Human Rights in Europe

Transcription

1 The AIRE Centre Advice on Individual Rights in Europe Human Rights in Europe Legal Bulletin Broj 2015, 3, Issue

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3 2015, Issue 3 AIRE Centre London Editors: Nuala Mole Biljana Braithwaite Assistant editor: Catharina Harby Copyright AIRE Centre November 2015 Printout (Serbian/Bosnian/Croatian): 1700 The production of this publication is supported by The Foreign and Commonwealth Office and the Joint Programme of the Council of Europe and the European Commission This publication is protected by international copyright law. All rights reserved. No part of this publication may be reproduced or transmitted in any form or by any means, electronic, mechanical, photocopying, recording or otherwise, without prior permission of the editors. 1

4 Human Rights in Europe Introduction We are delighted to present to our readers the Third Issue of the Bulletin for 2015, a publication which continues to provide you with summaries and comments on cases from the European Court of Human Rights (ECtHR) in Strasbourg, and the Court of Justice of the European Union (CJEU) in Luxembourg, as well as articles written by prominent European lawyers focusing on issues particularly relevant for the region. In this Bulletin, we are pleased to include an article on an very timely topic in view of the vast number of migrants who have since the summer been arriving in Europe. The article looks at one specific aspect of international law relating to asylum and migration the prohibition of collective expulsion and so called push backs. The article is written by Nuala Mole, Senior Lawyer at the AIRE Centre and a renowned expert in asylum law, together with Markella Papadouli, Legal Project Manager and Paul Erdunast, Case Worker both at the AIRE Centre, and is entitled Push backs a the Border: The Prohibition of Collective Expulsions and of non-refoulement. It sets out some of the key elements of European law in relation to asylum and then moves on to look at the legal regime regulating the conduct of States who are confronted with migration movements on a significant scale including the duty to identify (and process) those who may qualify for international protection, and to refrain from collective expulsions or exclusions to secure the rights engaged in accordance with the principle of non-discrimination. As in every Issue, our Bulletin also reports a number of cases of particular interest for the region. The comments are written by AIRE Centre in house experts, but we also draw on expertise from lawyers across Europe specialising in the field of human rights. For this Issue, we are particularly grateful to Adam Weiss, Legal Director of the European Roma Rights Centre in Budapest, and James Reynolds, Bertha Human Rights Fellow at ISLP-UK for their contributions. The first case we are reporting in this Issue is from the CJEU: Shepherd Case C-427/13, concerns a preliminary ruling from the Administrative Court of Munich regarding the interpretation the Qualification Directive, which sets out the minimum standards for third country nationals or stateless persons to qualify for asylum ( international protection ). The following cases are from the ECtHR, and the first of these is V.M. and others v. Belgium in which a Serbian family of Roma origin were seeking asylum in Belgium. The Court found that the conditions of extreme poverty faced by them following their eviction from an accommodation centre constituted a violation of Article 3. This is followed by the case of Y. v. Slovenia, which concerned the investigation 2

5 2015, Issue 3 into and trial relating to alleged sexual assault, and the State s obligations towards the victim under Articles 3 and 8. In Oliari and others v. Italy the Court held that Italy should introduce the possibility of legal recognition for same-sex couples. We then report the judgment in Delfi AS v. Estonia, where the Grand Chamber upheld an earlier Chamber decision that the finding of liability against an Internet portal for third-party comments was a justified and proportionate restriction of freedom of expression. The next case, Satakunnan Markkinapörssi Oy and Satamedia Oy v. Finland, also concerns Article 10 and the Court found that the ban on the publication of individuals taxation data by the applicant companies did not violate the right to freedom of expression. Finally, in Schipani and others v. Italy, the Strasbourg Court held that the failure by the domestic courts to give reasons for refusing to make a preliminary reference to the CJEU in a case concerning EU law violated the right to a fair trial in Article 6. As always, it is our hope that the Bulletin will continue to contribute to increasing the awareness of European human rights laws and practice, and rule of law standards applied across both the Council of Europe and the European Union. In addition to the quarterly printed copy of the Bulletin which is distributed throughout the region, readers can also use the database on the AIRE Centre s website to search through older editions of the publication and specific case summaries and comments. London, November 2015 Biljana Braithwaite Editor and Founder Catharina Harby Editor 3

6 Human Rights in Europe CONTENTS Introduction...2 PUSH BACKS AT THE BORDER: THE PROHIBTION OF COLLECTIVE EXPULSIONS AND OF NON REFOULEMENT...5 JUDGMENT IN THE CASE OF ANDRE LAWRENCE SHEPHERD V BUNDESREPUBLIK DEUTSCHLAND...14 JUDGMENT IN THE CASE OF V.M. AND OTHERS v. BELGIUM...18 JUDGMENT IN THE CASE OF Y v. SLOVENIA...22 JUDGMENT IN THE CASE OF OLIARI AND OTHERS v. ITALY...26 GRAND CHAMBER JUDGMENT IN THE CASE OF DELFI AS v. ESTONIA...30 JUDGMENT IN THE CASE OF SATAKUNNAN MARKKINAPÖRSSI OY AND SATAMEDIA OY v. FINLAND...34 JUDGMENT IN THE CASE OF SCHIPANI AND OTHERS v. ITALY

7 2015, Issue 3 PUSH BACKS AT THE BORDER: THE PROHIBTION OF COLLECTIVE EXPULSIONS AND OF NON REFOULEMENT Introduction This short article will set out some of the key elements of European law in relation to asylum and discuss some of the issues currently pending before the European Court of Human Rights (ECtHR). It will also look at the legal regime regulating the conduct of States who are confronted with migration movements on a significant scale including the duty to identify (and process) those who may qualify for international protection, to refrain from collective expulsions or exclusions to secure the rights engaged in accordance with the principle of non-discrimination. As has been frequently recognised by the ECtHR, a key attribute of State sovereignty is the right to admit foreigners or to refuse them entry to the territory of the State. There is no general right under the Convention for a non-national to enter or remain in a State. 1 However refusal of entry, or the return of a person who has entered, which will result in the exposing of any individual to the risk of serious violations of human rights, including in particular the right to life, the prohibition of torture or inhuman or degrading treatment or punishment, or a flagrant denial of justice or of the right to liberty 2 is always prohibited. This is clear from a long line of case law of the ECtHR. Such refusals of entry are also contrary to the prohibition on non-refoulement found in the 1951 Geneva Convention on the Status of Refugees (Geneva Convention). Article 53 of the European Convention on Human Rights (ECHR) requires States to act in compliance with their other international obligations when acting within the scope of the ECHR. The word asylum is normally used to refer to the protection granted under the Geneva Convention. Those who are at risk of serious harm, which falls outside the scope of the Geneva Convention, are said to be in need of (and entitled to) international protection but the terms are often used interchangeably. In order for this prohibition to be practical and effective and not theoretical and illusory, 3 Contracting Parties to the ECHR must have in place effective systems for identifying people within their jurisdiction who are entitled to benefit from the prohibition on the refusal of entry or of return. 4 Article 1 ECHR requires States to secure the rights of the Convention to everyone within their jurisdiction, whether citizens or foreigners and whether or not they are lawfully present. The key question is therefore whether individuals are within the 1 See e.g. Hirsi Jamaa and Other v. Italy App no 27765/09 (ECtHR, 23 February 2012), para See e.g. Hirsi Jamaa and Other v. Italy App no 27765/09 (ECtHR, 23 February 2012), para See e.g. Artico v. Italy App no 6694/74 (ECtHR, 13 May 1980). 4 See e.g. Hirsi Jamaa and Other v. Italy App no 27765/09 (ECtHR, 23 February 2012), para

8 Human Rights in Europe jurisdiction of Contracting States when they are subjected to a refusal of entry or to return. Jurisdiction is primarily territorial and is presumed to be exercised on the national territory of States ( ), the notion of expulsion is also principally territorial in the sense that expulsions are most often conducted from national territory. 5 It is therefore uncontroversial that individuals are within a State s jurisdiction when they are on a State s territory, lawfully or otherwise. 6 Persons who are not present on the territory of the State can also fall within the State s jurisdiction, in a number of situations. A State s responsibility may be engaged on account of acts which have sufficiently proximate repercussions on rights guaranteed by the Convention, even if those repercussions occur outside its jurisdiction. 7 These include, among others, where persons are present in an international transit zone 8 and, extraterritorially, where the State exercises authority and control, including where persons are intercepted on the high seas, 9 arrive by sea at a port, 10 or are on board an aircraft refused permission to land. 11 Furthermore, people who are subject to checkpoint controls outside the territory of the Contracting State are within its jurisdiction. 12 It has also been accepted that a Contracting State may exercise jurisdiction in a third country due to the effective authority or control of its military forces in an armed conflict. 13 It is now clearly established that where the State authorities take action the effect of which is to prevent migrants from reaching the borders of the State or even to push them back to another State, this constitutes an exercise of jurisdiction within the meaning of Article 1 of the Convention which engages the responsibility of the State in question 14 Such an interpretation is necessary in order to avoid depriving the Convention rights of effectiveness in such circumstances. 15 In Sharifi and Others v. Italy, the Court held that: 212. The Court does not consider it necessary to establish in the present case if the applicants were expelled after entering Italian territory or if they were returned before they were able to do so. Given that interceptions on the high seas fall within the scope of Article 4, the same must be so for refusals to admit to national territory. [Unofficial translation] 5 Hirsi Jamaa and Others v. Italy App no 27765/09 (ECtHR, 23 February 2012), para See e.g. Louzidou v. Turkey (Preliminary Objections) App no 15318/89 (ECtHR, 23 March 1995), para 62; Issa and Others v. Turkey App no 31821//96 (ECtHR, 16 November 2004), para 71; Al-Skeini and Others v. the United Kingdom App no 55721/07 (ECtHR, 7 July 2011), para 131; Hirsi Jamaa and Others v. Italy App no 27765/09 (ECtHR, 23 February 2012), para Ilaşcu and Others v. Maldova and Russia App no 48787/99 (ECtHR, 8 July 2004), para Amuur v. France App no 19776/92 (ECtHR, 25 June 1996). 9 Hirsi Jamaa and Others v. Italy App no 27765/09 (ECtHR, 23 February 2012), para Sharifi and Others v. Italy and Greece App no 16643/09 (ECtHR, 21 October 2014). 11 East African Asians (British protected persons) v. the United Kingdom App nos 4715/70, 4783/71 and 4827/71 (ECtHR, 6 March 1978). 12 Jaloud v. the Netherlands App no 47708/08 (ECtHR, 20 November 2014). 13 Issa and Others v. Turkey App no 31821//96 (ECtHR, 16 November 2004); Al-Saadoon and Mufdhi v. the United Kingdom App no 61498/08 (ECtHR, 4 October 2010); Al-Skeini and Others v. the United Kingdom App no 55721/07 (ECtHR, 7 July 2011); Al-Jedda v. the United Kingdom App no 27021/08 (ECtHR, 7 July 2011). 14 Hirsi Jamaa and Others v. Italy App no 27765/09 (ECtHR, 23 February 2012), para Sharifi and Others v. Italy and Greece App no 16643/09 (ECtHR, 21 October 2014), para

9 2015, Issue 3 It is clear therefore that those who are subject to the effective authority or control of a Contracting Party on or at its land border and are prevented by the acts and omissions of that Contracting Party from being identified as asylum seekers or from making, registering or lodging an application for international protection or from opposing a measure that would result in refoulement, are in a position analogous or equivalent to that of those identified as being within a State s jurisdiction when intercepted on the high seas or in the transit zone of an airport. Policies and practices which prevent migrants from reaching or entering State territory have been put in place by many Member States of the Council of Europe or are planned in response to the significant migration movements of The case of ND & NT v Spain 16 now pending before the ECtHR concerns the collective push backs of migrants from Spanish territory by Spanish border guards at Spain s land borders with Morocco. This article will now consider the prohibition on collective pushbacks, and will start with examining the nature and scope of the State s obligations to all those who are within its jurisdiction irrespective of whether they are lawfully on its territory. Nature and scope of the State s obligations within its jurisdiction in accordance with Article 1 ECHR Article 1 ECHR not only imposes obligations of non-refoulement on the State but also a duty to respect, protect and fulfil Convention rights by treating persons with the dignity consonant with compliance with Convention standards wherever and whenever they are within their jurisdiction, lawfully or otherwise. The negative obligations on a State in respect of people arriving at its borders include (i) the obligation to refrain from preventing them from accessing procedures for determining their protection needs and (ii) the obligation to refrain from the excessive use of force to effect the imposition of restrictions on freedom of movement or deprivation of liberty in order to effect an expulsion. There is also (iii) an obligation to refrain from refouling people to States where they would be at risk, or where they are at risk of being returned onward to their countries of origin where they would be at risk. 17 Furthermore there is (iv) an obligation to refrain from collective expulsion, which will be discussed in more detail below. The positive obligations on the State include, amongst others, (i) the obligation to take all the steps it is reasonable to expect the State to take to protect individuals from any harm to their life or physical integrity of which it knew or ought to have known, 18 (ii) the obligation to ensure independent, prompt and effective investigation of alleged violations of Convention rights, and to ensure effective remedies for such violations. The obligation to treat all individuals compatibly with the ECHR includes the obligation to 16 Application Nos. 8675/15 and 8697/15 17 M.S.S. v. Belgium and Greece App no 30696/09 (ECtHR, 21 January 2011); Sharifi and Others v. Italy and Greece App no 16643/09 (ECtHR, 21 October 2014). 18 M.S.S. v. Belgium and Greece App no 30696/09 (ECtHR, 21 January 2011); Osman v. the United Kingdom App no 23452/94 (ECtHR, 28 October 1998). 7

10 Human Rights in Europe identify and pay special attention to the needs of unaccompanied (and accompanied) children, the elderly, the sick and injured and persons with disabilities 19, irrespective of whether national authorisation to enter the territory has yet been granted. 20 States also have (iii) an obligation to enable those who wish to identify themselves as being in need of international protection to do so 21 and (iv) to permit them access to protection determination procedures with all the procedural safeguards required by international, European and national law. These obligations primarily concern those who are in need of international protection and at risk of harm if returned or who are otherwise particularly vulnerable. The prohibition of collective expulsion But there is another important provision of the ECHR: Article 4 of Protocol 4 prohibits the collective expulsion of aliens. This provision applies to everyone, not just to the vulnerable or to those in need of international protection. Collective expulsion is prohibited 22 without exceptions or limitations, under general international law, including by all major human rights treaties. This prohibition is considered to have assumed the status of customary international law 23 and, therefore, is binding on all States, regardless of whether they are parties to a treaty expressing such prohibition. Importantly, the prohibition is directed towards the collective nature of the action and applies irrespective of whether any of the individuals affected are at risk of prohibited ill treatment (and thus in need of international protection). It applies equally to persons who could lawfully be refused entry on an examination of their individual cases. In a series of cases, beginning with Čonka v. Belgium, 24 the ECtHR has considered whether Article 4 of Protocol 4 has been engaged and if so, whether it has been violated. Čonka was a case concerning the expulsion of a group of foreigners who were already on Belgian territory. The Court set out the factors, which it took into consideration in finding a violation of Article 4 of Protocol 4: 62. firstly, prior to the applicants deportation, the political authorities concerned had announced that there would be operations of that kind and given instructions to the relevant authority for their implementation (see paragraphs 30 and 31 above); secondly, all the aliens concerned had been required to attend the police station at the same time; 19 See e.g. Muskhadzhiyeva and Others v. Belgium App no 41442/07 (ECtHR, 19 January 2010); Mubilanzila Mayeka and Kaniki Mitunga v. Belgium App no 13178/03 (ECtHR, 12 October 2006); Defence for Children International (DCI) v. Belgium App no 69/2011 (ECSR, 23 October 2012); Defence for Children International (DCI) v. the Netherlands App no 47/2008 (ECSR, 20 October 2009). 20 Saadi v. the United Kingdom App no 13229/03 (ECtHR, 29 January 2008). 21 Hirsi Jamaa and Others v. Italy App no 27765/09 (ECtHR, 23 February 2012). 22 UN Human Rights Committee (HRC), CCPR General Comment No. 29: Article 4: Derogations during a State of Emergency, 31 August 2001, CCPR/C/21/Rev.1/Add.11, available at: [accessed 20 November 2015], para 13(d). 23 The ILC Special Rapporteur on the expulsion of aliens held that the prohibition of collective expulsion assumed the status of a general principle of international law recognised by civilised nations. See UN General Assembly, Third report on the expulsion of aliens / by Maurice Kamto, Special Rapporteur, 19 April 2007, A/CN.4/581, available at para Čonka v. Belgium App no 51564/99 (ECtHR, 5 February 2002). 8

11 2015, Issue 3 thirdly, the orders served on them requiring them to leave the territory and for their arrest were couched in identical terms; fourthly, it was very difficult for the aliens to contact a lawyer; lastly, the asylum procedure had not been completed. 63. In short, at no stage in the period between the service of the notice on the aliens to attend the police station and their expulsion did the procedure afford sufficient guarantees demonstrating that the personal circumstances of each of those concerned had been genuinely and individually taken into account. The case of Hirsi Jamaa v. Italy 25 concerned pushbacks of boatloads of migrants in the Mediterranean. The Court s first task was to establish that the applicants, although on the high seas, were within the jurisdiction of Italy, even though they were not on its territory or in its territorial waters. Applying the criteria set out above it considered that they were. The Court then went on to look at whether there had been a collective expulsion so as to engage Article 4 of Protocol 4: 185. In the instant case, the Court can only find that the transfer of the applicants to Libya was carried out without any form of examination of each applicant s individual situation. It has not been disputed that the applicants were not subjected to any identification procedure by the Italian authorities, which restricted themselves to embarking all the intercepted migrants onto military ships and disembarking them on Libyan soil. Moreover, the Court notes that the personnel aboard the military ships were not trained to conduct individual interviews and were not assisted by interpreters or legal advisers. That is sufficient for the Court to rule out the existence of sufficient guarantees ensuring that the individual circumstances of each of those concerned were actually the subject of a detailed examination. The Court thus held that the return of persons who were within the jurisdiction of Italy (even if not on its territory), without any identification procedure or any individualised decision was in violation of Article 4 of Protocol 4. More recently, the cases of Sharifi 26 (quoted above) and Khlaifia and Others v. Italy 27 have addressed this issue. The case of Khlaifia concerned a group of Tunisians, who had arrived on the Italian island of Lampedusa. The applicants were registered and finger-printed, then transferred to Palermo (Sicily), held on a ship moored in the harbour there, and finally flown back to Tunisia. In relation to the complaints under Article 4 of Protocol 4, the Court, although distinguishing Hirsi because the applicants in Khlaifia had been the subject of an identification procedure, held: 156 the mere putting in place of a procedure of identification is not sufficient to exclude the existence of a collective expulsion. [The Court considers] that several elements lead to the 25 Hirsi Jamaa and Others v. Italy App no 27765/09 (ECtHR, 23 February 2012). 26 Sharifi and Others v. Italy and Greece App no 16643/09 (ECtHR, 21 October 2014). 27 Khlaifia and Others v. Italy App no 16483/12 (ECtHR, 1 September 2015). 9

12 Human Rights in Europe conclusion that the impugned expulsion did indeed have a collective character. In particular the return orders contained no reference to the personal situation of those affected; the Government has not produced any document capable of proving that interviews concerning the specific situation of each applicant took place before the adoption of the orders; a large number of people of the same origin were subjected, at the time of the impugned events to the same fate as the applicants; the bilateral agreements with Tunisia had not been made public and foresaw the return of irregular Tunisian migrants by way of simplified procedures on the basis of the simple identification of the person concerned on the part of the Tunisian consular authorities. This is sufficient for the Court to exclude the existence of sufficient guarantees that the individual situation of each person had been taken into account in a real and individual manner. [Unofficial translation] In Khlaifia the Court emphasised that even the individual identification and registration of those concerned was not sufficient to exclude their expulsion being collective in breach of Article 4 of Protocol 4 if the expelling State had made no reference to their personal circumstances, held no personal interview and a large number of people were all treated the same way. In other assessments (not involving Article 4 of Protocol 4) of the appropriateness of asylum procedures, the Court has taken into account whether the national authorities interviewed the applicant. 28 In I.M. v. France (not a collective expulsion case) the Court found procedural inadequacy in a case engaging Article 3 in which there was a personal interview but it only lasted half an hour. 29 These principles apply a fortiori to those intercepted at a land border, denied identification and registration as well as information about, and access to asylum procedures where this is relevant. Where persons are expelled/excluded in such circumstances, they not only fall within the scope of Article 4 of Protocol 4 ECHR but are also presumed to be the victims of a violation of its provisions. Once Article 4 of Protocol 4 is engaged and arguably violated it is incumbent on the State, under Article 13 ECHR, to have in place an effective remedy. To be effective, a remedy must have automatic suspensive effect whenever there is a potential breach of the principle of non-refoulement, at least with regard to the right to life, the prohibition of torture and inhuman or degrading treatment or punishment, or the prohibition of collective expulsions, in light of the absolute nature of these human rights obligations. This has been made clear in Čonka, Hirsi, Sharifi and Khlaifia. 30 Once the State has ensured that the position of each of those who present themselves at the border is properly individually assessed, it must identify those who may be entitled 28 See e.g. Charahili v. Turkey App no 46605/07 (ECtHR, 13 July 2010); Nasimi v. Sweden App no 38865/02 (ECtHR, 16 March 2004). 29 I.M. v. France App no 9152/09 (ECtHR, 2 February 2012), para De Souza Ribeiro v. France App no 22689/07 (ECtHR, 13 December 2012), para 82; Hirsi Jamaa and Others v. Italy App no 27765/09 (ECtHR, 23 February 2012), para 206; Mohammed v. Austria App no 2283/12 (ECtHR, 6 June 2013), para 80; Khlaifia and Others v. Italy App no 16483/12 (ECtHR, 1 September 2015). 10

13 2015, Issue 3 to seek international protection and facilitate access to the asylum determination procedures for them. Appropriate support must be provided. Article 5(1)(f) ECHR permits the detention of individuals to prevent them effecting an unauthorised entry but any detention must be subject to effective procedural safeguards. As to the need for procedural safeguards reference can be made to the case of Amuur v France 31 where the Court held that States must ensure the presence of suitable safeguards and that the length of confinement is proportionate to the process of examination. Other procedural safeguards concerning the nature of the review that needs to be provided under Article 5 ECHR can be found, inter alia, in Koendjbiharie v the Netherlands 32, Kucera v Slovakia 33, Ilijkov v Bulgaria 34, Benjamin and Wilson v the UK 35, Kampanis v Greece 36 ; and in Reinprecht v Austria 37, A and Others v the UK 38, Turcan v Moldova 39, Fodale v Italy 40, Korneykova v Ukraine 41 and Catal v Turkey 42 regarding the principle of equality of arms. In Susa Musa v Malta 43 the Court held that where national law provided for the entry or stay of asylum seekers pending the determination of their claims it would be difficult to reconcile their detention with Article 5(1)(f) 44. Children should only exceptionally be detained and the best interests of the child principle must be observed. In the case of Rahimi v Greece 45 the ECtHR found that detention of unaccompanied children would almost never be lawful under Article 3. In Muskhaadzhiyeva v Belgium 46 the Court concluded that the fact that the children were accompanied by their mother did not exempt the authorities from their obligation to protect the children. The Court found breaches of Article 3 and 5(1) in respect of the children but not their mother. In Popov v France 47 the Court concluded that there was a breach of Article 8, as in the absence of any evidence that the family intended to abscond, detention in a closed family facility was not proportionate. The case suggests that detention may be proportionate if there is a risk of absconding. That refers to Article 8 but does not necessarily apply to Articles 3 and App no 19776/92 (ECtHR, 25 June 1996) 32 App no 11487/85 (ECtHR, 25 October 1990) 33 App no 48666/99 (ECtHR, 17 July 2009) 34 App no 33977/96 (ECtHR, 26 July 2001) 35 App no 28212/95 (ECtHR, 26 September 2002) 36 App no 17977/91 (ECtHR, 13 July 1995) 37 App no 67175/01 (ECtHR, 15 November 2005) 38 App no 3455/05 (ECtHR, 19 February 2009) 39 App no 39835/05 (ECtHR, 23 October 2007) 40 App no 70148/01 (ECtHR, 23 October 2006) 41 App no 39884/05 (ECtHR, 19 April 2012) 42 App no 26808/08 (ECtHR, 17 July 2012) 43 App no 42337/12 (ECtHR, 23 July 2013) 44 H.S. and others v. Cyprus, App nos /10, 41786/10, 41793/10, 41794/10, 41796/10, 41799/10, 41807/10, 41811/10, 41812/10, 41815/10, 41820/10, 41824/10, 41919/10 and 41921/10 (ECtHR, 21 July 2015). 45 App no 8687/08 (ECtHR, 5 July 2011). 46 App no 41442/07 (ECtHR, 19 January 2010) 47 App no 39472/07 (ECtHR, 19 January 2012) 11

14 Human Rights in Europe In addition to the provision of the ECHR, European Union (EU) law has adopted and developed an extensive body of legislation and case law on asylum. Article 53 ECHR (see above) means that no provision of the ECHR, including Article 4 of Protocol 4 can be interpreted in relation to States (who are bound by that EU law) in a manner, which diminishes the rights and reduces the rights protection guaranteed under the applicable EU law. 48 The Court has examined many different types of cases in which it has found that individuals cannot be returned compatibly with the ECHR and in particular with Articles 2 or 3. Of importance are its pronouncements in relation to returns to States other than the one from which they have fled. In those cases the Court has examined the conditions that would await them in the State of immediate return as well as the risk of being onward returned by that State to the one from which they are fleeing 49. In this context the Court has paid particular attention to the needs of families with children. The Court has also looked at situations where individuals would be returned, not to a risk personal to them, but to a situation of such generalised violence that it would only be in the most exceptional cases that a return would not expose them to treatment contrary to Article The prohibition on discrimination The prohibition on discrimination in the ECHR is found in Article 14 and Protocol 12. Article 14 prohibits discrimination - in relation to any Convention protected right - on the grounds of sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status. Article 14 is applicable to the prohibition on collective expulsions/exclusions falling within the scope of Article 4 of Protocol 4. Protocol 12 prohibits discrimination in relation to any right set forth by law. The Court has found a violation to be aggravated if the discrimination is based on a ground such as race or religion. In two immigration cases it was considered that racial discrimination in immigration would reach the threshold of severity necessary to engage Article 3 (the prohibition on degrading treatment). The (former) Commission considered that legislation excluding persons from Kenya and Uganda was racially discriminatory and an affront to dignity to the point of being degrading in breach of Article 3. The Commission further noted in Abdulaziz, Cabales, and Balkandali v UK 51 the state s discretion in immigration is not of an unfettered character, for a state may not implement policies of a purely racist nature. 48 Aristimuño Mendizabal v. France App no 51431/99 (ECtHR, 17 January 2006); M.S.S. v. Belgium and Greece App no 30696/09 (ECtHR, 21 January 2011). 49 MSS v Belgium and Greece, Tarakhel v Switzerland. 50 Vilvarajah v Uk, Salah Sheekh v Netherlands, NA v UK, Sufi and Elmi v UK. 51 App nos 9214/80, 9473/81 and 9474/81 (ECtHR, 28 May 1985) 12

15 2015, Issue 3 Conclusion As was noted at the outset, a key attribute of State sovereignty is the right to admit foreigners or to refuse them entry to the territory of the State. Coupled with that, however, is the duty conferred by Article 1 ECHR, to which Member States have committed themselves, to secure the protections of the ECHR for anyone within their jurisdiction. This short article alerts readers to the duties in relation to treatment of those seeking international protection conferred by international law in general and the ECHR in particular. Specifically, this article draws attention to the wide scope of Article 1 ECHR to include responsibility for the treatment of those people under effective authority or control on or at its land border; the prohibition on expulsion of aliens under Article 4 of Protocol 4, which is engaged owing to the above reading of Article 1; the incumbency on the State to have in place an effective remedy for breaches of these Articles which they may commit; and the prohibition on discrimination, especially relevant when putting asylum and immigration policy into place. States must be vigilant that when managing the migration challenges they are facing, be careful to ensure that they inform themselves of the applicable legal provisions, and to familiarise themselves with the case law of the ECtHR and observe the rule of law when meeting those challenges. Nuala Mole, Senior Lawyer at the AIRE Centre Markella Papadouli, Legal Project Manager at the AIRE Centre Paul Erdunast, Case Worker at the AIRE Centre 13

16 Human Rights in Europe JUDGMENT IN THE CASE OF ANDRE LAWRENCE SHEPHERD V BUNDESREPUBLIK DEUTSCHLAND (Case C-427/13) 28 February 2015 Introduction to the Court of Justice of the European Union Prior to the Lisbon Treaty, the Community Courts comprised of the Court of Justice (ECJ), the Court of First Instance (CFI) and judicial panels. The Lisbon Treaty altered the nomenclature. The term Court of Justice of the European Union includes the ECJ, the General Court, (the successor to the CFI) and specialised courts, (the new name for judicial panels). The Court gives rulings on the cases brought before it. The five most common types of cases are: requests for a preliminary ruling (as in the case below), actions for failure to fulfil an obligation (brought against EU governments for not applying EU law), actions for annulment (brought against EU laws thought to violate the EU treaties or fundamental rights), actions for failure to act (brought against EU institutions for failing to make decisions required of them) and direct actions. Preliminary Ruling Procedure The national courts in each EU country are responsible for ensuring that EU law is properly applied in that country. To avoid the risk that courts in different countries might interpret EU law in different ways, under Article 267 TFEU (Treaty on the Functioning of the European Union) the preliminary rule procedure enables a national court to ask about the interpretation or validity of an EU law if that court is in doubt. The ruling in Andre Lawrence Shepherd v Bundesrepublic Deutschland (C-427/13) (hereinafter Shepherd) concerns a preliminary ruling from the Administrative Court of Munich regarding the interpretation of Article 9(2)(e) of the Qualification Directive (2004/84). In particular, the CJEU was asked to clarify the criteria needed to trigger the application of Article 9(2)(e). The Qualification Directive sets out the minimum standards for third country nationals or stateless persons to qualify for asylum ( international protection ). Article 2(c) of the Qualification Directive defines that a refugee is a third country national who, owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, political opinion or membership of a particular social group, is outside the country of nationality and is unable or, owing to such fear, is unwilling to avail himself or herself of the protection of that country, or a stateless person, who, being outside of the 14

17 2015, Issue 3 country of former habitual residence for the same reasons as mentioned above, is unable or, owing to such fear, unwilling to return to it, and to whom Article 12 does not apply. To this end, Article 12 sets out that a third country national or stateless person will not be granted refugee states when there are serious reasons for considering that: (a) the person has committed a crime against peace, a war crime, or a crime against humanity; (b) the person has committed a serious non-political crime outside the country of refugee; (c) the person has been found guilty of acts contrary the principles of peace and security underlying the Charter of the United Nations. However, Article 9(2)(e) clarifies that acts of persecution can take the form of prosecution or punishment for refusal to perform military service in a conflict, where performing military service would include crimes or acts falling under the exclusion clauses as set out in Article 12(2). Therefore, any person, who falls within these criteria, would be granted refugee status despite the exclusion clauses under Article 12. The Directive is a binding legislative act of the European Union. It, however, leaves the form and methods for the result to be achieved to the national authorities (Article 288 TFEU). 1. Principal facts The applicant, Mr Shepherd, is a national of the United States of America. In 2003, Mr Shepherd enlisted for the army service in the USA. Between 2004 and 2005, he worked as a helicopter technician in Iraq. From February 2005, he was based in Germany. On 1 April 2007, Mr Shepherd was requested to return to his previous post in Iraq. Shortly hereafter, Mr Shepherd left the army service based on his conviction that the Iraq war was both unlawful and directly resulted in the commitment of war crimes. He then applied for asylum in Germany claiming that, as a result of his desertion, he would be at risk of criminal prosecution in the USA. This request for asylum was rejected by the German Federal Office for Migration and Refugees. Mr Shepherd appealed to the Munich Administrative Court. He requested an annulment of the rejection of his asylum application, and that he should be granted asylum. The Administrative Court asked for a preliminary ruling by the Court of Justice of the European Union regarding the interpretation of Article 9(2)(e) of the Qualification Directive (2004/84). The preliminary questions related to the specific criteria that would trigger the application of Article 9(2)(e). If Mr Shepherd s refusal to perform military service in the Iraq conflict would be considered an act of persecution, he would fall within the definition of Article 9(2)(e) of the Qualification Directive and, subsequently, be granted asylum. 15

18 Human Rights in Europe 2. Decision of the Court The CJEU emphasised that the purpose of the Qualification Directive is to identify those individuals, who should be granted international protection. Consequently, the CJEU held that the protection granted under Article 9(2)(e) covers all military personal. This, therefore, included people performing technical support to the army. Nevertheless, Article 9(2)(e) applies merely to those individuals whose activities, such as technical support, would sufficiently directly and reasonably plausibly lead to participation in war crimes. Importantly, the protection granted under Article 9(2)(e) would only be triggered in situations where there is a likelihood that the acts under Article 12(2) of the Qualifications Directive, such as crimes against peace, war crimes or crimes against humanity, will be committed. The domestic authorities are responsible for the assessment of previous and current circumstances that would indicate that the army service is or would be involved in committing such acts. It remains the responsibility of the applicant, however, to establish with sufficient plausibility that his unit would be involved in carrying out these specific acts. Significantly, the situation of persecution protected under Article 9(2)(e) only referred to an applicant s refusal to further remain enlisted in the army service. In the case of Mr Shepherd, he had not applied for the procedure for obtaining conscientious objector status because he had voluntarily enlisted and deserted the army services. It followed that the fact that the applicant for refugee status did not avail himself of a procedure for obtaining conscientious objector status excludes any protection under Article 9(2)(e), unless that applicant proves that no procedure of that nature would have been available to him in his specific situation. Lastly, the CJEU highlighted that a prison sentence could only be considered an act of persecution under Article 9(2)(b) and (c) when this sentence would be so disproportionate and discriminatory that it would go beyond what is necessary for the State concerned in order to exercise its legitimate right to maintain an armed force. The national authorities bear the responsibility for this assessment but in the particular case of Mr Shepherd, the CJEU held that the probable prison sentence would not go beyond the State s legitimate rights to maintain an armed force. 3. Comment For almost three decades the European Court of Human Right (ECtHR) has been deciding cases in which it was alleged that the return of an individual to a particular country would place him in a situation where there was a real risk of being subjected to torture or inhuman or degrading treatment contrary to Article 3 of the European Convention on Human Rights and has been called upon to assess that risk on the basis of the material presented to it (or obtained ex proprio motu). 16

19 2015, Issue 3 For almost two decades the determination of asylum claims in the Member States of the European Union has been regulated by a package of EU measures known as the EU asylum acquis. The provisions of the Qualification Directive (Dir 2004/83, now superseded for most Member States by the updated Dir 2011/95) for determining who qualifies for refugee status were adopted to guide the competent authorities of the Member States in the application of the 1951 Geneva Convention on the Status of Refugees on the basis of common concepts and criteria. The Directive also determines who is entitled to subsidiary protection (such that protects people under the ECHR from being returned to face ill treatment prohibited by Article 3 ECHR, even if they do not meet the much narrower criteria for being recognised as a refugee under the Geneva Convention). The Shepherd case concerned a US soldier who had served in Iraq and who refused to return to his unit because he alleged that he had been required to provide support to the commission of war crimes in Iraq, and would if he was returned be likely to have to do so again. He claimed he would be prosecuted for desertion if he returned to the US and, given the prevailing attitudes to the armed forces in the USA, would additionally be socially ostracised. He applied for asylum in Germany and was refused. The applicant was not a conscientious objector to performing military service. Indeed he was a volunteer soldier, but he did object to being required to support the commission of war crimes and there was not procedure available to him to be excused on that ground. The German court which heard his appeal referred several questions to the Court of Justice of the European Union for a preliminary ruling. Article 267 of the Treaty on the Functioning of the European Union enables (and in some circumstances requires) national courts to ask the CJEU for clarification of the content of any EU law applicable to the determination of the matter before them. When the ECtHR in Strasbourg examines a complaint that there has been a violation of the ECHR it decides on the applicable law and on the merits of the complaint. It is important to note that the procedure before the CJEU is different. It is limited to describing the parameters of the applicable law and not the merits. It was not, in this case, called upon to decide whether or not it had been shown that war crimes had been committed by the USA or indeed to decide any other factual issues. Its role was simply to provide the national court with guidance as to the scope of the content of the applicable EU law and to indicate the factors set out in the judgment - that the national court should then take to making the necessary findings of fact. The CJEU found that the Qualification Directive covered Mr Shepherd s situation providing logistical support to any war crimes that might be committed by the military. However it also found that he had not applied for a procedure for obtaining conscientious objector status because he had voluntarily enlisted and deserted the army services. Whether or not war crimes were likely either to have been or to be committed in the course of his military service was to be assed on the evidence by the German courts to whom the case has now been returned. 17

20 Human Rights in Europe The conditions of extreme poverty faced by a family of asylum seekers following their eviction from an accommodation centre constituted degrading treatment JUDGMENT IN THE CASE OF V.M. AND OTHERS v. BELGIUM 52 (Application No /11) 7 July Principal facts The applicants are two parents and their five children below the age of 10, who are Serbian nationals of Roma origin. They decided to leave Serbia due to the discrimination they were facing on grounds of ethnicity. In March 2010, they submitted an application for asylum in France which was rejected. In March 2011 the applicants travelled on to Belgium and submitted a request for asylum. On 12 April 2011, the Belgian authorities asked the French authorities to take the family under the EU Dublin II Regulation, which France accepted. As a result, Belgium withdrew the family s application and issued them with an order to leave the territory since the Belgian authorities were no longer responsible for handling their asylum application under the Dublin II Regulation. In June 2011, the family sought the annulment and suspension of the order to leave the territory from the Aliens Appeals Board, on the basis that the reception conditions in France were unsuitable and contrary to Article 3. In September 2011, the family applied to remain in Belgium on medical grounds since their eldest daughter was physically and mentally disabled. Their application was rejected. On 26 September 2011, financial support to the family was discontinued and they were forced to leave the reception centre they had been staying at. They made their way to Brussels where they slept on the streets. They were assigned to a new reception centre 160 kilometres away from Brussels on 7 October the applicants alleged they travelled to the facilities but were sent back to Brussels, however the Government claimed the applicants never went. The applicants stayed in Brussels North station until they returned to Serbia on 25 October. Their return was organised by a charity. On 29 November 2011, the Aliens Appeals Board annulled the order to leave the territory since the Belgian authorities had not established the legal basis for which they considered France to be the responsible State for the family s asylum application. The Belgian State appealed the decision on points of law but the Conseil d Etat declared the appeal inadmissible since the family had already left the territory. 52 This judgment will become final in the circumstances set out in Article 44 2 of the Convention. 18

21 2015, Issue 3 Upon arrival in Serbia, the eldest daughter s health got worse. She passed away on 18 December Decision of the Court Article 3 The applicants complained that their exclusion from the reception facilities from 26 September 2011 subjected them to inhuman and degrading treatment. The Court recalled that a right to asylum does not exist under the Convention and States are free to regulate migration. However, in doing so, account must be had of Article 3. In assessing whether reception conditions for asylum seekers could lead to a violation of Article 3, the Court referred to the case of M.S.S. v. Belgium and Greece 53 in which the Grand Chamber stated that in order to determine whether the minimum level of severity for Article 3 has been met, attention must be paid to asylum seekers situation as a whole. The Court emphasised the vulnerability of asylum seekers in the case of families with children. It was not disputed between the parties that Belgium had acted with due diligence up until 26 September In determining the responsibility of the Belgian State after this date the Court noted that the applicants belonged to the same category as the applicants in M.S.S.; they were a particularly disadvantaged and vulnerable group, which required special protection. The need for protection was amplified by the fact that their children included an infant and a disabled child. The applicants situation had been severe: they had spent nine nights on a public square in Brussels. They then spent two nights in a transit centre but then took up residence in a train station, where they stayed for nearly three weeks, before returning to Serbia. The Court noted that such a situation could have been avoided had the applicants appeal been dealt with more swiftly by the Aliens Appeals Board. It had only handed down its decision on the 29 November 2011, two months after the applicants had been excluded from the reception facilities. Having regard to the foregoing, the Court held that the State had not taken the applicants particular vulnerability as asylum seekers and that of the children into account. The Belgian authorities failed in their obligations to protect the applicants from a situation of extreme poverty for four weeks, with the exception of two nights. The applicants were left in the streets without any resources and no access to sanitary facilities and means of meeting their basic needs. The Court found that such conditions combined with the lack of prospect of improvement constituted degrading treatment. Hence there had been a violation of Article Grand Chamber judgment of 21 January