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ELENA Weekly Legal Update (EWLU)

17 February 2017
 

Summary


European Court of Human Rights European Union National Developments ECRE

European Court of Human Rights


S.K. v. Russia (no. 52722/15) [Articles 2, 3, 5, 8 and 13], 24 January 2017

On 24 January 2017, the European Court of Human Rights gave its ruling in S.K. v. Russia, concerning the detention and order for forced removal by Russian authorities of a Syrian national. In October and November 2015, the Court issued an interim measure requesting the Russian authorities not to remove the applicant until the case was examined by the Court.

The Syrian national arrived in Russia in October 2011 on a temporary business visa. He stayed in Russia beyond the expiry of the visa and married a Russian national in 2014, with whom he had a child with in 2013. In February 2015, the applicant was found guilty of an administrative offence for remaining in Russia beyond the expiry of his visa. He was ordered to pay a fine and was placed in a detention facility until his removal to Syria. This decision was upheld on appeal. S.K. later applied for temporary asylum in Russia, referring to the continuation of hostilities in Syria. His application was dismissed by first instance and appeal authorities on the argument that he had been convicted of administrative offences and that he was at a risk of violence which was no more intensive than that faced by other people in Syria.

The ECtHR held that there would be a violation of Article 2 and Article 3 ECHR if the applicant was to be removed to Syria. The Court relied upon recent reports on the situation in Syria and concluded that the removal would expose the applicant to a risk of death or serious harm. It concurred with the applicant’s lawyer that the situation in Syria had deteriorated considerably since his arrival in Russia in 2011. As with regard to his detention, the Court understood that there had been violations of Articles 5 § 1 and  5 § 4, since the removal of S.K. to Syria was not foreseeable due to the continuation of the conflict and to the lack of a procedure allowing for the review of his detention. The Court also found a violation of Article 13 in conjunction with Articles 2 and 3, since the available remedies were not effective for cases of removal, particularly owing to the absence of suspensive effects.

The Court understood that it was not necessary to assess the complaints under Article 8 (or his connected complaint with Article 13), in view of its conclusions regarding Articles 2 and 3. The Court indicated that S.K. should be released without delay, and no later than on the day following notification that the judgment has become final.

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Communicated case: Qaateh and Others v. Greece (no. 59758/16), communicated on 20 January 2017

On 20 January 2017, the European Court of Human Rights communicated the case Qaateh and Others v. Greece (no. 59758/16), which relates to the treatment of two Syrian nationals with poor health conditions and their carer, also a Syrian national, upon arrival in Greece.
 
The first two applicants submitted an application to the ECtHR complaining that that the medical care provided to them since they arrived to Greece was inadequate and has resulted in the deterioration of their health, contrary to Article 3 ECHR. They also complain, under Article 8, that they never gave their free and informed consent to the various medical interventions carried out as they were never informed of them in a language they understood nor were they provided with an interpreter. The third applicant complains, under Article 3, that the Government’s failure to provide adequate medical care to the first two applicants caused him, as their carer, physical and psychological exhaustion that amounted to inhuman and degrading treatment. Lastly, all applicants complain, under Article 13, that they did not have an effective remedy at their disposal in respect of their complaints under Articles 3 and 8 of the Convention.

 

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European Union


CJEU Judgment Case C-578/16 PPU C.K. and Others v. Supreme Court of Republic Slovenia

On 16 February 2017, the CJEU has delivered its judgment in case C-578/16 PPU C. K. and Others v. Supreme Court of Republic Slovenia, which relates to the interpretation of Articles 3(2) and 17(1) Dublin III Regulation (Regulation No. 604/2013). The case concerns the transfer of a couple and their new-born child from Slovenia to Croatia. Pursuant to psychiatric assessments the mother and the child were to remain at the reception centre in Slovenia since they required care. Indeed, the mother had been suffering from depression and periodic suicidal tendencies since the birth of her new-born.

With regards to the first question the CJEU rules that the application of the discretionary clause under Article 17(1) of Dublin III Regulation implies an interpretation of EU law, within the meaning of Article 267(3) TFEU.

As for the second to fourth questions the CJEU states that the provisions in the Dublin III Regulation must be interpreted and applied with respect to the fundamental rights in the Charter. The prohibition of inhuman or degrading treatment as provided in Article 4 Charter corresponds to the prohibition in Article 3 ECHR, and, in accordance with Article 52(3) Charter, its meaning and scope must be the same as conferred by the ECHR. It follows from the case law of the ECtHR (see Paposhvili v. Belgium, no. 41738/10) that the suffering which flows from naturally occurring illness may be covered by Article 3, where it is, or risks being, exacerbated by treatment, whether flowing from conditions of detention, expulsion or other measures, for which the authorities can be held responsible. Those considerations are also relevant in the context of the Dublin system, taking into account the general and absolute character of Article 4 Charter.

Even if there are no serious grounds for believing that there are systemic failures in the asylum procedure and the conditions for the reception of applicants for asylum, a transfer in itself can entail a real risk of inhuman or degrading treatment within the meaning of Article 4 Charter. This is notably the case in circumstances where the transfer of an asylum seeker, with a particularly serious mental or physical condition, leads to the applicant’s health significantly deteriorating. The authorities of a Member State must take into account objective factors, such as medical certificates, which are capable of demonstrating the particular seriousness of a person's illness and the significant and irremediable consequences that a transfer may entail for that person. It would then be for those authorities to eliminate any serious doubt as to the impact of the transfer on the health status of the person concerned, by ensuring that the asylum seeker is accompanied during the actual transfer by the appropriate medical staff who have the necessary equipment, resources and medicines, to prevent any aggravation of his health or any act of violence towards himself or third parties. Member States must also ensure that the asylum seeker receives care upon arrival in the responsible Member State.

If necessary, a Member State should suspend the transfer for as long as the applicant’s health condition does not render him capable of such a transfer. The requesting Member State may also choose to examine the request itself by making use of the 'discretionary clause' under Article 17(1) Dublin III. That provision cannot, however, be interpreted to imply an obligation for that Member State to do so. If the state of health of the asylum seeker does not allow the requesting Member State to transfer within a six-month period, the Member State responsible shall be relieved of its obligations to take charge or to take back the person concerned and responsibility shall then be transferred to the requesting Member State in accordance with Article 29(2) Dublin III Regulation.

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CJEU: C-585/16 Alheto - Request for a preliminary ruling from the Administrative Court of Sofia (Bulgaria), lodged on 18 November 2016

On 18 November 2016, the Administrative Court of Sofia referred preliminary questions to the Court of Justice on the interpretation of Art 12(1)a) of the Qualification Directive (Directive 2011/95/EU) and the Procedures Directive (Directive 2013/32/EU) in a case concerning a stateless woman from Palestine whose application for asylum in Bulgaria was denied.
 
In sum, the Sofia Administrative Court asks whether it follows from Article 12(1)a) of the Qualification Directive that it is permitted to examine an application for international protection under Article 1A Refugee Convention (as was done in this case) instead of Article 1D second sentence, where the application is made by a stateless person of Palestinian origin who is registered as a refugee with the UNRWA and who was resident in that agency’s area of operations before making that application. Moreover it is requested whether the assistance granted by the UNRWA constitutes otherwise sufficient protection, within the meaning of Article 35(b) of the Procedures Directive.

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National Developments


Ireland: Follow-up judgment by Court of Appeal after CJEU judgment in case Danqua C-495/15

On 6 February 2017, the Irish Court of Appeal ruled on the implications of the CJEU judgment in the case Evelyn Danqua v Minister for Justice and Equality Ireland and the Attorney General (Case C-429/15 of 20 October 2016). The Court of Appeal ruled on the extent to which it should be bound by a judgment of the CJEU when the latter court adapts the question referred to it on its own initiative.

On October 2016, the CJEU was asked whether the principle of equivalence precluded a national rule requiring an application for asylum to be made within 15 days from the rejection of an application for asylum. On that occasion, the CJEU ruled that the principle of effectiveness, rather than that of equivalence, was relevant to the case. It then concluded that a 15-day limit is particularly short and does not ensure a genuine opportunity to submit an application for subsidiary protection.

The Irish Court of Appeal held that, as an effect of the CJEU’s ruling, a 15 working day rule is inconsistent with EU law and must therefore be disapplied by national courts. It recognised that the Court is bound to apply the decision of the CJEU as part of its “duty of sincere co-operation with the Court of Justice as an institution of the European Union in the manner provided for Article 4(3) TEU”. The Court allowed the appeal by Ms Danqua, enabling her to make an application for subsidiary protection.

 

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ECRE


AIDA: Updated AIDA Country Reports on Switzerland and France now available

The updated AIDA Country Reports on Switzerland and France have been published on the AIDA website. The reports provide an updated and thorough overview of developments in legislation, policy and practice in relation to the asylum procedure, reception conditions, detention of asylum seekers and integration of beneficiaries of international protection.

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EDAL Blog: series on Strategic Litigation

A new EDAL blog series on strategic litigation has been published on the EDAL website. The first blog written by Jeff Walsh, former Legal Officer at ECRE, focuses on strategic litigation at a European level and the work of the AIRE Centre, ECRE and the ERRC. The author explains the meaning and importance of strategic litigation, and concludes that succeeding in taking strategic cases involves an intelligent and flexible approach by lawyers, taking into account the multiple factors that can affect the outcome. The client’s best interests must come first and lawyers have a duty of diligence to all clients equally. The second blog is written by Ana-Maria Bucataru, LLM graduate in Human Rights Law at Queen Mary's University. The blog focuses on the use of strategic litigation to protect the rights of unaccompanied children with an example of UK litigation in the ZAT case. Jelle Klaas, human rights lawyer and project coordinator of the Public Interest Litigation Project (‘PILP’) of the Dutch Section of the International Commission of Jurists (NJCM), has written the third blog on the problem of the ‘Afghan 1F’ers’ in the Netherlands. The author aims to demonstrate the way in which PILP has built litigation against the state.

 

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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).
 


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






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