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‘Abduction of Europa’ (Rembrandt Harmensz. van Rijn, Amsterdam - 1632 - fragment)

Thursday, 8 May 2014

This week in Strasbourg - A roundup of the European Court of Human Rights' case law - 2014 week 19



Arrested refugees - Fylakio Detetntion Center, Thrace, Evros, Greece.

Safaii v. AustriaAsylum – Greece - (No violation of Article 3) - The applicant, Hanif Safaii, is an Afghan national who was born in 1983. His current place of residence is unknown. The case concerned his transfer from Austria to Greece. Having travelled from Afghanistan via Iran to Greece, Mr Safaii arrived in Austria with his wife in August 2008 and applied for asylum. He stated that the couple had stayed for a few months in Greece, spending part of the time in public parks. He had attempted to apply for asylum but had been beaten by police when queuing to submit an application. He further submitted that he was threatened in Afghanistan by the Taliban, who had kidnapped two of his brothers. In October 2008, the Austrian Federal Asylum Office rejected Mr Safaii’s asylum application and ordered his transfer back to Greece, on the grounds that under Austrian and European Union law (the “Dublin II Regulation”), Greece was responsible for examining his asylum application as it was the first EU state that he had entered. The office did not consider credible his account of his treatment in Greece. Mr Safaii’s appeal against the decision was dismissed by the Asylum Court and the Constitutional Court refused to deal with his complaint. On 8 April 2009 he was expelled to Greece.
Mr Safaii complained in particular that his transfer to Greece had exposed him to treatment contrary to Article 3 (prohibition of inhuman or degrading treatment) of the European Convention on Human Rights, as the country was unable to deal properly with asylum requests and provided inadequate conditions for asylum seekers. The Court held however that the applicant’s transfer to Greece in April 2009 under the Dublin Regulation did not violate Article 3 of the Convention. While the Court considers it established that in spring 2009 the Austrian authorities would have been aware of the serious deficiencies in the Greek asylum procedure and the living and detention conditions for asylum-seekers, it does not find it established that, all circumstances considered, the Austrian authorities ought to have known that those deficiencies had reached the threshold required by Article 3:

“45.  The main issue of the present application is whether the Austrian authorities knew or should have known that the applicant’s transfer to Greece on 8 April 2009 would violate Article 3 of the Convention, in that the deficiencies in the detention and reception conditions for asylum-seekers and the shortcomings of the Greek asylum procedure reached the threshold of ill-treatment required by that provision (as concerns the Court’s assessment of the situation in Greece in relation to Article 3, see M.S.S. v. Belgium and Greece, cited above, in particular §§ 224-33, 254-63 and 294-322).
46.  The Court firstly turns to the reporting available at the time of the decision-making process and the actual transfer of the applicant to Greece. The Court has acknowledged the existence of a wide range of reports from various sources appearing at regular intervals since 2006 and more frequently in 2008 (see M.S.S. v. Belgium and Greece and paragraph 33 above), in particular those published by the UNHCR in late 2007 and early 2008 and by the CPT on the detention conditions in Greece. From those reports it appears that the overall situation for asylum-seekers in Greece at the relevant time was volatile and rapidly developing. While the information at issue undeniably drew an increasingly alarming picture of the conditions of access to asylum proceedings in Greece and the living and detention conditions of asylum-seekers there, there were, at the time, also conflicting signals, such as the report of a fact-finding mission conducted by the Swedish authorities and the departure of the Norwegian authorities from their decision to suspend transfers to Greece. The Court therefore concludes that, at the relevant time, the information available to the Austrian authorities was ample, but also partly conflicting in its recommendations and results. Furthermore, while the UNHCR position paper of 15 April 2008 unequivocally recommended that governments refrain from returning asylum-seekers to Greece until further notice, it again undeniably welcomed the steps taken by the Greek Government to strengthen its asylum system. Those reports, which come from different backgrounds, be it governmental or non-governmental organisations, show that there were concerns about the situation for asylum-seekers in Greece. However, the Court points out that the information was not coherent and open for the exercise of particular discretion.
47.  That assessment of developing yet conflicting information was further reflected in the Court’s decision in the case of K.R.S. v. the United Kingdom of December 2008 (cited above), in which it confirmed the presumption that Greece would abide by its obligations under the relevant EU Directives to adhere to minimum standards in asylum procedure and provide minimum standards for the reception of asylum-seekers. The Court also emphasised in that decision that an applicant could, if necessary, turn to the Court and lodge an application or request under Rule 39 of the Rules of Court against Greece. That decision was issued on 2 December 2008, shortly before the Constitutional Court in the present case decided, on 30 January 2009, not to deal with the applicant’s complaint. The removal of the applicant to Greece on 8 April 2009 also occurred after the Court’s decision had been adopted and therefore was not in contrast with the Court’s case-law at the time.
48.  The Court also notes that, at the time of the proceedings in respect of the applicant in Austria and of his transfer to Greece, none of the member States of the European Union had decided to impose a blanket suspension on the transfer of all asylum-seekers, not just the vulnerable, to Greece. Norway, the only country to have done so in February 2008, reverted to examining such requests on a case-by-case basis in September 2008. Furthermore, at the relevant time the UNHCR had not addressed a letter to the Austrian authorities unequivocally asking them to refrain from transferring asylum-seekers to Greece, as it had done with Belgium in April 2009. Even though the UNHCR sent the letter to Belgium on 2 April 2009, there is no indication that the Austrian authorities had any knowledge of that letter when the applicant was removed to Greece. In the M.S.S. judgment the Court attached critical importance to that letter when establishing Belgium’s awareness of the seriousness of the deficiencies in Greece (see paragraph 33 above).
49.  Lastly, and again in relation to the criteria established in M.S.S. v. Belgium and Greece (cited above, § 351), the Court observes that the applicant had access to two levels of asylum proceedings, in which his claims in respect of Greece were examined in substance and sufficient reasoning was provided as to why the Austrian authorities had concluded that the applicant’s transfer to Greece in spring 2009 was acceptable."
Nizamov and Others v. Russia  - Violation of Article 3 in the event of the applicants’ being removed to Uzbekistan Interim measure (Rule 39 of the Rules of Court) – not to expel or extradite the applicants to Uzbekistan – still in force until judgment becomes final or until further order.
 
The applicants, Avazbek Nizamov, Khakim Dzhalalbayev, Rakhmatullo Mukhamedkhodzhayev, and Olim Dzhalalbayev, are Uzbekistani nationals who were born in 1992, 1983, 1989 and 1979 respectively and are currently detained in Moscow. The case concerned their complaint that, if returned to Uzbekistan, they would risk being subjected to ill-treatment. Having moved from Uzbekistan to Russia in 2011 and 2012 to seek employment, they were arrested in Moscow in November 2012 and placed in detention pending extradition to Uzbekistan, where they had been charged, in October 2012, with participation in an extremist religious group. The Russian General Prosecutor refused the Uzbek authorities’ request for the applicants’ extradition, but following their release from detention in March and April 2013, respectively, they were immediately re-arrested as illegal aliens. The district court examining their cases subsequently ordered their expulsion to Uzbekistan, the order being upheld on appeal in May 2013. In parallel proceedings, the applicants’ asylum applications were rejected in February, March and April 2013, respectively. Their expulsion was suspended following an interim measure applied by the European Court of Human Rights, under Rule 39 of its Rules of Court, in April 2013, indicating to the Russian Government not to expel them until further notice. 

Relying on Article 3 (prohibition of torture and inhuman or degrading treatment) of the Convention, the applicants complained that their removal to Uzbekistan would expose them to a risk of ill-treatment, stating in particular that the ill-treatment of prisoners, who, like themselves, were charged with membership in an extremist religious organisation, was a pervasive and enduring problem in Uzbekistan.

The Court considered that in the present case substantial grounds have been shown for believing that there is a real risk that the applicants would be subjected to treatment contrary to Article 3 of the Convention if they were to be expelled to Uzbekistan. The summary and unspecific reasoning adduced by the domestic authorities and the Government before the Court did not dispel the alleged risk of ill‑treatment. Nor can that risk be excluded on the basis of other material available to the Court. In this connection, the Court notes that the existence of domestic laws and the ratification of international treaties guaranteeing respect for fundamental rights, relied on by the Government in their arguments, are not in themselves sufficient to ensure adequate protection against the risk of ill-treatment where, as in the present case, reliable sources have reported practices resorted to or tolerated by the authorities which are manifestly contrary to the principles of the Convention:
"37.  Turning to the circumstances of the present case, the Court observes that the Uzbek authorities requested the applicants’ arrest on charges of participation in an extremist religious group and attempts to overthrow the State’s constitutional order in Uzbekistan. Subsequently, their applications for asylum in Russia were refused. The Russian authorities refused the applicants’ extradition, considering that the offences they were charged with were not punishable under the Russian criminal law. Considered illegal aliens in Russia, the applicants are currently facing expulsion to Uzbekistan, the expulsion order having been suspended following the Court’s intervention.
38.  Accordingly, the Court’s task in the present case is to ascertain whether the foreseeable consequences of the applicants’ expulsion to Uzbekistan are such as to bring Article 3 of the Convention into play, the material date for the assessment of that risk being that of the Court’s consideration of the case.
39.  The Government discerned no circumstances that would preclude the applicants’ extradition to Uzbekistan. Relying on the findings made by the Russian migration authorities (see paragraph 22 above), they considered the applicants’ allegations of the risk of being subjected to treatment in contravention of Article 3 of the Convention, if expelled to Uzbekistan, hypothetical and unsubstantiated.
40.  In this connection the Court observes that it has previously examined on a number of occasions the situation of detainees in Uzbekistan as regards the risk of ill-treatment in the event of extradition or expulsion to Uzbekistan from Russia or another Council of Europe member State. In those earlier cases it has found that reliable international materials have demonstrated the persistence of a serious issue of ill-treatment of detainees, the practice of torture against those in police custody being described as “systematic” and “indiscriminate”, and a lack of evidence demonstrating any fundamental improvement in that area (see among many others, Ismoilov and Others v. Russia, no. 2947/06, § 121, 24 April 2008; Garayev v. Azerbaijan, no. 53688/08, § 71, 10 June 2010; and Abdulkhakov v. Russia, no. 14743/11, § 141, 2 October 2012). Against this background, and having regard to the information summarised in paragraphs 26-29 above, the Court cannot but confirm that the ill-treatment of detainees remains a pervasive and enduring problem in Uzbekistan.
41.  The Court further observes that it has also dealt with cases lodged by applicants allegedly involved in the activities of unregistered religious organisations, groups or informal associations in Uzbekistan. It has been the Court’s consistent view that there was ongoing violent persecution of the member or supporters of such organisations, whose underlying aims appeared to be both religious and political and in contradiction with the policies pursued by the government in Uzbekistan (see, for example, Karimov v. Russia, no. 54219/08, §§ 96-102, 29 July 2010, and Umirov, cited above, §§ 106-22, 18 September 2012).
42.  The Court considers that the present case is similar to the above‑mentioned category of cases, the thrust of the applicants’ complaint before the Court being that they were accused of participation in a banned religious extremist organisation known as the Islamic Movement of Turkestan and attempting to overthrow the constitutional order of Uzbekistan. These accusations constituted the basis for both the extradition request and the arrest warrant issued in respect of the applicants. Given that the criminal proceedings against the applicants are still pending, it is most likely that they would be placed in custody directly after their expulsion to Uzbekistan and subsequently prosecuted."
Texts build on the press releases of the European Court of Human Rights. 
This selection covers categories 1 and 2 judgments. 

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