Country of Origin Information (COI) Legal Framework, Accessibility and Assessment: A Practical Approach

Transcription

1 EJTN Seminar on EU Migration & Asylum Law Vienna 12./ Country of Origin Information (COI) Legal Framework, Accessibility and Assessment: A Practical Approach Presentation by Holger Böhmann Judge at the High Administrative Court of Mecklenburg-Western Pomerania 1. Legislation 2. Jurisprudence of European Courts 3. Standards 4. Databases

2 1. Legislation a. Qualification Directive (Directive 2011/95/EU, by ) Art. 4 par. 3 lit. a provides: 3. The assessment of an application for international protection is to be carried out on an individual basis and includes taking into account: (a) all relevant facts as they relate to the country of origin at the time of taking a decision on the application; including laws and regulations of the country of origin and the manner in which they are applied;

3 Art. 4 par. 5 lit. c: 5. Where Member States apply the principle according to which it is the duty of the applicant to substantiate the application for international protection and where aspects of the applicant's statements are not supported by documentary or other evidence, those aspects shall not need confirmation, when the following conditions are met: (a) the applicant has made a genuine effort to substantiate his application; (b) all relevant elements, at the applicant's disposal, have been submitted, and a satisfactory explanation regarding any lack of other relevant elements has been given; (c) the applicant's statements are found to be coherent and plausible and do not run counter to available specific and general information relevant to the applicant's case; (...)

4 1. Legislation b. Procedures Directive 2005/85/EC by (= Art. 10 Directive 2013/32/EU by ): Art. 8 par. 2 and 3 provides: 2. Member States shall ensure that decisions by the determining authority on applications for asylum are taken after an appropriate examination. To that end, Member States shall ensure that: (a) applications are examined and decisions are taken individually, objectively and impartially;

5 (b) precise and up-to-date information is obtained from various sources, such as EASO and the United Nations High Commissioner for Refugees (UNHCR) and other relevant human rights organisations, as to the general situation prevailing in the countries of origin of applicants for asylum and, where necessary, in countries through which they have transited, and that such information is made available to the personnel responsible for examining applications and taking decisions;

6 (c) the personnel examining applications and taking decisions have the knowledge with respect to relevant standards applicable in the field of asylum and refugee law. 3. (= par. 4 recast directive) The authorities referred to in Chapter V shall, through the determining authority or the applicant or otherwise, have access to the general information referred to in paragraph 2(b), necessary for the fulfilment of their task.

7 1. Legislation b. Procedures Directive 2005/85/EC by (= Art. 37 par. 3 Directive 2013/32/EU by ) Art. 30 par. 5 provides: National designation of third countries as safe countries of origin 5. The assessment of whether a country is a safe country of origin in accordance with this Article shall be based on a range of sources of information, including in particular information from other Member States, the UNHCR, EASO, the Council of Europe and other relevant international organisations.

8 1. Legislation c. Regulation (EU) No 439/2010 on the establishment of EASO Article 4 Information on countries of origin The Support Office shall organise, promote and coordinate activities relating to information on countries of origin, in particular:

9 (a) the gathering of relevant, reliable, accurate and up-to date information on countries of origin of persons applying for international protection in a transparent and impartial manner, making use of all relevant sources of information, including information gathered from governmental, nongovernmental and international organisations and the institutions and bodies of the Union;

10 (b) the drafting of reports on countries of origin, on the basis of information gathered in accordance with point (a); (c) the management and further development of a portal for gathering information on countries of origin and its maintenance with a view to ensuring transparency in accordance with the necessary rules for access to such information under Article 42;

11 (d) the development of a common format and a common methodology for presenting, verifying and using information on countries of origin; (e) the analysis of information on countries of origin in a transparent manner with a view to fostering convergence of assessment criteria, and, where appropriate, making use of the results of meetings of one or more working parties. That analysis shall not purport to give instructions to Member States about the grant or refusal of applications for international protection.

12 What are the requirements and standards for the collection and assessment of COI under the national law of your respective Member State?

13 2. Jurisprudence ECtHR, Mamatkulov and Askarov v. Turkey, cases no /99 und 46951/99, judgment of the Grand Chamber by 4th February 2005: 69. In determining whether substantial grounds have been shown for believing that a real risk of treatment contrary to Article 3 exists, the Court will assess the issue in the light of all the material placed before it or, if necessary, material obtained proprio motu. Since the nature of the Contracting States' responsibility under Article 3 in cases of this kind lies in the act of exposing an individual to the risk of ill-treatment, the existence of the risk must be assessed primarily with reference to those facts which were known or ought to have been known to the Contracting State at the time of the extradition;

14 90. The Court considers that, like the risk of treatment proscribed by Article 2 and/or Article 3, the risk of a flagrant denial of justice in the country of destination must primarily be assessed by reference to the facts which the Contracting State knew or should have known when it extradited the persons concerned. When extradition is deferred following an indication by the Court under Rule 39, the risk of a flagrant denial of justice must also be assessed in the light of the information available to the Court when it considers the case.

15 2. Jurisprudence ECtHR, Salah Sheekh v. The Netherlands, case no. 1948/04, judgment of section by 11th January 2007: 136. The establishment of any responsibility of the expelling State under Article 3 inevitably involves an assessment of conditions in the receiving country against the standards of Article 3 of the Convention (...). In determining whether it has been shown that the applicant runs a real risk, if expelled, of suffering treatment proscribed by Article 3, the Court will assess the issue in the light of all the material placed before it, or, if necessary, material obtained proprio motu, in particular where the applicant or a third party within the meaning of Article 36 of the Convention provides reasoned grounds which cast doubt on the accuracy of the information relied on by the respondent Government.

16 In respect of materials obtained proprio motu, the Court considers that, given the absolute nature of the protection afforded by Article 3, it must be satisfied that the assessment made by the authorities of the Contracting State is adequate and sufficiently supported by domestic materials as well as by materials originating from other reliable and objective sources such as, for instance, other Contracting or non-contracting States, agencies of the United Nations and reputable non-governmental organisations.

17 In its supervisory task under Article 19 of the Convention, it would be too narrow an approach under Article 3 in cases concerning aliens facing expulsion or extradition if the Court, as an international human rights court, were only to take into account materials made available by the domestic authorities of the Contracting State concerned, without comparing these with materials from other reliable and objective sources.

18 This further implies that, in assessing an alleged risk of treatment contrary to Article 3 in respect of aliens facing expulsion or extradition, a full and ex nunc assessment is called for as the situation in a country of destination may change in the course of time. Since the nature of the Contracting States' responsibility under Article 3 in cases of this kind lies in the act of exposing an individual to the risk of ill-treatment, the existence of the risk must be assessed primarily with reference to those facts which were known or ought to have been known to the Contracting State at the time of the expulsion (...).

19 2. Jurisprudence ECtHR, Saadi v. Italy, case no /06, decision of the Grand Chamber by 28th February 2008: ii. Material used to assess the risk of exposure to treatment contrary to Article 3 of the Convention 128. In determining whether substantial grounds have been shown for believing that there is a real risk of treatment incompatible with Article 3, the Court will take as its basis all the material placed before it or, if necessary, material obtained proprio motu (...). In cases such as the present the Court's examination of the existence of a real risk must necessarily be a rigorous one (...).

20 131. To that end, as regards the general situation in a particular country, the Court has often attached importance to the information contained in recent reports from independent international humanrights-protection associations such as Amnesty International, or governmental sources, including the US State Department (...). At the same time, it has held that the mere possibility of ill-treatment on account of an unsettled situation in the receiving country does not in itself give rise to a breach of Article 3 (...) and that, where the sources available to it describe a general situation, an applicant's specific allegations in a particular case require corroboration by other evidence (...).

21 133. With regard to the material date, the existence of the risk must be assessed primarily with reference to those facts which were known or ought to have been known to the Contracting State at the time of expulsion. However, if the applicant has not yet been extradited or deported when the Court examines the case, the relevant time will be that of the proceedings before the Court (...).

22 2. Jurisprudence ECtHR, Gafarov v. Russia, case no /09, judgment of the First Section of 21st October 2010: summary of the previous adjudication 114. It is in principle for the applicant to adduce evidence capable of proving that there are substantial grounds for believing that, if the measure complained of were to be implemented, he would be exposed to a real risk of being subjected to treatment contrary to Article 3 (...). Where such evidence is adduced, it is for the Government to dispel any doubts about it (...).

23 115. As regards the general situation in a particular country, the Court has held on several occasions that it can attach certain importance to the information contained in recent reports from independent international human-rights-protection associations such as Amnesty International, or governmental sources, including the US State Department (see, Saadi, cited above, 131, with further references). At the same time, the mere possibility of ill-treatment on account of an unsettled situation in the receiving country does not in itself give rise to a breach of Article 3 (ibid).

24 118. The Court reiterates that in cases where an applicant provides reasoned grounds which cast doubt on the accuracy of the information relied on by the respondent Government, the Court must be satisfied that the assessment made by the authorities of the Contracting State is adequate and sufficiently supported by domestic materials as well as by materials originating from other reliable and objective sources such as, for instance, other Contracting or non-contracting States, agencies of the United Nations and reputable non-governmental organisations (...).

25 130. In this connection the Court points out that evidence from a number of objective sources describes a disturbing situation in Tajikistan. In particular, the UN Committee against Torture, the US Department of State, Amnesty International and Human Rights Watch (...).

26 2. Jurisprudence ECtHR, M.S.S. v. Belgium and Greece, case no /09, judgment of the Grand Chamber by 21st January first of all that numerous reports and materials have been added to the information available to it when it adopted its K.R.S. decision in These reports and materials, based on field surveys, all agree as to the practical difficulties involved in the application of the Dublin system in Greece, the deficiencies of the asylum procedure and the practice of direct or indirect refoulement on an individual or a collective basis.

27 348. The authors of these documents are the UNHCR and the Council of Europe Commissioner for Human Rights, international non-governmental organisations like Amnesty International, Human Rights Watch, Pro-Asyl and the European Council on Refugees and Exiles, and non-governmental organisations present in Greece such as Greek Helsinki Monitor and the Greek National Commission for Human Rights (...). The Court observes that such documents have been published at regular intervals since 2006 and with greater frequency in 2008 and 2009, and that most of them had already been published when the expulsion order against the applicant was issued.

28 352. In these conditions the Court considers that the general situation was known to the Belgian authorities and that the applicant should not be expected to bear the entire burden of proof. (...)

29 359. The Government argued that the applicant had not sufficiently individualised, before the Belgian authorities, the risk of having no access to the asylum procedure and being sent back by the Greek authorities. The Court considers, however, that it was in fact up to the Belgian authorities, faced with the situation described above, not merely to assume that the applicant would be treated in conformity with the Convention standards but, on the contrary, to first verify how the Greek authorities applied their legislation on asylum in practice. Had they done this, they would have seen that the risks the applicant faced were real and individual enough to fall within the scope of Article 3. The fact that a large number of asylum seekers in Greece find themselves in the same situation as the applicant does not make the risk concerned any less individual where it is sufficiently real and probable (...).

30 2. Jurisprudence ECtHR, I. v. Sweden, case no /09, judgment by the Fifth Section by 5 th September 2013: In par the Court refers to the following sources: - Report by the CoE High Commissioner for Human Rights to the North Caucasus in May US State Department Human Rights Report - Swiss Refugee Council - Danish Immigration Service report - Guidelines by ECRE

31 56. In determining whether it has been shown that an applicant runs a real risk of suffering treatment proscribed by Article 3 the Court examines the foreseeable consequences of sending an applicant to the country of destination, bearing in mind the general situation there and his personal circumstances. It will do so by assessing the issue in the light of all material placed before it, or, if necessary, material obtained on its own initiative (see H.L.R v. France, 29 April 1997 and Hirsi Jamaa and Others v. Italy, 23 February 2012, par. 116). ( ) 57. The Court must be satisfied that the assessment made by the authorities of the Contracting State is adequate and sufficiently supported by domestic materials as well as by materials originating from other reliable and objective sources such as, for instance, other Contracting or non-contracting States, agencies of the United Nations and reputable non-governmental organisations (see, NA. v. UK...56).

32 2. Jurisprudence ECtHR, Chankayev v. Azerbaijan, case no /12, judgment of the First Section by 14st November 2013 (expulsion to Russia) COI refered to: UN Committee against Torture Shadow report by Russian (not further specified) NGO's Summary of the previous jurisprudence: 65. ( ) To that end, as regards the general situation in a particular country, the Court has often attached importance to the information originating from various reliable and objective sources such as, for instance, agencies of the United Nations, reputable domestic or international human-rights protection associations, or other Contracting or non-contracting States (see, for example, Chahal v. UK, 15 November 1996, , ; Saadi v. Italy [GC], no /06, ; and Ismoilov and Others v. Russia, no. 2947/06, , 24 April 2008). The Court has also taken into account reports by the Commissioner for Human Rights of the Council of Europe (...).

33 66. It is in principle for the applicant to adduce evidence capable of proving that there are substantial grounds for believing that, if the measure complained of were to be implemented, he or she would be exposed to a real risk of being subjected to treatment contrary to Article 3. Where such evidence is adduced, it is for the Government to dispel any doubts raised by it (...). 67. With regard to the material date, the existence of a risk must be assessed primarily with reference to those facts which were known or ought to have been known to the Contracting State at the time of extradition. However, if the applicant has not yet been removed when the Court examines the case, the relevant time will be that of the proceedings before the Court (see Saadi and Chahal). A full and ex nunc assessment is called for, as the situation in a country of destination may change over the course of time. Even though the historical position is of interest insofar as it may shed light on the current situation and its likely evolution, it is the present conditions which are decisive (see Salah Sheekh...).

34 92. The relevance of the reports and proposals for amendment of Regulation No 343/2003 emanating from the Commission should be noted these must be known to the Member State which has to carry out the transfer, given its participation in the work of the Council of the European Union, which is one of the addressees of those documents.

35 2. Jurisprudence CJEU, M.M. v. Ireland, judgment of the First Chamber by 22 nd November 2012, case C-277/11:63 As is clear from its title, Article 4 of Directive 2004/83 relates to the assessment of facts and circumstances. 64 In actual fact, that assessment takes place in two separate stages. The first stage concerns the establishment of factual circumstances which may constitute evidence that supports the application, while the second stage relates to the legal appraisal of that evidence, which entails deciding whether, in the light of the specific facts of a given case, the substantive conditions laid down by Articles 9 and 10 or Article 15 of Directive 2004/83 for the grant of international protection are met.

36 65 Under Article 4(1) of Directive 2004/83, although it is generally for the applicant to submit all elements needed to substantiate the application, the fact remains that it is the duty of the Member State to cooperate with the applicant at the stage of determining the relevant elements of that application. 66 This requirement that the Member State cooperate therefore means, in practical terms, that if, for any reason whatsoever, the elements provided by an applicant for international protection are not complete, up to date or relevant, it is necessary for the Member State concerned to cooperate actively with the applicant, at that stage of the procedure, so that all the elements needed to substantiate the application may be assembled. A Member State may also be better placed than an applicant to gain access to certain types of documents.

37 67 Moreover, the interpretation set out in the previous paragraph finds support in Article 8(2)(b) of Directive 2005/85, pursuant to which Member States are to ensure that precise and up-to-date information is obtained on the general situation prevailing in the countries of origin of applicants for asylum and, where necessary, in countries through which they have transited. 68 It is thus clear that Article 4(1) of Directive 2004/83 relates only to the first stage mentioned in paragraph 64 of this judgment, concerning the determination of the facts and circumstances qua evidence which may substantiate the asylum application.

38 3. Standards UNHCR, February 2004: Country of Origin Information: Towards Enhanced International Cooperation (extend version of a report by UNHCR within the ERF-project: Provision of Country of Origin Information and related information ( aim of COI (9 14) sources (assessment of reliability 47-50, selection and evaluation 24 27) transparency and confidentiality (18-34)

39 3. Standards Austrian Center for Country of Origin and Asylum Research and Documentation (ACCORD) training manual on Research on Country of Origin Information 2004 ( four quality standards: 1. relevance 2. reliability and balance 3. accuracy and actuality 4. transparency

40 3. Standards International Association of Refugee Law Judges IARLJ, 2006, position paper Judicial Criteria for Assessing Country of Origin Information (COI): A Checklist, Paper for the 7 th Biennial IARLJ World Conference, Mexico City November 2006: COI JUDICIAL CHECKLIST When assessing Country of Origin Information (COI) in the context of deciding asylum or asylum-related cases judges may find the following 9 questions useful: Relevance and adequacy of the Information i) How relevant is the COI to the case in hand? ii) Does the COI source adequately cover the relevant issue(s)? iii) How current or temporally relevant is the COI?

41 Source of the Information iv) Is the COI material satisfactorily sourced? v) Is the COI based on publicly available and accessible sources? vi) Has the COI been prepared on an empirical basis using sound methodology? Nature / Type of the Information Vii) Does the COI exhibit impartiality and independence? viii) Is the COI balanced and not overly selective? Prior Judicial Scrutiny ix) Has there been judicial scrutiny by other national courts of the COI in question?

42 3. Standards Common EU Guidelines for Processing Country of Origin Information, April 2008: ( or Relevance: pertinent to the matter, fact, event, or situation in question. Reliability: trustworthy to the matter, fact, event, or situation in question. Currency: up-to-date or the most recent information available and where the events in question have not changed since the release of the information.

43 Objectivity: not influenced by emotions, personal prejudices, interests or biases. Accuracy: conformity of a statement, or opinion, or information to the factual reality or truth. Traceability: the degree to which the primary and/or original source of a piece of information can be identified. Transparency: the quality of the information is clear, non equivocal and intelligible.

44 3. Material EASO, European Asylum Support Office, Country of Origin report methodology, July 2012, Basic standards: - Neutrality and objectivity (factual information from existing resources) - Usability (topics addressed relevant to target group, logical and clear structure, unambigous conclusions - Validity (reliable resources, crosscheck, primary resources) -Transparancy and publicity (open source, avaiable online and hardcopy, adequate and visible terms of reference, cited sources) - Quality control (mechanism to encourage authors to stick to standards, by peer review group)

45 4. Database: MedCOI, initiated by the medical service of the migration authority,, in EU Member States (Belgium, Bulgaria; Denmark, Germany, Finland, Ireland, Italy, Lithuania, Netherlands, Austria, Switzerland, Sweden, Slovakia, Slowenia, Czeck Repuplic, UK) and the International Center for Migration Policy Development ICMPD participated in the project European Database of Asylum Law EDAL, relevant case law in English and the Member State's national language; link to or full text of the original judgment

46 AIDA, Asylum Information Database by the European Council on Refugees and Exiles ECRE in co-operation with Forum Refugiés Cosi, Hungarian Helsinki Committe and the Irish Refugee Council; ECOI, European Country of Origin Information Network by ACCORD, UNHCR, European Commission, Informationsverbund Asyl&Migration, Austrian Red Cross, Austrian Ministry of Interior;

47 UNHCR refworld Country Information; Germany: Asylfact, centralised service under the justice adminsitration of the federal state of Hessia, located at the administrative court Wiesbaden, Co-operation with some German federal states and Austria ( asylfact) Federal Office for Migration and Refugees ( MILo-database, version 5.0 accessible for all German admin courts and asylum authorities from 23 Member States, guest access