applicant to review how the decision was reached. The Supreme Court therefore annulled the decision and returned the case to the Court of Appeal for a re-examination of the merits.

Thank you to Francesca Zalambani, Legal Assistant at ECRE, for assisting us with the summary. Based on an unofficial translation by the EWLU team.

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Slovenia: Constitutional court annuls provision on suspension of asylum procedure*

On 14 October 2019, the Slovenian Constitutional Court published its judgment finding that Article 10b of the Aliens Act, setting out measures of temporary suspension of the right to asylum, was contrary to the principle of non-refoulement.

The provision, introduced in 2017 as part of amendments to the Aliens Act, allowed for the suspension of the right to asylum upon parliamentary order in cases where migration poses “a threat to public order and internal safety in the Republic of Slovenia”. Though never activated to date, the measures would require the Police to reject all intentions to apply for asylum as inadmissible as long as the persons wishing to apply entered Slovenia from a neighbouring EU Member State in which there are no systemic deficiencies of asylum procedure and reception conditions which could lead to torture, inhuman, or degrading treatment. The Police would then be able to return the persons back to the neighbouring countries in question.

The Constitutional Court annulled the provision on the ground that it was contrary to the principle of non-refoulement, enshrined in Article 18 of the Constitution, insofar as the measures would not guarantee individuals a fair and efficient process determining whether their removal would amount to torture, inhuman or degrading treatment. The Court also highlighted that the determination of “a threat to public order and internal safety in the Republic of Slovenia” under the Aliens Act did not imply the existence of a state of emergency pursuant to Article 92 of the Constitution, which could justify the limitation of certain rights.

*This information was first published by AIDA, managed by ECRE.

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NGOs


CSDM: Study on the Protection of Family Unity in Dublin Procedures

On 14 October 2019, Centre Suisse pour la Défense des Droits des Migrants (CSDM) published a study by Prof. Francesco Maiani entitled ‘The Protection of Family Unity in Dublin Procedures’.

The report primarily discusses the protection of family unity in relation to proceedings under Dublin III Regulations in the context of current practice by Swiss authorities, but also aims to provide guidance for European legal practitioners. It outlines that the Dublin III Regulation has the potential to afford effective protection to families if properly interpreted, particularly in light of the fact that respect for family life must be a “primary consideration” in Dublin procedures.

As well as providing an overview of the different institutional and interpretative elements of the Dublin Regulation, the report focuses on two key areas. Firstly, the report details the existing protection to family rights under the Dublin Regulation as well as the specific challenges that families face in such procedures, such as the unreasonable burden to prove the existence of family ties. Secondly, the report outlines the need for the increased use of discretion to avoid situations where families are increasingly separated as a result of a strict reading of the law. This increased use of discretion aims to provide an additional safeguard to guarantee protection of family life.

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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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