Speech. Martin Kuijer

Transcription

1 Check against delivery Speech The ECHR and Fundamental Rights Protection in Asylum Cases Martin Kuijer European Judicial Training Network (EJTN) and the Finnish ministry of Justice Helsinki, 10 November 2016

2 Ladies and gentlemen, It is a true honour to join you today in this training on European asylum law and I would like to thank the organisers for their kind invitation. It is a pleasure to be in Helsinki for the first time! When preparing for this lecture I looked into the relationship between my own country, The Netherlands, and Finland. I stumbled across a website called If it were my home. And therefore I can know tell you that if the Netherlands were your home instead of Finland you would - have 20,7% more free time - make 20,6% more money - live 1,4 years longer But: - be 26,4% more likely to be in prison; and - be 2,5% more likely to be unemployed. Even though the example is frivolous, it shows that there are many reasons for migration. Some of them are of course far more serious. When Finland fought two wars with the Soviet Union between 1939 to 1944, Sweden which remained neutral took in more than 70,000 war children from Finland for safety. Modern-day Europe is equally confronted with people fleeing their countries of origin. However, the legal framework applicable to refugees and asylum seekers has changed dramatically following the end of the Second World War. The European countries (of which 22 are represented here today) have committed themselves to a solid legal framework in the field of fundamental rights. Which brings me to the aspect of our shared heritage I will discuss today, the European Convention on Human Rights.

3 In my presentation, I have been asked to provide you with an overview of the applicable case-law of the European Court of Human Rights. I will make a few introductory comments on Article 3 of the European Convention on Human Rights in asylum matters and then focus on some more specific areas such as the case-law relating to the protection of the outer frontiers of Europe, the Dublin-system, reception facilities and asylum procedures. But first, let me make a few more general comments about the backdrop of this conference. The backdrop The organisation of this conference is very timely indeed. The European countries are facing an unprecedented influx of refugees, asylum seekers and illegal migrants. The number of first time asylum applicants increased by 40 % in the second quarter of 2016 compared with the same quarter of 2015, while it slightly increased by 6 % compared with the first quarter of Overall, the number of persons seeking asylum from non-eu countries in the EU-28 during the second quarter of 2016 reached This was more than in the same quarter of 2015.

4 Eurostat Asylum quarterly report Most asylum seekers are from Syria (some applications), Afghanistan (some applications) and Iraq (some applications). Syrians have received by far the highest number of protection statuses in the EU, including protection based on national legislations (a 98% rate of recognition). With regard to Iraqis the percentage is approximately 60% and with regard to Afghanistan the percentage is a little bit more than 50%. The growing number of asylum seekers is felt throughout Europe as a whole, as this map is showing.

5 Business Insider

6 While countries in the southern part of Europe are the primary ports of entry into the European Union (the sea routes entering into Italy, Greece and Spain and the route over land via Turkey to Bulgaria), other countries have primarily been countries of transit (most notably Hungary and Austria, although these countries have seen a huge increase in the numbers of asylum requests themselves in 2015).

7 The highest number of first time asylum applicants in 2016 was registered in Germany (with more than first time applicants, or 61% of total applicants in the EU Member States), followed by Italy (9%), France (6%), Hungary (5%) and Greece (4%). These 5 Member States together account for 85% of all first time applicants in the EU-28. Noteworthy is also Croatia which despite the small absolute number of first time applicants has recorded the largest relative increase of 13 times more first time asylum applicants in the second quarter of 2016 compared with the same quarter of At the same time, we need to realise that some 85% of all displaced persons find refuge in the direct region. Turkey has hosted some 1.9 million Syrian refugees and 25% of Lebanon s population now consists of Syrian refugees.

8 Be that as it may, the new refugee crisis as it has been named has led to the introduction of some fairly unorthodox measures in various countries especially with regard to asylum procedures, reception facilities and border control. Others are considering the introduction of new policies. It has equally led to a considerable strain on some governmental services, such as immigration authorities, but also on judicial authorities. And not least it has led to societal and political tensions where some argue that the new asylum seekers will compete with residents for jobs and/or social benefits, might threaten European security and eventually will threaten the very identity of Europe. Even though most experts agree that migration is to be welcomed given the projected demographic trends in the EU and the consequent implications for the economy and especially the labour market. 1 There is much more to say about the backdrop of this conference, but let me now focus on the legal guidance that is offered by the case law of the European Court of Human Rights. I will commence by making some general comments about the case-law on Article 3 of the Convention in asylum matters. Some general remarks concerning Article 3 ECHR in asylum matters Absolute nature of the provision The prohibition enshrined in Article 3 of the Convention is absolute. It is formulated without the possibility of exceptions (for example for the sake of public order or national security). It is non-derogable in times of war or public emergency, as clarified by Article 15 of the Convention. This means that the provision is applicable irrespective of the person s 1 In 2080 the percentage of pensioners will have risen to 28.7% (17.9% in 2012); the ratio of people dependent of the active labour market will be 51% [Eurostat].

9 conduct. There is no room for balancing the risk of ill-treatment against the reasons for expulsion in determining whether a State's responsibility under Article 3 is engaged. ECHR 15 November 1996, Chahal v. the United Kingdom (appl. no /93) 75. The Court notes that the deportation order against the first applicant was made on the ground that his continued presence in the United Kingdom was unconducive to the public good for reasons of national security, including the fight against terrorism. The parties differed as to whether, and if so to what extent, the fact that the applicant might represent a danger to the security of the United Kingdom affected that State's obligations under Article Article 3 enshrines one of the most fundamental values of democratic society. The Court is well aware of the immense difficulties faced by States in modern times in protecting their communities from terrorist violence. However, even in these circumstances, the Convention prohibits in absolute terms torture or inhuman or degrading treatment or punishment, irrespective of the victim's conduct. [...] Article 3 makes no provision for exceptions and no derogation from it is permissible under Article 15 even in the event of a public emergency threatening the life of the nation [ ]. 80. The prohibition provided by Article 3 against ill-treatment is equally absolute in expulsion cases. Thus, whenever substantial grounds have been shown for believing that an individual would face a real risk of being subjected to treatment contrary to Article 3 if removed to another State, the responsibility of the Contracting State to safeguard him or her against such treatment is engaged in the event of expulsion [ ]. In these circumstances, the activities of the individual in question, however undesirable or dangerous, cannot be a material consideration. The protection afforded by Article 3 is thus wider than that provided by Articles 32 and 33 of the United Nations 1951 Convention on the Status of Refugees. This position has been re-affirmed by the Grand Chamber of the Court in the 2008 judgment in the case of Saadi v. Italy. In paragraph 127 the Court states: As the prohibition of torture and of inhuman or degrading treatment or punishment is absolute, irrespective of the victim s conduct, the nature of the offence allegedly committed by the applicant is therefore irrelevant for the purposes of Article 3. The judgment is also interesting because the Court had to address the issue of diplomatic assurances. While the application was pending

10 before the Strasbourg Court, the Italian Government asked the Tunisian Government, through the Italian embassy in Tunis, for diplomatic assurances that the applicant would not be subjected to treatment contrary to Article 3 of the Convention. However, the Tunisian authorities did not provide such assurances. The Court continued by saying that even if such diplomatic assurances would have been given, this would not have absolved the Court from the obligation to examine whether such assurances provided, in their practical application, a sufficient guarantee that the applicant would be protected against the risk of treatment prohibited by the Convention. ECHR [GC] 28 February 2008, Saadi v. Italy (appl. no /06) 127. [...] As the prohibition of torture and of inhuman or degrading treatment or punishment is absolute, irrespective of the victim s conduct, the nature of the offence allegedly committed by the applicant is therefore irrelevant for the purposes of Article Furthermore, it should be pointed out that even if, as they did not do in the present case, the Tunisian authorities had given the diplomatic assurances requested by Italy, that would not have absolved the Court from the obligation to examine whether such assurances provided, in their practical application, a sufficient guarantee that the applicant would be protected against the risk of treatment prohibited by the Convention. The weight to be given to assurances from the receiving State depends, in each case, on the circumstances obtaining at the material time. A further clarification concerning these diplomatic assurances was given by the Court in 2012 in the Abu Qatada case. 2 The judgment became famous (or infamous depending on one s perspective) because the Court found a violation of Article 6 of the Convention. There was a real risk that the applicant would be convicted in Jordan on the basis of third party evidence obtained through means of torture. As this would constitute a flagrant denial of justice the Court found that the Convention would be violated if the applicant were to be handed over to the Jordan authorities. 2 See also ECHR 23 October 2008, Soldatenko v. Ukraine (appl. no. 2440/07).

11 But the judgment did not find a violation of Article 3 of the Convention because the Court considered the diplomatic assurances obtained by the UK authorities to be sufficient. It referred to the applicable criteria. ECHR 17 January 2012, Abu Qatada v. the United Kingdom (appl. no. 8139/09) : In assessing the practical application of assurances and determining what weight is to be given to them, the preliminary question is whether the general human rights situation in the receiving State excludes accepting any assurances whatsoever. However, it will only be in rare cases that the general situation in a country will mean that no weight at all can be given to assurances. More usually, the Court will assess first, the quality of assurances given and, second, whether, in light of the receiving State s practices they can be relied upon. In doing so, the Court will have regard, inter alia, to the following factors: (i) whether the terms of the assurances have been disclosed to the Court; (ii) whether the assurances are specific or are general and vague; (iii) who has given the assurances and whether that person can bind the receiving State; (iv) if the assurances have been issued by the central government of the receiving State, whether local authorities can be expected to abide by them; (v) whether the assurances concerns treatment which is legal or illegal in the receiving State; (vi) whether they have been given by a Contracting State; (vii) the length and strength of bilateral relations between the sending and receiving States, including the receiving State s record in abiding by similar assurances; (viii) whether compliance with the assurances can be objectively verified through diplomatic or other monitoring mechanisms, including providing unfettered access to the applicant s lawyers; (ix) whether there is an effective system of protection against torture in the receiving State, including whether it is willing to cooperate with international monitoring mechanisms (including international human rights NGOs), and whether it is willing to investigate allegations of torture and to punish those responsible; (x) whether the applicant has previously been ill-treated in the receiving State; and (xi) whether the reliability of the assurances has been examined by the domestic courts of the sending/contracting State.

12 The unconditional prohibition of Article 3 of the Convention is particularly relevant with regard to the expulsion of persons convicted for or suspected of having committed terrorist offences. Likewise, this body of case-law has relevance for persons against whom article 1 F of the Refugee Convention has been applied, which states that the provisions of the Refugee Convention shall not apply to any person with respect to whom there are serious reasons for considering that he has committed a crime against peace, a war crime, or a crime against humanity. See inter alia ECHR 20 July 2010, A. v. Netherlands (appl. no. 4900/06): the applicant is a Libyan national who applied for asylum in The Netherlands. Following a report by the Dutch General Intelligence and Security Service, he was arrested in August 2002 on suspicion of belonging to a criminal organisation conducting a holy war (jihad) against the Netherlands. He was acquitted of all charges in June In November 2005, an exclusion order was imposed on him in the Netherlands as he was found to represent a danger to national security. The Court noted that the criminal case against the applicant had been broadly covered in the media and the Libyan authorities had been informed that he had been placed in aliens detention for removal purposes. Consequently, it was likely that once in Libya he would be detained and questioned, and that he risked ill-treatment. ECHR 5 April 2011, Toumi v. Italy (appl. no /09): a Tunesian applicant who had been convicted to six years imprisonment for international terrorism. ECHR 22 September 2011, H.R. v. France (appl. no /09): the applicant had been tried in absentia by Algerian courts in 1999 and sentenced to life imprisonment for establishment of a terrorist group and attempted murder of national security officials. ECHR 30 May 2013, Rafaa v. France (appl. no /10): the Moroccan authorities issued an international arrest warrant against the applicant for acts of terrorism (alleged membership of AQMI, Al-Qaida au Maghreb islamique).

13 The minimum level of severity and the three layers in the provision The absolute prohibition enshrined in Article 3 of the Convention is only applicable if the treatment concerned is above a minimum threshold; otherwise the treatment falls outside the scope of application of the norm. That minimum level of severity may be dependent upon a variety of factors, such as the age, gender, and general state of health of the victim, the duration and frequency of the treatment concerned. 3 If the treatment concerned is of sufficient severity to reach this minimum level a breach of the provision will be found. The only legally relevant issue that remains to be decided is whether the qualification torture, inhuman or degrading is applicable to the case in hand. Torture has never been defined as such, although Article 1 UNCAT is often used as a reference point from which three essential elements can be deduced: 1. the infliction of severe mental or physical pain or suffering; 2. the intentional or deliberate infliction of the pain; 3. the pursuit of a specific purpose, such as gaining information, punishment or intimidation. Ill-treatment that is not torture, in that it does not have sufficient intensity or purpose, will be classified as inhuman or degrading. Treatment such as to arouse in the victim a feeling of fear, anguish and inferiority capable of humiliating and debasing the victim will be qualified as degrading treatment. 4 Although admittedly, the Court is not very dogmatic in its 3 ECHR 25 March 1993, Costello Roberts v. United Kingdom (appl. no /87). 4 ECHR [GC] 26 October 2000, Kudla v. Poland (appl. no /96), 92.

14 approach to the classification and often only refers to other forms of illtreatment. One may wonder what kind of ill-treatment is required in order to activate the principle of non-refoulement in the Strasbourg case-law. In view of the absolute character of the provision, one might expect that every form of ill-treatment above the minimum level of severity will be prohibited. And there are precedents in the Strasbourg case-law that suggest that also degrading treatment would be sufficient to activate the protection offered by Article 3 of the Convention. ECHR 22 June 2006, D. a.o. v. Turkey (appl. no /03) 45. L interdiction énoncée à l article 3 est tout aussi absolue en matière d expulsion. La Cour se doit d insister tout particulièrement sur le fait que le recours à des formes de peines, y compris les châtiments judiciaires corporels, contraires à cette disposition n est aucunement admissible. Ainsi, chaque fois qu il y a des motifs sérieux et avérés de croire qu une personne courra, dans le pays de destination, un risque réel d être soumise à un tel traitement, la responsabilité de l Etat contractant est engagée en cas d expulsion [ ]. 49. Comme la Cour l a déjà énoncé, un châtiment corporel peut se révéler incompatible avec la dignité et l intégrité physique de la personne, notions protégées par l article 3 de la Convention. Pour qu une peine soit «dégradante» et enfreigne cette disposition, l humiliation ou l avilissement dont elle s accompagne, doivent se situer à un niveau particulier et différer en tout cas de l élément habituel d humiliation inhérent à chaque peine. However, besides such an occasional exception, I think it is fair to say that the European Court will only find a violation of the Convention in case there is a real risk of serious ill-treatment. See ECHR [dec] 28 February 2006, Z. and T. v. United Kingdom (appl. no /05) As a result, protection is offered to those who have a substantiated claim that they will either suffer persecution for, inter alia, religious reasons or will be at real risk of death or serious illtreatment, and possibly flagrant denial of a fair trial or arbitrary detention, because of their religious affiliation (as for any other reason).

15 The case-law in which state responsibility under Article 3 is engaged as a result of the intention to expel The Soering doctrine State responsibility of a High Contracting Party as a result of the human rights violations that are likely to occur in a third country was first established in the Soering case. In this case, the United States sought the extradition from the United Kingdom of a fugitive who faced murder charges in the state of Virginia. The Court ruled that the real risk that the applicant would be faced with inhuman treatment as a result of the socalled death row phenomenon if the United Kingdom authorities were to extradite the applicant to the United States gave rise to a violation of Article 3. This doctrine developed in the context of extradition was subsequently used in the field of expulsions. ECHR 7 July 1989, Soering v. the United Kingdom (appl. no /88) 88. [ ] It would hardly be compatible with the underlying values of the Convention, that "common heritage of political traditions, ideals, freedom and the rule of law" to which the Preamble refers, were a Contracting State knowingly to surrender a fugitive to another State where there were substantial grounds for believing that he would be in danger of being subjected to torture, however heinous the crime allegedly committed. Extradition in such circumstances, while not explicitly referred to in the brief and general wording of Article 3, would plainly be contrary to the spirit and intendment of the Article, and in the Court s view this inherent obligation not to extradite also extends to cases in which the fugitive would be faced in the receiving State by a real risk of exposure to inhuman or degrading treatment or punishment proscribed by that Article.

16 Application of the Soering doctrine in expulsion cases There are roughly three situations in which failed asylum seekers may successfully claim protection under Article 3 of the Convention, which I will introduce in chronologically reverse order. The most far-reaching level of protection was introduced in 2009: the general situation of violence. Such a general situation of violence will not normally in itself entail a violation of Article 3 in the event of an expulsion. However, the Court has never excluded the possibility that the general situation of violence in (parts of) a country of destination may be of a sufficient level of intensity as to entail that any removal to it would necessarily breach Article 3 of the Convention. Nevertheless, the Court would adopt such an approach only in the most extreme cases of general violence, where there was a real risk of ill-treatment simply by virtue of an individual being exposed to such violence on return. See ECJ C-465/07, preliminary ruling of 17 January 2009 (Elgafaji) in which the ECJ held that the protection offered by article 15(c) of the Qualification Directive went beyond that of Article 3 of the Convention: Article 15(c) of the Directive, in conjunction with article 2(e) of the Directive, must be interpreted as meaning that the existence of a serious and individual threat to the life or person of an applicant for subsidiary protection is not subject to the condition that that applicant adduce evidence that he is specifically targeted by reason of factors particular to his personal circumstances, and the existence of such a threat can exceptionally be considered to be established where the degree of indiscriminate violence characterising the armed conflict taking place... reaches such a high level that substantial grounds are shown for believing that a civilian, returned to the relevant country or as the case may be, to the relevant region, would, solely on account of his presence on the territory of that country or region, face a real risk of being subject to that threat. ECHR 20 January 2009, F.H. v. Sweden (appl. no /06), in which the ECHR introduces the possibility that in the most extreme cases of general violence Article 3 of the Convention offers a similar protection as that of Article 15(c) of the Qualification Directive. However, the general situation in Iraq was considered not to meet this test.

17 ECHR [dec] 7 April 2009, Ghulami v. France (appl. no /05), in which a similar conclusion was drawn with regard to Afghanistan. ECHR 28 June 2011, Sufi and Elmi v. the United Kingdom (appl. nos. 8319/07 & 11449/07): the violence in Mogadishu is of such a level of intensity that anyone in the city, except possibly those who are exceptionally well-connected to powerful actors, would be at real risk of treatment prohibited by Article 3 of the Convention. The second layer was introduced by the Court in the Dutch Salah Sheekh judgment in 2007: establishing membership of a vulnerable group is sufficient to activate the protection of Article 3 of the Convention. The Court's findings in that case as to the treatment of the Ashraf clan in certain parts of Somalia, and the fact that the applicant's membership of the Ashraf clan was not disputed, were sufficient for the Court to conclude that his expulsion would be in violation of Article 3. See ECHR 11 January 2007, Salah Sheekh v. Netherlands (appl. no. 1948/04) ECHR 17 July 2008, NA v. the United Kingdom (appl. no /07) The third layer concerns the classic situation in which the applicant has to adduce special distinguishing features relating to his or her personal situation. See ECHR 30 October 1991, Vilvarajah v. the United Kingdom (appl. no /87)

18 Danger emanating from persons or groups of persons who are not public officials Traditionally, the legal norm enshrined in Article 3 of the Convention applies to situations in which the applicant has to fear from the authorities of the country to which he will be expelled. However, Article 3 may also become applicable if the alleged treatment emanates from persons or groups of persons who are not public officials. Precondition is that the authorities of the receiving state are not able to obviate the risk by providing appropriate protection. See ECHR 29 April 1997, H.L.R. v. France (appl. no /94) 38. The Court notes that on 14 May 1989 the applicant, who was travelling from Colombia to Italy, was arrested in possession of drugs while in transit at Roissy Airport. On being convicted of drug trafficking, he was sentenced to a term of imprisonment and an order was made permanently excluding him from French territory. While in detention, he gave the names of three drug traffickers, which subsequently enabled one of them to be identified on the basis of the information the applicant had provided. The order for the applicant's deportation was made on 26 April 1994 on the ground that his presence on French territory represented a serious threat to public order. He is currently subject to a compulsory residence order in France. 39. It is therefore necessary to examine whether the foreseeable consequences of H.L.R.'s deportation to Colombia are such as to bring Article 3 into play. In the present case the source of the risk on which the applicant relies is not the public authorities. According to the applicant, it consists in the threat of reprisals by drug traffickers, who may seek revenge because of certain statements that he made to the French police, coupled with the fact that the Colombian State is, he claims, incapable of protecting him from attacks by such persons. 40. Owing to the absolute character of the right guaranteed, the Court does not rule out the possibility that Article 3 of the Convention may also apply where the danger emanates from persons or groups of persons who are not public officials. However, it must be shown that the risk is real and that the authorities of the receiving State are not able to obviate the risk by providing appropriate protection. ECHR 11 January 2007, Salah Sheekh v. Netherlands (appl. no. 1948/04) The existence of the obligation not to expel is not dependent on whether the source of the risk of the treatment stems from factors which involve the responsibility, direct or indirect, of the

19 authorities of the receiving country, and Article 3 may thus also apply in situations where the danger emanates from persons or groups of persons who are not public officials. Internal flight alternative Refugee status is on occasion denied to asylum seekers because there is an alternative location within the country of origin where they are not deemed to face persecution. Article 8 of the EU Qualification Directive 2004/83/EC allows such a denial. Equally, the European Court accepts the possibility of invoking such an internal flight alternative under certain conditions as is clear from the judgment in the Salah Sheekh case. ECHR 11 January 2007, Salah Sheekh v. Netherlands (appl. no. 1948/04) as a pre-condition for relying on an internal flight alternative, certain guarantees have to be in place: the person to be expelled must be able to travel to the area concerned, to gain admittance and be able to settle there, failing which an issue under Article 3 may arise, the more so if in the absence of such guarantees there is a possibility of the expellee ending up in a part of the country of origin where he or she may be subjected to ill-treatment. ECHR 1 June 2006, Jeltsujeva v. Netherlands (appl. no /04) The Court [ ] has found no reason for holding that it cannot be expected from the applicant to settle elsewhere in the Russian Federation than in Chechnya, also bearing in mind that it has not been argued and that it has not appeared that the applicant has in any way attracted the negative attention of the Russian authorities or that, during the period she was living in Rostov, she encountered any difficulties from the side of the authorities or the local population on account of her Chechen origin or religion. [see however ECHR 7 July 2016, R.V. v. France (appl. no /14)]

20 Case-law concerning certain relevant countries of origin Afghanistan Especially the situation of women in Afghanistan has caused concern. The Court has noted in the 2010 judgment N. versus Sweden that, according to reports, around 80% of Afghani women were victims of domestic violence, acts which the authorities regarded as legitimate and therefore did not prosecute. ECHR 20 July 2010, N. v. Sweden (appl. no /09) 55. The Court firstly observes that women are at particular risk of ill treatment in Afghanistan if perceived as not conforming to the gender roles ascribed to them by society, tradition and even the legal system. The UNHCR thus observed that Afghan women, who have adopted a less culturally conservative lifestyle, such as those returning from exile in Iran or Europe, continue to be perceived as transgressing entrenched social and religious norms and may, as a result, be subjected to domestic violence and other forms of punishment ranging from isolation and stigmatisation to honour crimes for those accused of bringing shame to their families, communities or tribes. Actual or perceived transgressions of the social behavioural code include not only social behaviour in the context of a family or a community, but also sexual orientation, the pursuit of a professional career, and mere disagreements as to the way family life is conducted. See also the following cases in which no violation was found: ECHR 13 October 2011, Husseini v. Sweden (appl. no /09) ECHR 29 January 2013, S.H.H. v. United Kingdom (appl. no /10) ECHR 9 April 2013, H. and B. v. United Kingdom (appl. nos /10 & 44539/11) ECHR 5 July 2016, A.M. v. The Netherlands (appl. no /09) Iran With regard to Iran I would like to draw your attention to the judgment in the case of S.F. versus Sweden in which the Court dedicated some more general observations on so-called sur place activities. ECHR 11 July 2000, Jabari v. Turkey (appl. no /98)

21 The applicant, an Iranian national, had fled Iran and gone to Turkey fearing a death sentence by stoning or flogging for adultery, an offence punishable under Islamic law. Violation of Article 3 if the deportation order to Iran were to be enforced. ECHR 22 September 2009, Abdolkhani and Karimnia v. Turkey (appl. no /08) Risk of ill-treatment of former members of the People s Mojahedin Organisation in the event of deportation to Iran or lraq. ECHR 19 January 2010, Z.N.S. v. Turkey (appl. no /08): Christian in Iran ECHR 15 May 2012, S.F. v. Sweden (appl. no /10): sur place activities 68. Turning then to the applicants sur place activity and incidents after they arrived in Sweden, the Court finds that since 2008 they have continuously participated in political activity of intensifying importance. They have appeared with photographs and names on several internet sites and TV broadcasts, where they have expressed, inter alia, their opinions on human rights issues in Iran and criticism against the Iranian regime. They have taken rather leading roles and the second applicant has been the international spokesperson in a European committee for the support of Kurdish prisoners and human rights in Iran. They have expressed their individual views in many articles published on prominent Kurdish internet sites. The Court concludes that the applicants have been involved in extensive and genuine political and human rights activities of relevance for the determination of the risk on return to Iran. 69. To determine whether these activities would expose the applicants to persecution or serious harm if returned to Iran, the Court has regard to the relevant country information on Iran, as set out above. The information confirms that Iranian authorities effectively monitor internet communications and regime critics both within and outside of Iran. It is noted that a specific intelligence Cyber Unit targets regime critics on the internet. Further, according to the information available to the Court, Iranians returning to Iran are screened on arrival. There are a number of factors which indicate that the resources available could be used to identify the applicants and, in this regard, the Court also considers that the applicants activities and alleged incidents in Iran are of relevance. The first applicant s arrest in 2003 as well as his background as a musician and prominent Iranian athlete also increase the risk of his being identified. Additionally, the applicants allegedly left Iran illegally and do not have valid exit documentation. 70. Having considered the applicants sur place activities and the identification risk on return, the Court also notes additional factors possibly triggering an inquiry by the Iranian authorities on return as the applicants belong to several risk categories. They are of Kurdish and Persian origin, culturally active and well-educated.

22 71. Having regard to all of the above, the Court concludes that there are substantial grounds for believing that the applicants would be exposed to a real risk of being subjected to treatment contrary to Article 3 of the Convention if deported to Iran in the current circumstances. Accordingly, the Court finds that the implementation of the deportation order against the applicants would give rise to a violation of Article 3 of the Convention. ECHR 10 October 2013, K.K. v. France (appl. no /11): former member of the Iranian intelligence services, violation ECHR 18 November 2014, M.A. v. Switzerland (appl. no /13): active participation in demonstrations against the Iranian regime, violation Iraq Many of the judgments decided in 2013 in respect of Iraq did not result in the finding of a violation because the Court was convinced that the applicants could reasonably relocate to other regions in Iraq. Recently the Grand Chamber of the Court gave a ruling in the case of J.K. versus Sweden describing the deteriorating situation in Iraq. ECHR 27 June 2013, D.N.M. v. Sweden and S.A. v. Sweden (appl. nos /11 and 66523/10) The applicants alleged in particular that they would be at risk of being the victims of an honour-related crime following their relationships with women which had met with their families disapproval. The Court found that the applicants would not be at risk as a result of the general situation in the country which was slowly improving. Furthermore, although there was evidence to show that the applicants personal circumstances would expose them to a real risk to their lives and/or of inhuman or degrading treatment if removed, the Court held that the applicants could reasonably relocate to other regions in Iraq. ECHR 27 June 2013, A.G.A.M. v. Sweden (appl. no /10): Christianity internal flight alternative ECHR 19 December 2013, B.K.A. v. Sweden (appl. no /10): Sunni Muslim internal flight alternative ECHR [GC] 23 August 2016, J.K. a.o. v. Sweden (appl. no /12) The Court accepted that although the security situation in Baghdad City had deteriorated, the intensity of violence had not reached a level which would constitute, as such, a real risk of treatment contrary to Article 3. It went on to assess whether the applicants personal circumstances were such that they would face such a risk if they were expelled to Iraq.

23 As asylum-seekers were normally the only parties able to provide information about their own personal circumstances, the burden of proof should in principle lie on them to submit, as soon as possible, all evidence relating to their individual circumstances needed to substantiate their application for international protection. However, it was also important to take into account all the difficulties which asylum-seekers could encounter abroad when collecting evidence. Having regard to its previous case-law, Article 4 4 of the EU Qualification Directive and paragraph 19 of the UNHCR Note on Burden and Standard of Proof in Refugee Claims, the Court considered that the fact of past ill-treatment provided a strong indication of a future, real risk of treatment contrary to Article 3 in cases in which an applicant had made a generally coherent and credible account of events that was consistent with information from reliable and objective sources about the general situation in the country at issue. In such circumstances, it would be for the Government to dispel any doubts about that risk. In the applicants case, the Court saw no reason to cast doubt on the Migration Agency s findings that the family had been exposed to the most serious forms of abuses by al-qaeda from 2004 until 2008 while the Iraqi authorities had been unable to provide protection to them. There was a strong indication that they would continue to be at risk from non-state actors in Iraq. The Iraqi authorities capacity to protect their people had to be regarded as diminished. Although the current level of protection might still be sufficient for the general public in Iraq, the situation was different for individuals, such as the applicants, who were members of a targeted group. Conclusion: deportation would constitute a violation (ten votes to seven). Somalia For many years now, the situation in Somalia has been the root cause for many applications brought before the European Court in the field of asylum: Salah Sheekh, Sufi and Elmi, K.A.B. and the most recent precedent is R.H. versus Sweden of 10 September ECHR 10 September 2015, R.H. v. Sweden (appl. no. 4601/14) 66. As has been mentioned above, the Court concluded in K.A.B. v. Sweden that the general situation in Mogadishu was not such that returns to that city would breach Article 3. The question is therefore whether the situation has worsened since then, that is, since September The UNHCR, reporting in January 2014 on the period that had to a large extent been assessed by the Court in K.A.B., found that, while security in Mogadishu had improved during the preceding few years, al-shabaab were still able to stage attacks that caused civilian deaths and injuries every week. In 2013 the outright fighting in the city had gone down, but the number of dead and injured civilians had reportedly increased. Government and allied forces

24 often failed to provide protection or security for civilians and were themselves a source of insecurity. Also in January 2014, the Swedish Migration Board noted that, although the human rights situation was considerably better in areas with a strong presence of AMISOM or the Ethiopian army (thus including Mogadishu) than in areas controlled by al-shabaab, it was still uncertain whether the police, the courts and other authorities were at all functioning. Moreover, SNAF soldiers were reportedly robbing and raping civilians. These assessments were confirmed in the Migration Board s report from April The UN Secretary-General reported in May 2015 that the overall security situation in Somalia remained volatile and that attacks continued in Mogadishu, including casualties among government officials, civilians and security personnel. 67. It is thus clear that the general security situation in Mogadishu remains serious and fragile. The available sources do not, however, indicate that the situation has deteriorated since September For example, in the Danish/Norwegian report of March 2014, the UNDSS and an international NGO were reported as saying that there had been security improvements since April Also the conclusions drawn by the United Kingdom Upper Tribunal in MOJ & Ors suggest that there has been an improvement. Given the high volume of oral and written evidence examined by the Tribunal, the Court considers that its assessment must be accorded great weight. Among other things, the Tribunal concluded that there had been durable change in the sense that the al-shabaab withdrawal from Mogadishu was complete and there was no real prospect of a re-established presence within the city. The indiscriminate bombardments and military offensives mentioned by the Court in its 2011 judgment in Sufi and Elmi v. the United Kindom had been replaced by al-shabaab attacks against carefully selected targets politicians, police officers, government officials and those associated with non-governmental and international organisations that did not include ordinary civilians or diaspora returnees. The Tribunal further considered that the areas and establishments at which these attacks were aimed were largely predictable and could be reasonably avoided by the citizens. Moreover, while the statistical information concerning casualty levels was deficient and unreliable, the cessation of confrontational warfare in Mogadishu and the changed type of attacks by al- Shabaab were found to have reduced the level of civilian casualties since The Tribunal also had regard to the huge number of people returning to the city, where new economic opportunities were available. 68. Consequently, having regard to the information available concerning the present situation in Mogadishu, the Court finds that the assessment made in K.A.B. v. Sweden is still valid. Thus, there is no indication that the situation is of such a nature as to place everyone who is present in the city at a real risk of treatment contrary to Article 3. The Court must therefore establish whether the applicant s personal circumstances are such that her return to Mogadishu would contravene that provision. 69. It must be stressed at the outset that the profile of the present applicant is different from that of the applicant in K.A.B. v. Sweden. While that case concerned a man born in 1960, the

25 present applicant is a woman, born in 1988, who has been living abroad for almost ten years after having left Somalia when she was 17 years of age. 70. The various reports attest to the difficult situation of women in Somalia, including Mogadishu. The UNHCR has identified women and girls as a particular risk group. While there has been legislative progress in the form of the development of a sexual offences bill, there are several concordant reports about serious and widespread sexual and gender-based violence in the country. Not only civilians but also members of SNAF, AMISOM and other armed forces are perpetrators of abuse against women. Women are unable to get protection from the police and the crimes are often committed with impunity, as the authorities are unable or unwilling to investigate and prosecute reported perpetrators. It is also clear that women are generally discriminated against in Somali society and that they hold a subordinate position to men. As shown by the report of the Swedish Migration Board, women are reliant on men in many aspects of societal life. In the Court s view, it may be concluded that a single woman returning to Mogadishu without access to protection from a male network would face a real risk of living in conditions constituting inhuman or degrading treatment under Article 3 of the Convention. See also ECHR 5 September 2013, K.A.B. v. Sweden (appl. no. 886/11) ECHR 28 June 2011, Sufi and Elmi v. United Kingdom (appl. nos. 8319/07 & 11449/07)

26 Other situations in which state responsibility under Article 3 may be engaged in asylum matters Article 3 of the Convention is not only relevant with regard to the principle of non-refoulement. There are various other situations in which the provision may be relevant. I will briefly describe the most common categories. Ill-treatment of asylum seekers/refugees/illegal immigrants by an official When the prohibition of ill-treatment was drafted, the primary purpose of the provision was to fight impunity of those officials who maltreated those under their care. In the case-law of the European Court most allegations relate to police officers but occasionally there have been allegations of illtreatment vis-à-vis asylum seekers, refugees or illegal immigrants. See for example ECHR 17 January 2012, Zontul v. France (appl. no /07) The case concerned an illegal migrant who complained that he had been raped with a truncheon by one of the coastguard officers supervising him, that the authorities had refused to allow him to be examined by a doctor who was on the premises, that the authorities had failed to conduct a thorough, fair and impartial investigation and that those responsible had not been adequately punished, as the Appeals Tribunal had not considered that his rape with a truncheon constituted an aggravated form of torture. Violation Article 3. Detention conditions in alien detention The State must ensure that a person is detained in conditions which are compatible with respect for his human dignity, that the manner and method of the execution of the measure do not subject him to distress or hardship of an intensity exceeding the unavoidable level of suffering inherent in detention and that, given the practical demands of imprisonment, his health and well-being are adequately secured. When assessing conditions of detention, account has to be taken of the cumulative effects of those conditions. Most common deficiencies include overcrowding and insanitary conditions. In this regard, it is

27 important to draw attention to the relevance of the reports and standards of the European Committee for the Prevention of Torture, the Council of Europe s CPT. 5 When interpreting Article 3 of the Convention, the Court is not bound by the findings of the CPT but in practice it does use these findings as a source of inspiration when interpreting Article 3 ECHR. ECHR 22 July 2010, A.A. v. Greece (appl. no /08) Violation of Article 3 on account of the detention of an asylum seeker in dirty conditions in a Greek detention centre. (International) reports had indicated the following problems: overcrowding, extremely cramped and dirty conditions, bathroom facilities shared by men and women and in a state of disrepair, bathroom area immersed in 1 cm of water, no possibility of hospital treatment, defective sewer system, nauseating smells, infectious skin diseases. The fact that A. A. had been held for three months in those conditions constituted degrading treatment in breach of Article 3. ECHR 19 January 2012, Popov v. France (appl. no /07 and 39474/07) Administrative detention of a family for two weeks at the Rouen-Oissel centre in France centre pending their removal to Kazakhstan. The Court found that the authorities had not measured the inevitably harmful effects on the children (aged five months and three years) of being held in a detention centre in conditions that exceeded the minimum level of severity required to fall within the scope of Article 3. ECHR 26 November 2015, Mahamed Jama v. Malta (appl. no /13) According to her submissions, Ms Mahamed Jama was detained in prison-like, poor conditions. In particular she maintained that the detention facility was overcrowded; that it was overheated in summer and unbearably cold in winter; that there was no possibility for any useful activity, et cetera. The Court was concerned about the lack of heating, the lack of female personnel and the lack of outdoor activities, but did not find a violation.. 5 See, for example, the CPT-standards (CPT/Inf/E (2002) 1 - Rev. 2004), to be found on

28 Situations in which Article 3-claims are ordinarily rejected Withholding residence status Some applicants are denied a residence permit while not facing the immediate prospect of being removed from the country concerned. This situation arises when national authorities acknowledge the risk of a violation of Article 3 of the Convention if the applicant were to be expelled, but withhold a residence status as a result of the application of article 1F of the Geneva Convention. The question then arises whether the withholding of a residence status as such is in violation with the Convention. In some Dutch cases the European Court answered this question in the negative. ECHR [dec] 15 September 2005, Bonger v. the Netherlands (appl. no /04) ECHR [dec] 18 October 2011, I. v. the Netherlands (appl. no /11) 39. [...] To the extent that the applicant also complains that he is denied a residence permit for as long as he is not removed from the Netherlands, the Court considers that this complaint must be rejected for being incompatible ratione materiae as neither Article 3 nor any other provision of the Convention and its Protocols guarantees, as such, a right to a residence permit. It follows that this part of the application must be rejected pursuant to Article 35 3 and 4 of the Convention. ECHR 12 January 2016, A.W.Q. & D.H. v. the Netherlands (appl. no /06) Socio-economic misery Applicants who claim the protection offered by Article 3 of the Convention invoking the overall socio-economic misery in their country of origin are usually unsuccessful before the European Court of Human Rights. The Court stated it would only deviate from this point of departure in very exceptional cases because a finding to the contrary would place too great a burden on the Contracting States. ECHR [GC] 27 May 2008, N. v. United Kingdom (appl. no /05)

29 [ ] social and economic differences between countries entail that the level of treatment available in the Contracting State and the country of origin may vary considerably. While it is necessary, given the fundamental importance of Article 3 in the Convention system, for the Court to retain a degree of flexibility to prevent expulsion in very exceptional cases, Article 3 does not place an obligation on the Contracting State to alleviate such disparities [ ]. A finding to the contrary would place too great a burden on the Contracting States. Medical cases? In D. versus the United Kingdom, the Court had to examine the proposed expulsion of a person dying of Aids to his home country where he had no family or material resources, where there was no social welfare provision available to him and no treatment for Aids. The Court found that his expulsion would constitute a violation of Article 3. However, the case-law of the Court in relation to applicants who invoke protection of Article 3 on medical grounds has become very strict. The applicant must be critically ill and/or unfit to travel, while access to medical treatment or medication in the receiving country must be practically unavailable. ECHR 2 May 1997, D. v. United Kingdom (appl. no /96) ECHR [GC] 27 May 2008, N. v. United Kingdom (appl. no /05) 42. [ ] The fact that the applicant's circumstances, including his life expectancy, would be significantly reduced if he were to be removed from the Contracting State is not sufficient in itself to give rise to breach of Article 3. The decision to remove an alien who is suffering from a serious mental or physical illness to a country where the facilities for the treatment of that illness are inferior to those available in the Contracting State may raise an issue under Article 3, but only in a very exceptional case, where the humanitarian grounds against the removal are compelling. In the D. case the very exceptional circumstances were that the applicant was critically ill and appeared to be close to death, could not be guaranteed any nursing or medical care in his country of origin and had no family there willing or able to care for him or provide him with even a basic level of food, shelter or social support. ECHR 27 February 2014, S.J. v. Belgium (appl. no /10) 123. The Court is mindful of the fact that access to medication in Nigeria is haphazard and that, owing to a lack of resources, most of the persons who need it do not have access to

30 treatment for Aids free of charge. It is also aware as attested, if need be, by the medical certificates produced by the applicant to the domestic authorities and the Court that for the applicant, as for anyone living with HIV in her situation, being deprived of essential medication could result in the deterioration of her condition and even place her life at risk in the short or medium term Nevertheless, the Court also notes that, according to the medical certificates issued in 2012 and 2013, the applicant s condition is currently under control as a result of the medication administered at the University Hospital, and that the applicant has not developed any opportunistic infections. She is therefore not critically ill and is fit to travel. In the light of the principles reiterated above (see paragraphs 119 to 120), which the Court considers it necessary to apply in the present case, the information in the case file does not enable it to conclude that the threshold of severity required by Article 3 of the Convention has been attained. ECHR 17 April 2014, Paposhvili v. Belgium (appl. no /10) currently pending before the Grand Chamber! The applicant suffers from tuberculosis, hepatitis C and chronic lymphocytic leukaemia (CLL). By a judgment of 17 April 2014 a Chamber of the Court concluded unanimously that there would be no violation of Article 3 in the event of the applicant s deportation to Georgia. The conditions from which the applicant suffered had all stabilised and were under control, there was therefore no imminent threat to his life and he was fit to travel. On 20 April 2015 the case was referred to the Grand Chamber at the applicant s request. Possibility of indicating an interim measure During the drafting process of the Convention the High Contracting Parties could not agree on a specific provision empowering the Court to take interim measures. However, especially within the framework of an international tribunal dealing with human rights violations it is of the utmost importance in order to be able to offer effective protection to applicants to prevent that irreparable damage occurs during court proceedings. Despite any explicit power, the Court provided for the possibility of indicating interim measures in its rules of procedure (after the entry into force of the 11th Protocol Rule 39). However, the Court always ruled that the power to order binding interim measures could not

31 be inferred from the Convention. This did not change with the introduction of the 11th Protocol (the last sentence of Article 34 ECHR merely refers to the duty of the Contracting Parties not to hinder in any way the effective exercise of the right of individual application). However, the Court changed its position. In the Mamatkulov case, the Court held that interim measures of the Court can be legally binding on High Contracting Parties if non-compliance would result in irreparable damage. In practice, non-compliance with interim measures is very exceptional. ECHR 4 February 2005, Mamatkulov v. Turkey (appl. nos /99 & 46951/99) I would like to draw your attention to the fact that the Court publishes sixmonthly statistics indicating how many requests for interim measures have been accepted and rejected. The statistics which may be found on the Court s website, show the respective countries of destination.

32 Human rights at Europe s frontiers A lot can be said about Fortress Europe as the legal ways for people in need of international protection to reach Europe are limited. One of the most recent developments is the development of the European Border and Coast Guard which was officially launched on 6 October But in my presentation, I will only focus on the ECHR-related aspects of the upholding of human rights standards at Europe s borders. Let me first say a couple of words about the sea route that has cost over 3000 people in 2014 their lives while trying to cross the Mediterranean despite all efforts within the framework of operation Mare Nostrum. This operation, including its search and rescue component, commenced in October 2013 and was operated by the Italian Navy with some financial support of the European Commission. As we all know, the operation ended in October 2014 and was superseded by Frontex's Operation Triton, which operates a smaller search and rescue capability. From a legal perspective, it is interesting to focus on the issue of jurisdiction in