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ELENA Weekly Legal Update (EWLU)

9 September 2016
 

Summary


European Court of Human Rights European Union National Developments NGOs

European Court of Human Rights


J.K. and Others v Sweden (no. 59166/12) [Article 3], 23 August 2016

On 23 August 2016, the European Court of Human Rights ruled in J.K. and Others v Sweden that returning an Iraqi family, who had sought asylum in Sweden, back to their country of origin could result in inhumane or degrading treatment, violating Article 3 of the European Convention on Human Rights.
 
The Court provided an assessment of general principles applicable to expulsion cases (paras. 77 – 105), including ex nunc evaluation of the circumstances of the case, distribution of the burden of proof and past ill-treatment as an indication of risk.

The Grand Chamber noted that in Iraq, the family (a couple and their son) had been subjected to ill-treatment by al-Qaeda. The father, who owned a construction and transport business, belonged to a systematically targeted group of persons because of his business relationship with the American armed forces. According to the Court, this provided a clear indication that the family would continue to be at risk from al-Qaeda in Iraq.  
 
The Court further observed that the security situation in Iraq had severely deteriorated since 2011 and 2012. As a result of the increase in sectarian violence and ISIS attacks, most areas are no longer under effective control by the Iraqi government. The Iraqi authorities would therefore be unable to adequately protect its citizens.

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Alimov v Turkey (no. 14344/13) [Articles 3, 5, 13], 6 September 2016

On 6 September 2016, the European Court of Human Rights ruled in Alimov v Turkey (no. 14344/13) concerning a complaint by an asylum seeker about his detention pending removal for 104 days.
 
An Uzbek asylum seeker submitted an application to the ECtHR complaining that the procedure in Turkey for detention pending deportation had not been clear and therefore unlawful; that he had never been informed of the reasons for his detention; and that he had had no opportunity to challenge the lawfulness of his detention or receive compensation under the domestic law in violation of Article 5 §§ 1, 2, 4, and 5 ECHR. Further relying on Article 3 ECHR, the applicant also complained that he had been detained in degrading conditions, notably in overcrowded detention facilities at both the airport and removal centre, with no access to outdoor exercise at any time during the entire period of his detention. Moreover, the applicant claimed that there had been no effective domestic remedies available to him to complain of the poor conditions while in detention in violation of Article 13 ECHR taken alone and in conjunction with Article 3 ECHR.
 
Regarding Article 5 § 1 ECHR, the Court observes that is has previously found that in the absence of clear legal provisions in Turkish law establishing the procedure for ordering detention with a view to deportation, the applicants’ detention had not been “lawful” for the purposes of Article 5 § 1 ECHR. The Court further considers that even if it were to accept that the applicant was notified of the reasons for his detention, that notification was not made sufficiently promptly to satisfy the requirements of Article 5 (2) ECHR.
 
The Court finds a violation of Article 5 § 4 and 5 ECHR as Turkish legal system does not provide persons in the applicant’s position with a remedy whereby they could obtain judicial review of the lawfulness of their detention, within the meaning of Article 5 § 4, and receive compensation for their unlawful detention, as required under Article 5 § 5 of the Convention
 
The Court further finds a violation of Article 13 ECHR in conjunction with Article 3, on account of the absence of an effective remedy to complain about the inadequate conditions of the applicant’s detention at detention facility and the removal centre. Lastly, the Court finds a violation of Article 3 ECHR on account of the material conditions, such as insufficient living space and no access to outdoor exercise, in which the applicant was detained in the detention facility and the removal centre.
 
See also Erkenov v. Turkey (no. 18152/11) [Article 5§§ 1, 2, 4, and 5], 6 September 2016 regarding detention at the Gaziantep Foreigners’ Removal Centre in Turkey for 18 months.

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European Court of Human Rights launches State of Proceedings search engine

The European Court of Human Rights has created a new search engine State of Proceedings (SOP), which enables anyone to find out the current procedural state of an application. It provides information on all cases that have been allocated to a judicial formation and are not anonymous. The information will be accessible two months after each procedural event.

The search engine exists in EnglishFrenchFinnishHungarianItalianPolish and Portuguese.

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European Union


CJEU: Case C-391/16 M – reference for preliminary ruling by the Supreme Administrative Court of the Czech Republic 

On 14 July 2016, the Supreme Administrative Court of the Czech Republic referred the following question to the CJEU:
 
“Is Article 14 (4) and (6) of the Directive 2011/95/EU of the European Parliament and of the Council of 13 December 2011 on standards for the qualification of third-country nationals or stateless persons as beneficiaries of international protection, for a uniform status for refugees or for persons eligible for subsidiary protection, and for the content of the protection granted, invalid because it infringes Article 18 of the Charter of Fundamental Rights of the European Union, Article 78(1) of the Treaty on the Functioning of the European Union and the general principles of EU law, as set out in Article 6(3) of the Treaty on European Union.” 

Based on an unofficial translation. 

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National Developments


Netherlands: Morocco as a safe country of origin insufficiently motivated by the State Secretary  

On 23 August 2016, the District Court of Groningen ruled upon the designation of Morocco as a safe country of origin.
 
The case relates to an asylum application from a Moroccan national. The State Secretary of Security and Justice dismissed the asylum claim as manifestly unfounded because Morocco – with the exception of LGBTI persons – could be considered as a safe country of origin.
 
The Court observed that the possibility under Article 30(1) of Directive 2005/85/EC to exempt a certain part of a country as safe had not been included in Directive 2013/32/EU. As a result, the State Secretary should have included the particular situation of LGBTI persons in the assessment of whether a country could be deemed a safe country of origin. In addition, the State Secretary had failed to consult EASO, UNHCR and the Council of Europe of their intention to include Morocco on the list of safe countries. For these reason, the Court was not convinced that the State Secretary had based his decision on sufficient available information.
 
The Court ruled the ministerial regulation, which indicated Morocco as a safe third country, non-binding. As such, the appeal was granted.
 
Based on an unofficial translation. 

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NGOs


ELENA/ECRE blog: Protection of Victims of human trafficking and the ECtHR’s inadmissibility decision in G.J. v Spain  

Vladislava Stoyanova, Lecturer and Postdoctoral Fellow at Lund University and Author of the forthcoming book Human Trafficking and Slavery Reconsidered. Conceptual Limits and States; Positive Obligations in European Law, has written a blog post on the protection of victims of human trafficking and the ECHR’s inadmissibility decision in G.J. v Spain.
 
The article first gives a brief summary of the facts and legal question in the G.J. v Spain judgment. This is followed by a brief description of the legal and practical challenges that victims of human trafficking face in Europe. In this manner, the contribution assesses the failure of Spanish legislation to incorporate the State obligations under the Council of Europe Convention on Action against Trafficking in Human Beings. The author further emphasizes the ineffective interaction between asylum and victim identification proceedings. According to the author, empirical data shows that many victims of human trafficking apply for asylum. It is therefore important that the asylum system adequately responds to their specific circumstances.

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AIDA/ECRE report: Admissibility, responsibility and safety in European asylum procedures  

The Asylum Information Database (AIDA) has published a new report regarding the admissibility, responsibility and safety in European asylum procedure. The report documents the limited and fragmented application of admissibility and safe country concepts in 20 European countries.
 
Chapter I discusses conceptual challenges related to the fragmentation and categorisation of asylum seekers into different asylum procedures, followed by a statistical overview of procedures, including the application of the Dublin system and relocation. Chapter II examines national asylum procedures on the practical application of admissibility, namely the criteria and processes underlying the “first country of asylum” and “safe third country” concepts, and provides an update on the implementation of the Dublin system and the emergency relocation scheme.
 
A final part draws conclusions and sketches out recommendations to European countries and EU institutions for the development of protective, streamlined asylum procedures in the EU and beyond.

Based on the AIDA article dated 18 April 2016, available here.  

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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 Isa van Krimpen (ivankrimpen@ecre.org), or Julia Zelvenska (jzelvenska@ecre.org).
 
       

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