ELENA Weekly Legal Update - 24 April 2015
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24 April 2015



Council of Europe

Council of Europe

ECtHR: Tatar v Switzerland (Application no. 65692/12) [Articles 2 and 3], 14 April 2015  

In this case, the applicant, a Turkish national, was granted asylum in Switzerland in 1994, and subsequently received a residence permit. His asylum status was withdrawn in 2009, and residence permit revoked a year later after he had been sentenced for a serious crime, having killed his wife in a dispute in 2001. His imprisonment for the crime in question had been postponed in order to receive continuous psychiatric care following a diagnosis of a recurrent depressive disorder with psychotic symptoms. The applicant claimed that if he were to be returned to Turkey he would be at risk of death or ill-treatment contrary to Article 2 and 3 respectively of the European Convention on Human Rights  due to the unavailability in Turkey of the necessary care for his medical conditions, and an alleged risk of being murdered by his wife’s relatives.

While the Court acknowledged that the deterioration of the applicant’s long-term mental illness could lead, in principle, to suffering that fell within the scope of Article 3, the Court did not find that there was a sufficient real risk that the applicant’s removal in these circumstances would be contrary to the standards of Article 3, particularly noting that the infliction of harm was not the direct responsibility of the Contracting State, that his illness did not at present reach the high threshold needed for Article 3, and that suitable medical facilities were available in Turkey. The Court reiterated that the fact that the applicant’s life expectancy would be significantly reduced if returned to Turkey from Switzerland is not sufficient in itself to give rise to a breach of Article 3.

Regarding the applicant’s claim that there was a blood feud against him, and the risk of torture or inhuman treatment by State agents upon return to Turkey because of his political activities in the past, the Court said that these threats contrary to Article 2 or 3 of the Convention were not substantiated, and noted that relatives of his wife had travelled in the country without any reported incident and observed that the applicant had not been politically active for more than 20 years. It was emphasised that since Turkey is a signatory state of the Convention, if any issues concerning specific future violations of the Convention arrived, than the applicant could address such complaints against it.

The judgment contained a partially dissenting opinion from Judge Lemmens, who disagreed with the majority’s conclusion that Article 3 of the Convention would not be violated if the applicant were expelled to Turkey, due to arriving at a different understanding of the risk arising from the long-term mental illness caused by the applicant suffering from severe schizophrenia. The judge considered that the applicant’s illness rendered him ‘extremely vulnerable’ and thus in need of ‘special protection’. With the applicant’s extended absence from his country of origin, the minimal concern by the Swiss authorities for the medical assistance to be effectively received by the applicant on his return to Turkey, and the applicant’s condition, the judge opined that the expulsion would leave the applicant exposed to a real risk of being subjected to inhuman treatment that amounted to a violation of Article 3.

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ECtHR: Khamrakulov v. Russia (no. 68894/13), [Articles 3 and 5 § 4], 16 April 2015

The European Court of Human Rights (ECtHR) found that extraditing a Kyrgyz national of Uzbek ethnic origin from Russia to Kyrgyzstan would give rise to inhumane and degrading treatment prohibited by Article 3 of the European Convention on Human Rights (ECHR). It was also found that the repeated delays by the Russian authorities in hearing the applicant’s appeals against his detention in Russia constituted a violation of his Article 5 § 4 rights to a speedy judicial decision on the lawfulness of the applicant’s detention between January 2013 and January 2014.

The applicant had left Kyrgyzstan in September 2010, applying for refugee status in March 2013. The proceedings for refugee status were concluded in 2014, with the Moscow City Court upholding previous decisions to refuse the application for refugee status. The Kyrgyz authorities charged the applicant in February 2011in his absence of participating in the mass disorder and ethnic clashes that took place in the country in June 2010. Examining international reports from UN bodies and reputable NGOs evidencing systematic and indiscriminate ill-treatment of detainees in Kyrgyzstan, the Court observed that individuals of Uzbek origin in Kyrgyzstan constitute a vulnerable group and run a real risk of inhumane treatment. Secondly, and with regards to the authority’s duty to adequately assess the applicant’s claim of ill-treatment, the Court held that there had been no attempt to evaluate the risks of an Article 3 breach in the eventuality of extradition or in the asylum proceedings. The Court consequently found a violation of Article 3 if the applicant were sent back.

Reiterating that Article 5 § 4 ECHR proclaims the right to a speedy judicial decision concerning the lawfulness of detention, the Court said that the absence of any explanation from the Russian authorities that justified the delays between the applicant’s appeals against the detention orders and their subsequent extension, meant that the delays could only be seen as being excessively long, and thus violated the Article 5 § 4 requirement of “speediness”.

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ECtHR: Grand Chamber referral: Paposhvili v. Belgium (no. 41738/10) [Articles 2, 3 and 8], 20 April 2015

Upon a referral request by the applicant, Paposhvili v. Belgium  has been accepted for consideration by the Grand Chamber of the European Court of Human Rights. The judgment concerned the decision to return a Georgian national from Belgium to Georgia and ban him from re-entering Belgian territory. Mr Paposhvili, relying on Article 2 (right to life) and 3 (prohibition of torture and inhuman and degrading treatment) ECHR, alleges that his deportation to Georgia would leave him facing a premature death, as well as a real risk of being subjected to inhuman or degrading treatment due to the unavailability in Georgia of the necessary care for his medical conditions. He also contends that his right to respect for private and family life under Article 8 would be violated on account of the rest of his family being granted leave to remain in Belgium.

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Committee of Ministers: Resolution for Conference of European Churches against the Netherlands

The Committee of Ministers (CM) adopted a resolution on 15 April 2015 regarding the complaint lodged by the Conference of European Churches (CEC) against the Netherlands. In this case, the European Committee of Social Rights (ECSR) ruled in November 2014 that asylum seekers, whose claims had been rejected,  and other undocumented persons have the right to food, water, shelter and clothing. The CM took note of the decision and reasoning of the ECSR, and has asked the Netherlands to report on any future developments in this area.

The ELENA Weekly Update would like to thank Sadhia Rafi, the Dutch ELENA coordinator, for informing us about these developments

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United Nations

UNHCR: Position on Returns to South Sudan

On 14 April 2015, UNHCR published a new position paper on returns to South Sudan urging States to suspend forcible returns of nationals or habitual residents of South Sudan to the country in light of the continued deterioration of the security situation, the rule of law and of human rights.

Ongoing fighting between government and opposition forces in South Sudan has led to the internal displacement of some 1.5 million people, while over 500,000 individuals have crossed the borders to seek refuge in Ethiopia, Kenya, Sudan, and Uganda. Food insecurity since January 2015 is affecting more than 2.5 million people in the country, an estimated 2.3 million people need shelter materials and basic household items, and systematic and widespread human rights violations have been widely reported.

The UNHCR guidelines note that in such a context, many of the persons fleeing from South Sudan are likely to meet the criteria for refugee status under the 1951 Refugee Convention. Furthermore, the security, rule of law and human rights situation stands in the way of a safe and dignified return for any person originating from South Sudan irrespective of whether or not the individual has been granted international protection. UNHCR notes that this bar on forcible returns serves as a minimum standard that should remain in place until the situation in South Sudan has improved sufficiently to permit a safe and dignified return of those determined not to be in need of international protection.

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National Developments

Norway: Immigration Appeals Board stops returns to Yemen 

The Norwegian Immigration Appeals Board (UNE) published a statement on 15 April that announced that there will be no more forcible returns to Yemen until further notice, and the duty to return voluntarily after receiving a final rejection has also been temporarily suspended. The suspension of forcible returns and of the duty to return comes after an escalation of the conflict in Yemen, and these suspensions will give UNE time to monitor the development of the conflict and assess the security situation in key parts of Yemen.

The suspensions do not apply to persons whose cases are covered by the Dublin III Regulation or first asylum country rule.
The ELENA Weekly Update would like to thank Halvor Frihagen, the Norwegian ELENA coordinator, for informing us about these developments

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Netherlands: Moratorium placed on asylum decisions and return of rejected asylum applications to parts of Iraq and South Somalia

The Netherlands on the 20 April published a decision of 16 April to issue a moratorium on asylum decisions and the return of applicants, whose protection claims have been rejected, to certain regions of Iraq for the next six months. These individuals are entitled to the same material reception benefits as first-time asylum applicants to the Netherlands, and can therefore stay in designated reception centres. The suspension on decisions and returns applies to asylum seekers originating from the provinces of Baghdad, Anbar, Ninewa, Salaheddin, Ta’mim, Diyala en Babil.

Published on the same day, a moratorium was also placed on decisions and returns to the areas of Central and Southern Somalia that are under the control of the militant group Al-Shabaab. A report on Somalia stated that while the area under the control of Al-Shabaab decreased during the last reporting period, there are still a number of violent incidents taking place, with numerous human rights violations continuing. Asylum seekers, whose claims have been rejected, returning to those parts are in danger of being identified as having been in the West, and as such will be treated as traitors or spies, with this suspicion possibly leading to execution. The moratorium will remain in force for a further six months.

The ELENA Weekly Update would like to thank  Sadhia Rafi, the Dutch ELENA coordinator, for informing us about these developments

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Asylum Information Database: Updated report on Belgium


A new AIDA Belgium report expresses concern around the continuous reduction of reception places for asylum seekers in the country. Following a drop from 23,800 reception places in 2013 to 19,000 in 2014, Belgium’s capacity at the beginning of 2015 fell once more to 17,400 places in addition to 1,800 places that can be made readily available in a few days in case of a sudden rise in asylum applications. By the end of the year, reception capacity is expected to shrink even further to approximately 16,600 reception places, as a consequence of budget cuts. The report by the Belgian Refugee Council (BCHV-CBAR) highlights that this reduction in reception space is taking place against a background of increasing numbers of protection applications in the country, which rose from 15,800 in 2013 to over 17,000 in 2014. The increase in applications has been coupled by a rise in positive decisions on asylum claims reaching over 36% in 2014, an unprecedented recognition rate in Belgium.
As the report details, the new Belgian Government, in office since October 2014, has expressed its intention to introduce a number of restrictive measures affecting protection seekers’ access to rights throughout the asylum procedure. Beyond gradual limitations on its reception capacity, Belgium is set to include more countries in its ‘safe country of origin’ list, thereby enabling asylum authorities to consider inadmissible the applications for international protection of these countries’ nationals. Asylum applications from these countries nationals are not examined in substance on the assumption that persecution is unlikely to occur in these countries.
Moreover, the government has stated they would increase the use of detention, including of families with children.

AIDA Report: Switzerland tests pilot accelerated procedure and reforms rules on ‘Dublin’ detention 

A new AIDA report on Switzerland, written by the Swiss Refugee Council, examines “Testphase”, a Swiss accelerated procedure introduced in January 2014, which will be pilot tested in the federal reception centre of Zurich until 2016.
Under this pilot accelerated procedure, asylum seekers are randomly selected and transferred to the Zurich test centre, an open reception centre, with a view to completing all stages of the first instance asylum procedure in the same place and within a short period of time. An important aspect of this pilot project is that every asylum seeker is assigned a free legal representative, a novelty for the Swiss asylum system. A draft federal law, to be discussed in Parliament, envisages the establishment of an accelerated procedure modelled after “Testphase” for all of Switzerland.
This new accelerated procedure differs from the airport procedure applied in transit areas of the country’s international airports, and from the “48-hour” procedure (not officially labelled as an accelerated procedure) applied to asylum seekers coming from “safe European countries” such as Bosnia-Herzegovina, Macedonia, Kosovo and Georgia.
Moreover, Swiss law is undergoing amendments to comply with the Dublin III Regulation, which allocates responsibility between Member States for processing asylum applications. Currently, Swiss legislation does not comply with the detention provisions of Dublin III, as it enables detention of asylum seekers on the sole ground that they are to be returned to another country under the Dublin Regulation. However, while the proposed federal law will comply with that provision of the new Regulation, it does not seem in line with the requirement to set the maximum duration of detention for these cases at 3 months and to provide clear objective criteria for the definition of “significant risk of absconding” as a ground for detention, according to the AIDA report.
The report also highlights that following the judgment of the European Court of Human Rights in Tarakhel v Switzerland in November 2014, the Swiss Federal Administrative Court has also endorsed in March this year the view that asylum seeking families cannot be lawfully returned to Italy under the Dublin system if there are no guarantees ensuring that they will be accommodated adequately and have their family unity respected upon return.
The Asylum Information Database (AIDA) is an ECRE project mapping asylum procedures, reception conditions and detention in Europe. The database covers 16 EU countries, and will soon be enlarged to include Switzerland and Turkey.

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Article: ‘Is asylum a principle of the liberal democratic state?’ by María-Teresa Gil-Bazo

In a blog post appearing on the Oxford University Press blog (OUPblog) on 22 April 2015, María-Teresa Gil-Bazo explores the nature of asylum as general principle of international law. While refugees enjoy a distinct and unique standard of protection under international law based on the 1951 Refugee Convention and its 1967 Protocol, asylum has not found expression in any international treaty of universal scope and therefore there has been no internationally agreed definition of what the protection encompasses. However, this article argues that the continuous historical presence of asylum across civilizations over time, as well as its crystallization in a norm of constitutional rank among States worldwide suggests that asylum constitutes a general principle of international law.


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 John Dorber (jdorber@ecre.org) or Julia Zelvenska (jzelvenska@ecre.org).

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