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Main Debates

Refugee protection under regional v. universal treaties

Subsidiary protection under human rights treaties – a potential challenge to the primacy of the 1951 Convention?

Has the European Court of Human Rights (ECtHR) exhibited too much or too little deference to national refugee decision-making bodies?

Main Points

Scope of protection against refoulement under Art.3 of the ECHR v. Arts. 1 and 33 of the 1951 Convention

Effective remedies for rejected asylum seekers under the ECHR

Expulsion

Detention

Treaties

Regional

Core

European Convention for the Protection of Human Rights and Fundamental Freedoms and its Protocols, 4 November 1950 (213 E.T.S. 222).

Cases

Core

Art. 3 – prohibition of torture, inhuman or degrading treatment or punishment

T.K.H. v. Sweden, ECtHR judgment of 19 December 2013 (finding no violation of Arts. 2 or 3 in a case concerning an Iraqi Sunni Muslim from Mosul who had served from 2003 to 2006 in the new Iraqi army which involved working with the US military forces and who had in 2006 been seriously injured in a suicide bomb explosion killing 30 soldiers, and in 2007 been hit by shots from a car passing in front of his house, and also alleged to have received a letter containing death threats; considering the general situation in Iraq in a similar manner as in B.K.A. v. Sweden 19 December 2013 (see below), the Court stated that there was no indication that members of his family in Iraq had been subjected to attacks or other forms of ill-treatment since 2007, and held that the applicant had not substantiated that there was a remaining personal threat of treatment contrary to Arts. 2 or 3).

T.A. v. Sweden, ECtHR judgment of 19 December 2013 (finding no violation of ECHR Arts. 2 or 3 in a case concerning an Iraqi Sunni Muslim from Baghdad who had from 2003 to 2007 been working for security companies with connections to the US military forces and who alleged to have been subjected to attacks and threats from two militias due to that employment; while considering the general situation in Iraq in a similar manner as in B.K.A. v. Sweden 19 December 2013 (see below), the ECtHR noted that targeted attacks against the former international forces in Iraq and their subcontractors as well as individuals seen to be collaborating with these forces have been widespread and that such individuals must therefore be considered to be at greater risk in Iraq than the average population; as regards the applicant’s personal situation, the Court found reasons to generally question his credibility and thus considered that he had not been able to make it plausible that there is a connection between the alleged incidents and his previous work for security companies connected to the former US troops; there was consequently no sufficient evidence of a real risk of treatment contrary to Arts. 2 or 3, yet two judges dissented on the basis of the cumulative weight of factors pertaining to both the general situation in Iraq and the applicant’s personal account).

K.A.B. v. Sweden, ECtHR judgment of 5 September 2013 (finding no violation of ECHR Arts. 2 or 3 in case concerning a Somali asylum seeker, originating from Mogadishu, who claimed that he had fled Somalia due to persecution by the Islamic Courts and al-Shabaab, in particular by telephone calls threatening him to stop spreading Christianity as he had been working for American Friends Service Community from 1992 to 2005; while the Swedish authorities intended to deport the applicant to Somaliland, the ECtHR did not find it sufficiently substantiated that he would be able to gain admittance and to settle there and therefore assessed his situation upon return to Somalia in the context of the conditions prevailing in Mogadishu, his city of origin; assessing the general situation of violence in the light of the criteria applied in the judgment Sufi and Elmi v. UK 28 June 2011 (see above) against the background of recent information, the Court’s majority held that the security situation in Mogadishu had improved since 2011 or the beginning of 2012, as the general level of violence had decreased, there was no frontline fighting in the city, and there had been improvements for the ordinary citizens despite the fact that al-Shabaab was still present performing attacks, and the human rights and security situation in Mogadishu was serious and fragile. The situation was therefore not of such a nature as to place everyone present in the city at a real risk of treatment contrary to Arts. 2 or 3; the two dissenting judges considered the majority’s analysis of the general situation deficient and its conclusions premature, due to the unpredictable nature of the conflict and the volatility and instability of the situation in Mogadishu; as regards the applicant’s personal situation, the Court referred to the careful examination by the Swedish authorities and the extensive reasons given for their conclusions, and noted certain inconsistencies in the applicant’s submissions and found that there were credibility issues, further noting that the applicant did not belong to any group at risk of being targeted by al-Shabaab, and allegedly had a home in Mogadishu where his wife lived).

M.E. v. France, ECtHR judgment of 6 June 2013 (finding a violation of ECHR Art. 3 if the decision to deport the applicant were to be enforced, but no violation of Art. 13 due to examination in the ‘fast-track’ asylum procedure; the applicant was a Coptic Christian from Egypt where he had been exposed to a number of attacks due to his religious belief, his reports of the incidents to the police had been unsuccessful, and he had been accused of proselytizing for which he was sentenced in absentia to 3 years of imprisonment; the ECtHR referred to reports on numerous instances of violence and other persecution against Coptic Christians in Egypt in 2010-11 and on reluctance of Egyptian authorities to prosecute the perpetrators, and found no evidence that the situation had improved; there was strong evidence that the applicant as a convicted proselytizer would be a potential prime target of persecution and violence, and the Court pointed to the serious doubt about the applicant’s ability to receive adequate protection from the Egyptian authorities; contrary to the judgment in I.M. v. France 2 February 2012, the ECtHR did not consider the examination of this case in the French ‘fast-track’ asylum procedure incompatible with Art. 13; the Court emphasised the very substantial delay in the applicant’s lodging of his asylum request (almost 3 years) and the fact that he had been able to lodge an appeal with suspensive effect against the removal order as well as an asylum request with suspensive effect, thus he could not validly argue that the reduced and very short deadlines to prepare the asylum request in the special procedure had affected the accessibility of the remedies available to him).

Mo.M. v. France, ECtHR judgment of 18 April 2013 (violation of ECHR Art. 3 in case of expulsion of an asylum applicant who had been accused of spying for the rebels in Chad, and had been taken into custody for five days, interrogated and subjected to torture; in addition, his shop had been destroyed, his possessions confiscated, and his family threatened; the general situation in Chad was held to give cause for concern, particularly for persons suspected of collaboration with the rebels; as regards the applicant’s personal situation, the Court considered the medical certificates produced by him as sufficient proof of the alleged torture, and noted that he had produced a warrant issued against him, the authenticity of which had not been seriously disputed by the French Government; due to the reasoning given by the French authorities and the fact that they had not been able to examine some of the evidence produced by the applicant, the Court could not rely on the French courts’ assessment of the applicant’s risk, and found a real risk that he would be subjected to treatment contrary to Art. 3).

Sufi and Elmi v. UK, ECtHR judgment of 28 June 2011 (finding a violation of Art. 3 in case of expulsion of the two Somali applicants to Mogadishu as the level of violence there was of sufficient intensity to pose a real risk of treatment reaching the Art. 3 threshold to anyone in the capital; in reaching this conclusion the Court had regard to the large quantity of objective information indicating the indiscriminate bombardments and military offensives carried out by all parties to the conflict, the unacceptable number of civilian casualties, the substantial number of persons displaced within and from the city, and the unpredictable and widespread nature of the conflict; while not excluding the possibility that a well-connected person might be able to obtain protection in Mogadishu, the Court considered that only persons exceptionally well-connected to ‘powerful actors’ would be able to assure protection, and that anyone having been outside Somalia for some time was unlikely to have such connections; as regards possible internal relocation, the Court considered that in the context of Somalia this could only apply if the applicant had close family connections in the area concerned where he could effectively seek refuge, stating that if he had no such connections, or if those connections were in an area which he could not safely reach, there would be a likelihood that he would have to have recourse to either an IDP or refugee camp; the two applicants were found to be likely to end up in such camps where conditions were so dire as to expose anyone seeking refuge there to treatment in breach of Art. 3).

N. v. Sweden, ECtHR judgment of 20 July 2010 (deportation of woman to Afghanistan would give rise to a violation of Art. 3; the Court observed 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; reference was here made to UNHCR observations that Afghan women having 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; 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, pursuit of a professional career, and mere disagreements as to the way family life is conducted; as the applicant had resided in Sweden since 2004, had attempted to divorce her husband, and had expressed a clear, real and genuine intention of not resuming the marriage, the Court could not ignore the general risk to which she might be exposed should her husband decide to resume their married life together, or should he perceive her filing for divorce as an indication of an extramarital relationship; in these special circumstances, there were substantial grounds for believing that the applicant would face various cumulative risks of reprisals falling under Art. 3 from her husband, his or her family, and from the Afghan society).

See also Abdolkhani and Karimnia v. Turkey, ECtHR judgment of 22 September 2009 (reiterating the interpretation of Art. 3 in Salah Sheekh v. Netherlands as regards the non-insistence on further special distinguishing features if the applicant establishes being a member of a group systematically exposed to a practice of ill-treatment).

N.A. v. UK, ECtHR judgment of 17 July 2008 (the Court considered the general principles applicable to cases of expulsion or deportation of rejected asylum applicants, restating that substantial grounds must have been shown for believing that the applicant faces a real risk of treatment contrary to Art. 3; the assessment of the existence of such real risk must necessarily be a rigorous one, basing itself on both the general situation in the country of destination and the applicant’s personal circumstances; while the Court will have regard to whether there is a general situation of violence in the country of destination, such a situation will not normally in itself entail a violation of Art. 3 in the event of deportation; however, the Court has never excluded the possibility that a general situation of violence in the country of destination will be of a sufficient level of intensity as to entail that any removal thereto would necessarily breach Art. 3, yet such an approach will be adopted only in the most extreme cases of general violence where there is a real risk of ill-treatment simply by virtue of an individual being exposed to such violence on return; in addition, protection under Art. 3 exceptionally enters into play where there are serious reasons to believe that a certain group is systematically exposed to a practice of ill-treatment and the applicant establishes membership of such a group; in such circumstances, the Court will not insist that the applicant show the existence of further special distinguishing features; against that background, considering the cumulative factors in the case, the information about systematic torture and ill-treatment of Tamils found to be of interest to the Sri Lankan authorities upon return, and the current climate of general violence and heightened security in Sri Lanka, there were substantial grounds for finding that the applicant would be considered of interest to the authorities, and therefore deportation at the present time would be a violation of Art. 3).

Sultani c. France, ECtHR judgment of 20 September 2007 (finding no violation of Art. 3, despite the applicant’s complaint that the most recent asylum decision within an accelerated procedure had not been based on an effective individual examination; the Court emphasized that the first decision had been made within the normal asylum procedure, involving full examination in two instances, and held this to justify the limited duration of the second examination which had aimed to verify whether any new grounds could change the previous rejection; in addition, the latter decision had been reviewed by administrative courts at two levels; the applicant had not brought forward elements concerning his personal situation in the country of origin, nor sufficient to consider him as belonging to a minority group under particular threat).

Salah Sheekh v. Netherlands, ECtHR judgment of 11 January 2007 (asylum seeker held to be protected against refoulement under Art.3; there was a real chance that deportation to ‘relatively safe’ areas in Somalia would result in his removal to unsafe areas, hence there was no ‘internal flight alternative’ viable; the Court emphasised that even if ill-treatment be meted out arbitrarily or seen as a consequence of the general unstable situation, the asylum seeker would be protected under Art.3, holding that it cannot be required that an applicant establishes further special distinguishing features concerning him personally in order to show that he would be personally at risk).

D. and others v. Turkey, ECtHR judgment of 22 June 2006 (deportation of woman applicant in view of the awaiting execution of severe corporal punishment in Iran would constitute violation of Art.3, as such punishment would inflict harm to her personal dignity and her physical and menta lintegrity; violation of Art. 3 would also occur to her husband and daughter, given their fear resulting from the prospective ill-treatment of D).

Bader v. Sweden, ECtHR judgment of 8 November 2005 (asylum seeker held tobe protected against refoulement due to a risk of flagrant denial of fair trial that might result in the death penalty; such treatment would amount to arbitrary deprivation of life in breach of Art.2; deportation of both the asylum seeker and his family members would therefore give rise to violations of Arts. 2 and 3).

Said v. Netherlands, ECtHR judgment of 5 July 2005 (asylum seeker held to be protected against refoulement under Art. 3; the Dutch authorities had taken his failure to submit documents establishing his identity, nationality, or travel itinerary as affecting the credibility of his statements; the Court instead found the applicant’s statements consistent, corroborated by information from Amnesty International, and thus held that substantial grounds had been shown for believing that, if expelled, he would be exposed to a real risk of ill- treatment as prohibited by Art. 3).

Venkadajalasarma v. Netherlands, ECtHR judgment of 17 February 2004 (current situation in Sri Lanka makes it unlikely that Tamil applicant would run a real risk of being subject to ill-treatment after his expulsion from the Netherlands).

Jabari v. Turkey, ECtHR judgment of 11 July 2000 (holding violation of Art. 3 in case of deportation that would return a woman who has committed adultery to Iran; Art.13 violated as well due to the lack of aneffective remedy with suspensive effect to challenge the rejection of her asylum claim).

H.L.R. v. France, ECtHR judgment of 29 April 1997 (finding no violation of Art. 3 in case of expulsion of the applicant to Columbia, as there was no relevant evidence of risk of ill-treatment by non-state agents; thereby recognising that ill-treatment caused by such actors would fall within the scope of Art. 3 if the authorities are not able to obviate the risk by providing adequate protection).

Vilvarajah and others v. UK, ECtHR judgment of 30 October 1991 (finding no breach of Art. 3 although applicants claimed to have been subjected to ill-treatment upon return to Sri Lanka; this had not been a foreseeable consequence of the removal of the applicants, in the light of the general situation in Sri Lanka and their personal circumstances; a mere possibility of ill-treatment is not in itself sufficient to give rise to a breach of Art.3, and there existed no special distinguishing features that could orought to have enabled the UK authorities to foresee that they would be treated in this way).

Cruz Varas and others v. Sweden, ECtHR judgment of 20 March 1991 (recognizing the extra-territorial eect of ECHR Art. 3 similarly applicable to rejected asylum seekers; finding no Art.3 violation in expulsion of a Chilean national denied asylum, noting that risk assessment by State Party must be based on facts known at time of expulsion).

Soering v. UK, ECtHR judgment of 7 July 1989 (holding extradition from UK to USA of a German national charged with capital crime and at risk of serving on death row would be a violationof ECHR Art.3, recognising the extra-territorial effect of ECHR provisions).

Particular issues of evidence and proof

A.A. v. Switzerland, ECtHR judgment of 7 January 2014 (finding a violation of ECHR Art. 3, but no violation of Art. 13 in a case concerning a Sudanese asylum seeker claiming to originate from North Darfur and alleging to have fled his village after it had been attacked and burnt down by the Janjaweed militia that had killed his father and many other inhabitants, and mistreated himself; the Court noted that the security and human rights situation in Sudan was alarming and had deteriorated in the last few months, and that political opponents of the government were frequently harassed, arrested, tortured and prosecuted, such risk affecting not only high-profile people, but anyone merely suspected of supporting opposition movements; as the applicant had been a member of the Darfur rebel group SLM-Unity in Switzerland for several years, the Court noted that the Sudanese government monitors activities of political opponents abroad; acknowledging the difficulty in assessing cases concerning sur place activities, the Court had regard to the fact that the applicant had joined the organisation several years before launching his present asylum request when it was not foreseeable for him to apply for asylum a second time; in view of the importance of Art. 3 and the irreversible nature of the damage resulting if the risk of ill-treatment materialises, the Court assessed the claim on the grounds of the political activities effectively carried out by the applicant, and as he might at least be suspected of being affiliated with an opposition movement, there were substantial grounds for believing that he would be at risk of being detained, interrogated and tortured on arrival at the airport in Sudan).

N.K. v. France, ECtHR judgment of 19 December 2013 (finding a violation of ECHR Art. 3, while the complaint under Art. 13 was inadmissible in a case on a Pakistani citizen seeking asylum on the basis of his fear of ill-treatment due to his conversion to the Ahmadiyya religion, alleging to have been abducted and tortured and that an arrest warrant had been issued against him for preaching this religion; observing that the risk of ill-treatment of persons of the Ahmadiyya religion in Pakistan is well documented, the Court stated that belonging to this religion would not in itself be sufficient to attract protection under Art. 3, so that the applicant would have to demonstrate being practising the religion openly and proselytising, or at least to be perceived as such; although the French authorities had questioned the applicant’s credibility, in particular regarding the authenticity of the documents presented by him, the Court did not consider their decisions to be based on sufficiently explicit motivations in that regard, and the Court did not find the respondent State to have provided information giving sufficient reasons to doubt the veracity of the applicant’s account of the events leading to his flight; there was therefore no basis of doubting his credibility, and it was concluded that the applicant was perceived by the Pakistani authorities not as simply practising the Ahmadiyya belief, but as a proselytiser and thus having a profile exposing him to the attention of the authorities in case of return).

R.J. v. France, ECtHR judgment of 19 September 2013 (finding a violation of Art. 3 in case of expulsion of a Tamil asylum seeker who claimed to have been persecuted by the Sri Lankan authorities because of his ethnic origin and his political activities in support of the LTTE; the Court referred to the principles applicable to the evidentiary assessment of asylum claims under Art. 3, as well as to the general criteria concerning the assessment of the risks to which Tamils were exposed upon return to Sri Lanka after the end of armed hostilities in 2009 according to which there was no generalised risk of treatment contrary to Art. 3 for all Tamils returned to Sri Lanka, but only for those applicants representing such interest to the authorities that they may be exposed to detention and interrogation upon return; the risk therefore had to be assessed on an individual basis, taking into account the relevant factors pronounced by the Court in N.A. v. UK 17 July 2008; while there were certain credibility issues concerning the applicant’s account of his financial support of the LTTE and his detention conditions, the Court put emphasis on the medical certificate precisely describing his wounds; as the nature, gravity and recent infliction of these wounds created a strong presumption of ill-treatment, and as the French authorities had not effectively rebutted this presumption, the Court considered that the applicant had established the risk that he might be subjected to ill-treatment upon return).

I v. Sweden, ECtHR judgment of 5 September 2013 (finding a violation of ECHR Art. 3 in a case concerning Russian asylum seekers of Chechen origin who submitted that they had been tortured in Chechnya and were at risk of further ill-treatment upon return to Russia because Mr. I had taken photographs and written reports about numerous crimes committed by the State against Chechens between 1995 and 2007; the Court referred to recent information on the human rights and security situation in Chechnya and stated that it was well aware of ongoing disappearances, arbitrary violence, impunity and ill-treatment in detention facilities, notably with regard to certain categories of persons such as former rebels and their relatives, political adversaries of the Kadyrov regime, journalists, human rights activists and individuals having lodged complaints with international organisations, as well as of reported interrogations of returnees and of harassment and possible detention and ill-treatment by the FSB, local law-enforcement officials and criminal organisations; nonetheless, the unsafe general situation was not considered sufficiently serious to conclude that the return of the applicants to Russia would amount to a violation of Art. 3; as far as the applicants’ individual situation was concerned, the Court noted that the Swedish authorities did not as such question that Mr. I had been subjected to torture, but had found that he had not established with sufficient certainty why and by whom he had been subjected to it, and had thus found reason to question the credibility of his statements; the Court too found that there were credibility issues with regard to the applicants’ statements, noting that there were no indications that the domestic proceedings lacked effective guarantees and that he had failed to present any information that would lead it to depart from the domestic authorities’ conclusion that there were reasons to doubt his credibility; however, the Court emphasised that the assessment of a real risk for the persons concerned must be made on the basis of all relevant factors which may increase the risk of ill-treatment, and that due regard should be given to the possibility that a number of individual factors may not, when considered separately, constitute a real risk, but when taken cumulatively and considered in a situation of general violence and heightened security, the same factors may give rise to a real risk; in that connection it was noted that Mr. I had significant and visible scars on his body so that, in case of a body search in connection with his possible detention and interrogation by the FSB or local law-enforcement officials upon return, these would immediately see that Mr. I had been subjected to ill-treatment which could indicate that he took active part in the second war in Chechnya; taking those factors cumulatively, in the special circumstances of the case, the Court found that there were substantial grounds for believing that the applicants would be exposed to a real risk of ill-treatment if deported to Russia).

S.F. and Others v. Sweden, ECtHR judgment of 15 May 2012 (acknowledging that the national authorities are best placed to assess the facts and the general credibility of asylum applicants’ stories, the Court agreed that the applicant’s basic story was consistent notwithstanding some uncertain aspects that did not undermine the overall credibility of the story; observing that the human rights situation in Iran gave rise to grave concern, and that the situation appeared to have deteriorated since the Swedish domestic authorities determined the case and rejected the applicants’ request for asylum in 2008-09, the Court noted that it was not only the leaders of political organisations or other high-profile persons who were detained, but that anyone who demonstrates or in any way opposes the current regime in Iran may be at risk of being detained and ill-treated or tortured; while the applicants’ pre-flight activities and circumstances were not sufficient independently to constitute grounds for finding that they would be in risk of art. 3 treatment if returned to Iran, the Court found that they had been involved in extensive and genuine political and human rights activities in Sweden that were of relevance for the determination of the risk on return, given their existing risk of identification and their belonging to several risk categories; their sur place activities taken together with their past activities and incidents in Iran therefore lead the Court to conclude that there would be substantial grounds for believing that they would be exposed to a real risk of treatment contrary to art. 3 if deported to Iran in the current circumstances).

R.C. v. Sweden, ECtHR judgment of 9 March 2010 (asylum seeker protected against deportation under Art. 3, despite the Swedish authorities’ doubts about his credibility; while acknowledging the need to give asylum seekers the benefit of the doubt, the Court held that they must adduce evidence capable of proving that there are substantial grounds for believing that they would be exposed to a real risk of ill-treatment, and that they must provide a satisfactory explanation for alleged discrepancies if there are strong reasons to question the veracity of their submissions; if such evidence is adduced, it is for the State to dispel any doubts about it; and while accepting that national authorities are generally best placed to assess the facts and the credibility, the Court did not share their conclusion about the applicant’s general credibility; the Court referred to a medical report concluding that the applicant’s injuries were consistent with his alleged exposure to torture, thus corroborating his story about political activities in Iran, and to information on ill-treatment of demonstrators in Iran; as the applicant’s account was consistent with that general information, he was held to have discharged the burden of proving that he had already been tortured, so that the onus to dispel any doubts about the risk was resting with the State; the current situation in Iran, and the specific risk facing Iranians returning from abroad without evidence of their legal departure from the country, were adding a further risk; the cumulative effect of these factors led the Court to conclude that there were substantial grounds for believing in a real risk of detention and ill-treatment of the applicant if deported to Iran).

N. v. Finland, ECtHR judgment of 26 July 2005 (asylum seeker held to be protected against refoulement under Art.3, despite the Finnish authorities’ doubts about his identity, origin,and credibility; two delegates of the Court were sent to take oral evidence from the applicant, his wife and a Finnish senior official; while retaining doubts about his credibility on some points, the Court found that the applicant’saccounts on the whole had to be considered sufficiently consistent and credible; deportation would therefore be in breach of Art. 3).

Particular issues of national security and criminal offences

Ismailov v. Russia, ECtHR judgment of 17 April 2014 (violation of ECHR Art. 3 and Art. 5 (1)(f) and (4) in case of expulsion of an Uzbek whose extradition to Uzbekistan had been requested, but refused, while in parallel proceedings his application for asylum in Russia had also been refused; the general human rights situation in Uzbekistan was held to be ‘alarming’, the practice of torture in police custody being described as ‘systematic’ and ‘indiscriminate’, and the issue of ill-treatment of detainees a pervasive and enduring problem; the Court observed that the applicant was wanted by the Uzbek authorities on charges of participating in a banned extremist organisation ‘the Islamic Movement of Uzbekistan’, and a terrorist organisation ‘O’zbekiston Islomiy Harakati’, and that he was held to be plotting to destroy the constitutional order of Uzbekistan; referring to international reports and its own findings in a number of judgments, and pointing to the risk of ill‑treatment which could arise in similar circumstances, the Court held that forced return to Uzbekistan, in the form of expulsion or otherwise, would give rise to a violation of Art. 3).

Rafaa c. France, ECtHR judgment of 30 May 2013 (violation of ECHR Art. 3 in case where the Moroccan authorities had requested the applicant’s extradition under an international arrest warrant for acts of terrorism, and the applicant initiated procedures contesting his extradition and a parallel procedure requesting asylum in France; the French asylum authorities apparently recognising the risk of ill-treatment in Morocco due to the applicant’s alleged involvement in an Islamist terrorist network, the Court reconfirmed the absolute nature of prohibition under Art. 3 and the impossibility to balance the risk of ill-treatment against the reasons invoked in support of expulsion; given the human rights situation in Morocco, the persisting ill-treatment of persons suspected of participation in terrorist activities, and the applicant’s profile, the Court considered the risk of violation of Art. 3 in case of his return to be real).

Labsi v. Slovakia, ECtHR judgment of 15 May 2012 (violation of Arts. 3, 13 and 34; an Algerian man, convicted in France of preparing a terrorist act, and convicted in his absence in Algeria of membership of a terrorist organisation, had been expelled to Algeria upon rejection of his asylum request in Slovakia; on the basis of information about the situation in Algeria for persons suspected of terrorist activities, the Court found that there had been substantial grounds for believing that he faced a real risk of being exposed to treatment contrary to Art. 3; the responding government’s invocation of the security risk represented by the applicant was dismissed due to the absolute guarantee under Art. 3; assurances given by the Algerian authorities concerning the applicant’s treatment upon return to Algeria were found to be of a general nature, and they had proven insufficient since the request for a visit by a Slovak official to the applicant, held in detention upon return, had not been followed; the applicant’s expulsion only one working day after the Slovak Supreme Court’s judgment, upholding the dismissal of his asylum request, had effectively prevented him from attempting redress by a complaint to the Slovak Constitutional Court; expulsion of the applicant in disregard of an interim measure issued by the Court under Rule 39, preventing the Court from properly examining his complaints and from protecting him against treatment contrary to Art. 3, was a violation of the right to individual application under Art. 34).

Othman (Abu Qatada) v. UK, ECtHR judgment of 17 January 2012 (finding no violation of Art. 3 in case of deportation to Jordan, notwithstanding widespread and routine occurrence of torture in Jordanian prisons, and the fact that the applicant as a high profile Islamist was in a category of prisoners frequently ill-treated in Jordan; the applicant was held not to be in real risk of ill-treatment if deported to Jordan, due to information provided about ‘diplomatic assurances’ that had been obtained by the UK government in order to protect his Convention rights upon deportation; the Court took into account the particularities of the memorandum of understanding agreed between the UK and Jordan, as regards the specific circumstances of its conclusion, its detail and formality, as well as the modalities of monitoring Jordanian compliance with the assurances; holding that Art. 5 applies in expulsion cases, but that there would be no real risk of flagrant breach of Art. 5 in respect of the applicant’s pre-trial detention in Jordan; but holding that deportation of the applicant to Jordan would violate Art. 6 due to the real risk of flagrant denial of justice by admission of torture evidence against him in the retrial of criminal charges).

Saadi v. Italy, ECtHR judgment of 28 February 2008 (reconfirming the absolute nature of the prohibition in Art. 3 of torture and inhuman or degrading treatment or punishment, and hence of the protection against refoulement, irrespective of the victim’s conduct; the applicant had been prosecuted in Italy for participation in international terrorism and, as a result, his deportation to Tunisia was ordered, whereas in Tunisia he had been sentenced in absentia to 20 years’ imprisonment for membership of a terrorist organization and for incitement to terrorism; noting the immense difficulties faced by States in protecting their communities from terrorist violence, the Court held that this cannot call into question the absolute nature of Art. 3, thus reaffirming the principle stated in Chahal v. UK that it is not possible to weigh the risk of ill-treatment against the reasons put forward for the expulsion; the ‘diplomatic assurances’ sought by Italy from the Tunisian authorities were not accepted by the Court, stating that the existence of domestic law and accession to international treaties guaranteeing respect for fundamental rights in principle are not in themselves sufficient to ensure adequate protection against the risk of ill-treatment where reliable sources have reported practices resorted to or tolerated by the authorities which are manifestly contrary to the principles of the ECHR; even if diplomatic assurances had been given by the receiving State, the weight to be given to such assurances would depend on the circumstances in each case, and the Court would still have to examine whether the assurances provided in their practical application sufficient guarantee against the risk of prohibited treatment).

Ahmed v.Austria, ECtHR judgment of 17 December 1996 (reconfirming the absolute nature of Art.3; deportation of a Somali convicted of serious criminal offences would therefore be a violation of Art.3, as the applicant was under therisk of being subjected to inhuman and degrading treatment by non-state agents upon expulsion).

Chahal v. UK, ECtHR judgment of 15 November 1996 (holding that deportation of a Sikh separatist to India on national security grounds would be in breach of ECHR Art.3, as he would face real risk of being subjected to treatment contrary to Art. 3; the prohibition in Art. 3 is absolute also in expulsion cases, and the activities of the individual in question, however undesirable or dangerous, cannot be a material consideration).

See also Muminov v. Russia, ECtHR judgment of 11 December 2008; Ben Khemais v. Italy, ECtHR judgment of 24 February 2009; O. v. Italy, ECtHR judgment of 24 March 2009; Abdolkhani and Karimnia v. Turkey, ECtHR judgment of 22 September 2009; Trabelsi v. Italy, ECtHR judgment of 13 April 2010; A. v. Netherlands, ECtHR judgment of 20 July 2010 (all reiterating the interpretation pronounced in Saadi v. Italy as regards the absolute nature of the prohibition in Art. 3).

Health issues

I.K. v. Austria, ECtHR judgment of 28 March 2013 (summary below).

Josef v. Belgium, ECtHR judgment of 27 February 2014 (summary below).

S.H.H. v. UK, ECtHR judgment of 29 January 2013 (finding no violation of ECHR Art. 3 by the refusal of asylum to an applicant who had been seriously injured during a rocket launch in Afghanistan in 2006 and left disabled, following several amputations, for the UK in 2010; the Court reiterated that ECHR Art. 3 does not imply an obligation on States to provide all illegal immigrants with free and unlimited health care; referring to the applicant’s assertion that disabled persons were at higher risk of violence in the armed conflict in Afghanistan, the Court held that expulsion would only be in violation of Art. 3 in very exceptional cases of general violence where the humanitarian grounds against removal were compelling, pointing out that the applicant had not complained that his removal to Afghanistan would put him at risk of deliberate ill-treatment from any party, nor that the levels of violence were such as to entail a breach of Art. 3; it was emphasised that the applicant had received medical treatment and support throughout the four years he spent in Afghanistan after his accident, and the Court did not accept the applicant’s claim that he would be left destitute due to total lack of support upon return to Afghanistan, as he had not given any reason why he would not be able to make contact with his family there).

N. v. UK, ECtHR judgment of 27 May 2008 (the ECtHR Grand Chamber maintained the high threshold set in D v. UK concerning cases of removal of aliens suffering from a serious mental or physical illness to a country where the facilities for treatment of that illness are inferior to those available in the CoE State; such decisions may raise an issue under Art. 3, but only in very exceptional cases where the humanitarian grounds against the removal are compelling; Art. 3 was held principally to prevent deportation where the risk of ill-treatment in the destination country would emanate from intentional acts or omissions of public authorities, or from non-State bodies when the authorities are unable to afford the applicant appropriate protection; the fact that the alien’s circumstances, including life expectancy, would be significantly reduced is not sufficient in itself to give rise to breach of Art. 3; the applicant had been diagnosed as having two AIDS defining illnesses, but was not presently considered critically ill, so her case was not found to disclose very exceptional circumstances such as in D v. UK. and implementation of the removal decision would therefore not give rise to a violation of Art. 3).

Aoulmi v. France, ECtHR judgment of 17 January 2006 (high threshold set by Art. 3, in particular if the deporting State has no direct responsibility for the potential infliction of harm due to substandard health services in country of origin; not proven that the applicant could not receive adequate medical treatment upon expulsion to Algeria; the binding nature of Rule 39 indications was reconfirmed, hence deportation despite such indication was held to violate ECHR Art. 34).

Bensaid v. UK, ECtHR judgment of 6 February 2001 (high threshold set by Art.3, according to which a schizophrenic suffering from psychotic illness does not face a sufficiently real risk after his return to Algeria; not compelling humanitarian considerations as required under Art. 3, once the necessary treatment is available in the country of destination).

D. v. UK, ECtHR judgment of 2 May 1997 (applicant suffering from advanced stages of a terminal HIV/AIDS illness; expulsion to the country of origin, known for its lack of medical facilities and appropriate treatment in case, and where he would have no family or friends to care for him, would amount to inhuman treatment prohibited by Art. 3; the Court stressed the very exceptional circumstances of the case and the compelling humanitarian considerations at stake).

Internal protection alternative

A.A.M. v. Sweden, ECtHR judgment of  3 April 2014 (finding no violation of ECHR Art. 3 in a case concerning an Iraqi Sunni Muslim originating from Mosul; despite certain credibility issues concerning an alleged arrest warrant and in absentia judgment, the ECtHR considered him to be at real risk of ill-treatment by al-Qaeda in Iraq due to his refusal to apologise for offensive religious statements and having had an unveiled woman in his employment; based on considerations similar to those in W.H. v. Sweden 27 March 2014 (see above), the Court found that the applicant would be able to relocate safely in KRI, and that his deportation would therefore not involve a violation of Art. 3 provided that he not be returned to parts of Iraq situated outside KRI; one dissenting judge considered this insufficient in order to comply with the guarantees for internal relocation as required under the Court’s case law).

W.H. v. Sweden, ECtHR judgment of 27 March 2014 (finding no violation of ECHR Art. 3 in a case concerning an Iraqi asylum seeker of Mandaean denomination, originating from Baghdad and invoking that she, as a divorced woman belonging to a small and vulnerable minority and without a male network or remaining relatives in Iraq, would be at risk of persecution, assault, rape and forced conversion and forced marriage; the Court held that the general situation in Iraq, even while it included indiscriminate and deadly attacks by violent groups, discrimination and heavy-handed treatment by authorities, was not so serious as to cause by itself a violation of Art. 3 in the event of return to that country; the general risks attached to the status of being a single woman in Iraq could also not be considered of themselves to reach the threshold prohibited by Art. 3; as regards the applicant’s personal circumstances, the Court noted that in addition to being a single woman she was also a member of a small religious minority, and stated that minority women face a particular security risk, being subjected to violence, discrimination and pressure to convert or change appearance, thus considering that women with these characteristics in general may well face a real risk of being subjected to ill-treatment in southern and central Iraq; however, the Court examined the possibility of internal relocation in the Kurdistan Region of Iraq, and concluded that the applicant could reasonably relocate to KRI where she would not face such a risk as neither the general situation in KRI nor her personal circumstances were indicating an Art. 3 risk; the Court took account of various sources considering KRI as a relatively safe area, and the fact that many members of the Mandaean community have taken refuge in KRI, and of available information to the effect that it would be possible for the applicant to obtain identity documents and to enter and reside in KRI without being required to have a sponsor in the region; based on the information on socio-economic conditions in KRI the Court held that internal relocation would be a viable alternative, the Court expressly stating that, as a precondition of relying on an internal relocation alternative certain guarantees must be in place: the person must be able to travel to the area concerned, to gain admittance there and to settle there; it was therefore stipulated that the applicant could not be returned to parts of Iraq situated outside KRI).

B.K.A. v. Sweden, ECtHR judgment of 19 December 2013 (finding no violation of ECHR Art. 3 in a case concerning an Iraqi Sunni Muslim from Baghdad who claimed to be at risk of persecution because he had worked as a professional soldier in 2002-03 during the Saddam Hussein regime and had been a member of the Ba’ath party, and because of a blood feud after he had accidentally shot and killed a relative in Iraq; the ECtHR first considered the general situation in Iraq, and referred to international reports attesting to a continued difficult situation, including indiscriminate and deadly attacks by violent groups, discrimination and heavy-handed treatment by authorities; however, it appeared to the Court that the overall situation had been slowly improving since the peak in violence in 2007; as regards the applicant’s personal situation, while noting that the Swedish Migration Court had found his story coherent and detailed, the ECtHR considered former members of the Ba’ath party and the military to be at risk only in certain parts of Iraq and only if some other factors were at hand, such as the individual having held a prominent position in either organisation; given the long time passed since the applicant left these organisations and the fact that neither he nor his family had received any threats because of this involvement for many years, the Court found no indication of risk of ill-treatment on this account, but it did accept the Swedish Court’s assessment of the risk of retaliation and ill-treatment from his relatives as part of the blood feud, noting that it may be very difficult to obtain evidence in such matters; the Court’s majority also accepted the Swedish authorities’ finding that the risk of ill-treatment was geographically limited to Diyala and Baghdad and that he would be able to settle in another part of Iraq, for instance in Anbar governorate, the largest province in the country, whereas one of the judges held this finding to reflect a failure to test the requisite guarantees in connection with internal relocation of applicants under Art. 3).

A.G.A.M., D.N.M., M.K.N., M.Y.H. and Others, N.A.N.S., N.M.B., N.M.Y. and Others, and S.A. v. Sweden, ECtHR judgments of  27 June 2013 (no violation of ECHR Art. 3 in eight cases concerning Iraqi asylum applicants whose applications had been rejected by the Swedish Migration Board and the Migration Court, the ECtHR noting that both of these authorities had given extensive reasons for their decisions and that the general situation in Iraq was slowly improving and thus not so serious as to cause by itself a violation of Art. 3 in the event of return; relocation to other regions of Iraq was considered a reasonable alternative; the applicants in two of the cases alleged to be at risk of being victims of honour-related crimes, and the Court found that the events that had led the applicants to leave Iraq strongly indicated that they would be in danger upon return to their home towns, and that the applicants would be unable to seek protection from the authorities in their home regions of Iraq, nor would any protection provided be effective, given reports that ‘honour killings’ were being committed with impunity, but these applicants were considered able to relocate to regions away from where they were persecuted by a family or clan, as tribes and clans were region-based powers and there was no evidence to show that the relevant clans or tribes in their cases were particularly influential or powerful or connected with the authorities or militia in Iraq; the other applicants were Iraqi Christians whom the Court considered able to relocate to the three northern governorates forming the Kurdistan Region of Iraq since, according to international sources, this region was a relatively safe area where the rights of Christians were generally being respected and large numbers of this group had already found refuge, the Court further pointing to the preferential treatment given to the Christian group as compared to others wishing to enter the Kurdistan Region, and to the apparent availability of identity documents for that purpose; there was no evidence to show that the general living conditions would not be reasonable, the Court noting in particular that there were jobs available in Kurdistan and that settlers would have access to health care as well as financial and other support from UNHCR and local authorities).

H. and B. v. UK, ECtHR judgment of 9 April 2013 (finding no violation of ECHR Art. 3 in cases concerning the removal to Kabul of failed Afghan asylum seekers who had claimed to be at risk of ill-treatment by Taliban in Afghanistan due to their past work as a driver for the UN and as an interpreter for the US forces, respectively, and thus essentially concerning the adequacy of Kabul as an internal flight alternative; the Court found no evidence to suggest that there is a general situation of violence such that there would be a real risk of ill-treatment simply by virtue of being returned to Afghanistan, even while pointing to the disturbing picture of attacks carried out by the Taliban and other anti-government forces in Afghanistan on civilians with links to the international community, with targeted killing of civilians, and quoting reports about an ‘alarming trend’ of assassination of civilians by anti-government forces; at the same time, the Court considered that there was insufficient evidence to suggest that the Taliban had the motivation or the ability to pursue low level collaborators in Kabul or other areas outside their control; applicant H. had left the Wardak province as an infant and had moved to Kabul where he had lived most of his life with his family, he had worked as a driver for the UN in Kabul 2005-2008, and the ECtHR found no reason to suggest either that he had a high profile in Kabul such that he would remain known there or that he would be recognised elsewhere in Afghanistan as a result of his work; applicant B. had until early 2011 worked as an interpreter for the US forces in Kunar province with no particular profile, and had not submitted any evidence or reason to suggest that he would be identified in Kabul or that he would come to the adverse attention of the Taliban there, the Court pointing out that the UK Tribunal had found him to be an untruthful witness and finding no reason to depart from this finding of fact, and noting that he was a healthy single male of 24 years and that he had failed to submit evidence suggesting that his removal to Kabul, an urban area under Government control where he still had family members including two sisters, would be in violation of Art. 3).

Hilal v. UK, ECtHR judgment of 6 March 2001 (expulsion of Tanzanian opposition party member, having previously suffered serious ill-treatment in detention,would be contrary to Art.3; no‘internal flight alternative’ found to be viable in his case).

See also Chahal v. UK, ECtHR judgment of 15 November 1996; Salah Sheekh v. Netherlands, ECtHR judgment of 11 January 2007 (summaries above).

Family issues and reception conditions

Tarakhel v. Switzerland, ECtHR judgment of 4 November 2014 (violation of ECHR Art. 3 in case the applicants were to be returned to Italy without the Swiss authorities having first obtained individual guarantees from the Italian authorities that the applicants would be taken charge of in a manner adapted to the age of the children and that the family would be kept to together; the applicants were an Afghan family with six minor children who had entered Italy and applied for asylum; here they had been transferred to a reception centre where they considered the conditions poor, particularly due to lack of appropriate sanitation facilities, lack of privacy and a climate of violence; having travelled on to Switzerland, their transfer under the Dublin Regulation was tacitly accepted by Italy, and they complained to the Court that such transfer to Italy in the absence of individual guarantees would be in violation of the ECHR; the ECtHR noted the insufficient capacity of the reception system for asylum seekers in Italy, causing the risk of being left without accommodation or accommodated in overcrowded facilities without any privacy, or even in insalubrious or violent conditions; while the overall situation of the Italian reception system could not act as a bar to all transfers of asylum seekers, the Court emphasised the specific needs and extreme vulnerability of children seeking asylum, reiterating that asylum seekers as a particularly underprivileged and vulnerable group require special protection under Art. 3).

B.M. v. Greece, ECtHR judgment of 19 December 2013 (finding violation of ECHR Art. 3 taken alone as well as in combination with Art. 13 in case concerning an Iranian journalist who alleged to have been arrested and tortured due to his involvement in protests against the government; after his arrival in Greece a decision had been taken to return him to Turkey, he had been held in custody in a police station and in various detention centres, and his asylum application was first not registered by the Greek authorities, and later they dismissed the application; the ECtHR case mainly dealt with the conditions of detention, in particular overcrowding, unhygienic conditions, lack of external contact, and lack of access to telephone, translators and any kind of information; referring to its previous case law, the ECtHR held these conditions to be in violation of Art. 3, and as there had been no effective domestic remedy against that situation, Art. 13 in combination with Art. 3 had also been violated).

C.D. and Others v. Greece, ECtHR judgment of 19 December 2013 (violation of ECHR Art. 3 and Art. 5(4) due to detention conditions and lack of speedy review of the lawfulness of detention).

Mohammed v. Austria, ECtHR judgment of 6 June 2013 (finding a violation of ECHR Art. 13 in conjunction with Art. 3, but no violation of Art. 3 in a case on transfer under the Dublin Regulation; a Sudanese asylum seeker had arrived in Austria via Greece and Hungary, the Austrian authorities ordered his transfer to Hungary under the Dublin Regulation, and when placed in detention with a view to his forced transfer almost a year later he lodged a second asylum application which did not have suspensive effect in relation to the transfer order; the ECtHR considered the applicant’s initial claim against the Dublin transfer arguable, due to the ‘alarming nature’ of reports published in 2011-12 in respect of Hungary as a country of asylum, in particular as regards Dublin transferees; his second application for asylum in Austria could therefore not prima facie be considered abusively repetitive or entirely manifestly unfounded, and the applicant had been deprived of de facto protection against forced transfer and of a meaningful substantive examination of his arguable claim concerning the situation of asylum seekers in Hungary, thus Art. 13 had been violated; despite the initially arguable claim against transfer to Hungary, the Court noted the subsequent legislative amendments and the introduction of additional legal guarantees concerning detention of asylum seekers and their access to basic facilities, holding that the applicant would therefore no longer be at a real risk of treatment in violation of Art. 3 upon transfer to Hungary).

Horshill v. Greece, ECtHR judgment of 1 August 2013 (violation of ECHR Art. 3 due to detention conditions; no violation of Art. 5)

Mohammed Hussein and Others v. Netherlands and Italy, ECtHR decision of 2 April 2013 (finding no violation of ECHR Art. 3 in a case on pending return of a Somali asylum seeker and her two children from the Netherlands to Italy under the Dublin Regulation, with significant discrepancies between the applicant’s initial complaint that she had not been enabled to apply for asylum in Italy, had not been provided with reception facilities for asylum seekers, and had been forced to live on the streets in Italy, and her subsequent information to the ECtHR admitting that she had been granted a residence permit for subsidiary protection in Italy and provided with reception facilities, including medical care, during her stay in Italy; upholding its general principles of interpretation of Art. 3, the Court reiterated that the mere fact of return to a country where one’s economic position will be worse than in the expelling State is not sufficient to meet the threshold of ill-treatment proscribed by Art. 3, and that aliens subject to expulsion cannot in principle claim any right to remain in order to continue to benefit from medical, social or other forms of assistance provided by the expelling State, absent exceptionally compelling humanitarian grounds against removal).

Ahmade v. Greece, ECtHR judgment of 25 September 2012 (violation of ECHR Arts. 3, 5 and 13; the conditions of detention of an asylum seeker in two police stations in Athens were found to constitute degrading treatment in breach of Art. 3; since Greek law did not allow the courts to examine the conditions of detention in centres for irregular immigrants, the applicant did not have an effective remedy in that regard, in violation of Art. 13 taken together with Art. 3; an additional violation of Art. 13 taken together with Art. 3 resulted from the structural deficiencies of the Greek asylum system, as evidenced by the period during which the applicant had been awaiting the outcome of his appeal against the refusal of asylum and the risk that he might be deported before his asylum appeal had been examined; Art. 5 (4) was violated due to the lack of judicial competence to review the lawfulness of the deportation constituting the legal basis for detention).

Mahmundi and Others v. Greece, ECtHR judgment of 31 July 2012 (violation of ECHR Arts. 3, 5 and 13; the conditions of detention of the applicants – Afghan nationals detained in the Pagani detention centre upon being rescued from a sinking boat by the maritime police, and subsequently seeking asylum in Norway – were held to be in violation of Art. 3; in the specific circumstances the treatment during 18 days of detention was not only degrading, but also inhuman, mainly due to the fact that the applicants’ children had also been detained, some of them separated from their parents, and a female applicant had been in the final stages of pregnancy and received insufficient medical assistance and information about the place of her giving birth and the future of her and her child; Art. 13, taken together with Art. 3, had been violated by the impossibility for the applicants to take any action before the courts to complain of their conditions of detention; Art. 5 (4) was violated due to the lack of judicial competence to review the lawfulness of the deportation constituting the legal basis for detention).

Popov v. France, ECtHR judgment of 19 January 2012 (finding a violation of Arts. 3, 5 and 8; the applicant couple and their two children aged 5 months and  3 years had been detained in an administrative detention centre authorised to accommodate families, but the conditions during their two weeks detention were held to have caused the children distress and to have serious psychological repercussions; thus, the children had been exposed to conditions exceeding the minimum level of severity required to fall within the scope of Art. 3, while there was no violation of Art. 3 in respect of the parents; Art. 5 was violated in respect of the children, both because the French authorities had not sought to establish any possible alternative to administrative detention (Art. 5 (1) (f)), and because children accompanying their parents were unable to have the lawfulness of their detention examined by the courts (Art. 5 (4)); Art. 8 was violated due to the detention of the whole family as there had been no particular risk of the applicants absconding, and the interference with the applicants’ family life resulting from their placement in a detention centre for two weeks had been disproportionate; in this regard the Court referred to Art. 3 of the UN Convention on the Rights of the Child and to Directive 2003/9 on Reception Conditions).

Zontul v. Greece, ECtHR judgment of 17 January 2012 (finding a violation of ECHR Art. 3 based on complaints that an irregular migrant had been raped with a truncheon by a Greek coastguard officer in a detention centre upon interception of the boat on which he and 164 other migrants attempted to go from Turkey to Italy; due to its cruelty and intentional nature, the Court considered such treatment as amounting to torture under Art. 3; given the seriousness of the treatment, the penalty imposed on the perpetrator – a suspended term of six months imprisonment that was commuted to a fine – was considered to be in clear lack of proportion; the procedural handling of the case that had prevented the applicant from exercising his rights to claim damages at the criminal proceedings constituted an additional violation of Art. 3).

M.S.S. v. Belgium and Greece, ECtHR judgment of 21 January 2011 (upholding the principle previously adopted in T.I. v. UK, admissibility decision of  7 March 2000, according to which the deporting State is responsible under ECHR Art. 3 for the foreseeable consequences of the deportation of an asylum seeker to another EU Member State, even if the deportation is being decided in accordance with the Dublin Regulation; the responsibility of the deporting State comprises not only the risk of indirect refoulement by way of further deportation to risk of ill-treatment in the country of origin, but also the conditions in the receiving Member State if it is foreseeable that the asylum seeker may there be exposed to treatment contrary to Art. 3; thus, Greece was held to have violated Art. 3 due to the detention conditions and the absence of any measures to cover the applicant’s basic needs during the asylum procedure; Belgium too was in violation of Art. 3 by having returned the applicant to Greece and thereby having knowingly exposed him to conditions of detention and living conditions that amounted to degrading treatment; the deficiencies in the Greek asylum procedure and the consequent risk that the applicant might have been returned to Afghanistan without any serious examination of the merits of his asylum application, and without having access to an effective remedy in Greece, was held to be a violation of Art. 13 in conjunction with Art. 3; since the Belgian authorities knew or ought to have known that the applicant would have no guarantee that his asylum application would be seriously examined by the Greek authorities, the transfer from Belgium to Greece under the Dublin Regulation had given rise to a violation of Art. 3 by Belgium).

Muskhadzhiyeva and others v. Belgium, ECtHR judgment of 19 January 2010 (detention of four children aged 7 months, 3½ years, 5 years and 7 years, awaiting transfer to Poland under the Dublin Regulation, over a month in the same closed centre as in the aforementioned case, not designed to house children, held to be in violation of Arts. 3 and 5; as the mother had not been separated from the children, her treatment had not reached the level of severity required to constitute inhuman treatment, and her detention had been lawful in accordance with Art. 5).

Mayeka and Mitunga v. Belgium, ECtHR judgment of 12 October 2006 (the arrest, detention and subsequent deportation of a 5 year old child, transiting Belgium in order to join her mother living as a refugee in Canada, held to be inviolation of Arts.3, 5, and 8; breaches of Art.3 were found both due to the conditions of the childs detention, the conduct of the deportation of the child to DR Congo, and the resulting distressand anxiety suffered by her mother).

D. and others v. Turkey, ECtHR judgment of 22 June 2006 (summary above).

Procedural issues

I.K. v. Austria, ECtHR judgment of 28 March 2013 (violation of ECHR Art. 3, mainly due to procedural flaws; the applicant claimed that his removal to Russia would expose him to risk of ill-treatment as his family had been persecuted in Chechnya, his father had been working with the former separatist President Maskarov and was murdered in 2001, and the applicant claimed to have been arrested four times, threatened and at least once severely beaten by Russian soldiers in the course of an identity check in 2004; while the applicant had withdrawn his appeal against the refusal of his asylum application, allegedly due to wrong legal advice, his mother was recognised as a refugee and granted asylum in appeal proceedings in 2009; in the applicant’s subsequent asylum proceedings the Austrian authorities did not examine the connections between his and his mother’s cases, but held that his reasons for flight had been sufficiently examined in the first proceedings; the ECtHR was not persuaded that the applicant’s case had been thoroughly examined, and therefore assessed it in the light of the domestic authorities’ findings in his mother’s case which had accepted her reasons for flight as credible; there was no indication that the applicant would be at lesser risk of persecution upon return to Russia than his mother, and the alternative of staying in other parts of Russia had been excluded in her case as well; the Court observed the regularly occurring human rights violations and the climate of impunity in Chechnya, notwithstanding the relative decrease in the activity of armed groups and the general level of violence, referring to its numerous judgments finding violations of ECHR Arts. 2 and 3, and to reports about practices of reprisals and collective punishment of relatives and suspected supporters of alleged insurgents as well as occurrences of targeted human rights violations; the applicant’s mental health status – described as post-traumatic stress disorder and depression – was not found to amount to such very exceptional circumstances as required to raise a separate issue under Art. 3).

Ahmade v. Greece, ECtHR judgment of 25 September 2012 (summary above).

Labsi v. Slovakia, ECtHR judgment of 15 May 2012 (summary above).

M.S.S. v. Belgium and Greece, ECtHR judgment of 21 January 2011 (summary above).

Trabelsi v. Italy, ECtHR judgment of 13 April 2010 (violation of Art. 3 due to deportation of the applicant to Tunisia; ‘diplomatic assurances’ alleged by the respondent Government could not be relied upon; violation of Art. 34 as the deportation had been carried out in spite of an ECtHR decision issued under Rule 39 of the Rules of Court).

Ben Khemais v. Italy, ECtHR judgment of 24 February 2009 (violation of Art. 3 due to deportation of the applicant to Tunisia; ‘diplomatic assurances’ alleged by the respondent Government could not be relied upon; violation of Art. 34 as the deportation had been carried out in spite of an ECtHR decision issued under Rule 39 of the Rules of Court).

Mamatkulov and Askarov v. Turkey, ECtHR judgment of 4 February 2005 (evidence insufficient to find a violation of Art.3 by theapplicants’ extradition from Turkey to Uzbekistan; the extradition constituted Turkey’s non-adherence to the Court’s indication of interim measures under Rule 39 of the Rules of Court, thereby violating ECHR Art. 34).

Extended

Art. 3 – prohibition of torture, inhuman or degrading treatment or punishment

Gayratbek Saliyev v. Russia, ECtHR judgment of 17 April 2014 (violation of ECHR Art. 3 and Art. 5 (4) in case of extradition of a Kyrgyz citizen of Uzbek ethnicity, wanted in Kyrgyzstan for violent offences allegedly committed during inter-ethnic riots in 2010, detained pending extradition and released in 2013; considering the widespread and routine use of torture and other ill-treatment by law-enforcement agencies in the southern part of Kyrgyzstan in respect of members of the Uzbek community to which the applicant belonged, the impunity of law‑enforcement officers and the absence of sufficient safeguards for the applicant in the requesting country, the ECtHR found it substantiated that he would face a real risk of ill-treatment if returned to Kyrgyzstan; that risk was not considered to be excluded by diplomatic assurances from the Kyrgyz authorities, as invoked by Russia).

Ghorbanov and Others v. Turkey, ECtHR judgment of 3 December 2013 (violation of ECHR Art. 3 and of Art. 5(1) and (2) towards Uzbek citizens who had been recognised as refugees by the UNHCR both in Iran and in Turkey; the Turkish authorities had issued them asylum-seeker cards as well as temporary residence permits, nonetheless they had been summarily deported from Turkey to Iran twice in 2008; while the complaint about risk of further deportation from Iran to Uzbekistan had been declared manifestly ill-founded by the ECtHR as the applicants had been living in Iran as recognised refugees for several years before entering Turkey, the Court held the circumstances of their deportation from Turkey to have caused feelings of despair and fear as they were unable to take any step to prevent their removal in the absence of procedural safeguards; the Turkish authorities had carried out the removal without respect for the applicants’ status as refugees or for their personal circumstances in that most of the applicants were children with a stable life in Turkey; the suffering had been severe enough to be categorised as inhuman treatment.

Savriddin Dzhurayev v. Russia, ECtHR judgment of  25 April 2013 (finding a violation of ECHR Arts. 3, 5(4) and 34 in case concerning extraordinary rendition of a national of Tajikistan having been granted temporary asylum in Russia, abducted in Moscow, detained in a mini-van for one or two days and tortured, and then taken to the airport from where he was flown to Tajikistan without going through normal border formalities or security checks; here he had allegedly been detained, severely ill-treated by the police, and sentenced to 26 years’ imprisonment for a number of offences; based on consistent reports about the widespread and systematic use of torture in Tajikistan, and the applicant’s involvement in an organisation regarded as terrorist by the Tajik authorities, the Court concluded that his forcible return to Tajikistan had exposed him to a real risk of treatment in breach of Art. 3; due to the Russian authorities’ failure to take preventive measures against the real and imminent risk of torture and ill-treatment caused by his forcible transfer, Russia had violated its positive obligations to protect him from treatment contrary to Art. 3; additional violations of Art. 3 resulted from the lack of effective investigation into the incident, and the involvement of State officials in the operation; Art. 34 had been violated by the forcible transfer of the applicant to Tajikistan by way of an operation in which State officials had been involved, in spite of an interim measure indicated by the ECtHR under Rule 39; pursuant to ECHR Art. 46, the Court indicated various measures to be taken by Russia in order to end the violation found and make reparation for its consequences, just as Russia was required under Art. 46 to take measures to resolve the recurrent problem of blatant circumvention of the domestic legal mechanisms in extradition matters, and ensure immediate and effective protection against unlawful kidnapping and irregular removal from the territory and from the jurisdiction of Russian courts, the Court once again stating that such operations conducted outside the ordinary legal system are contrary to the rule of law and the values protected by the ECHR).

El-Masri v. ‘former Yugoslav Republic of Macedonia’, ECtHR judgment of 13 December 2012 (violation of ECHR Arts. 3, 5, 8 and 13 in case concerning extraordinary rendition; a German national of Lebanese origin had been arrested by the Macedonian authorities as a terrorist suspect, held incommunicado in a hotel in Skopje, handed over to a CIA rendition team at Skopje airport, and brought to Afghanistan where he was held in US detention and repeatedly interrogated, beaten, kicked and threatened until his release four months later; the Court accepted evidence from both aviation logs, international reports, a German parliamentary inquiry, and statements by a former Macedonian minister of interior as the basis for concluding that the applicant had been treated in accordance with his explanations; in view of the evidence presented, the burden of proof was shifted to the Macedonian government that had not conclusively refuted the applicant’s allegations which therefore was considered as established beyond reasonable doubt; Macedonia was held to be responsible for the ill-treatment and unlawful detention during the entire period of the applicant’s captivity; Arts. 3 and 13 had also been violated due to the absence of any serous investigation into the case by the Macedonian authorities).

Abdulkhakov v. Russia, ECtHR judgment of 2 October 2012 (violation of ECHR Arts. 3, 5 (1), 5 (4) and 34 in case concerning extraordinary rendition; the applicant had applied for asylum in Russia and was arrested immediately upon arrival as the Russian authorities had been informed that he was wanted in Uzbekistan for involvement in extremist activities; the applicant claimed to be persecuted in Uzbekistan due to his religious beliefs, and feared being tortured in order to extract confession to offences; his application for refugee status was rejected, but his application for temporary asylum was still pending when the Russian authorities ordered his extradition to Uzbekistan, referring to diplomatic assurances given by the Uzbek authorities; while the extradition order was not enforced, due to an indication by the ECtHR of interim measure under Rule 39, the applicant was meanwhile abducted in Moscow, taken to the airport and brought to Tajikistan; extradition of the applicant to Uzbekistan was considered to constitute violation of ECHR Art. 3, due to the widespread ill-treatment of detainees and the systematic practice of torture in police custody in Uzbekistan, and such risk would be increased for persons accused of offences connected to prohibited religious organisations; the Court found it established that the applicant’s transfer to Tajikistan had taken place with the knowledge and either passive or active involvement of the Russian authorities, and as Tajikistan is not a party to the ECHR, Russia had therefore removed the applicant from the protection of his ECHR rights without any assessment of the existence of legal guarantees in Tajikistan against removal of persons facing risk of ill-treatment; the applicant’s transfer to Tajikistan had been carried out in secret, outside any legal framework capable of providing safeguards against his further transfer to Uzbekistan without assessment of his risk of ill-treatment there, and extra-judicial transfer or extraordinary rendition, by its deliberate circumvention of due process, was held to be contrary to the rule of law and the values protected by the ECHR).

A.A. v. Greece, ECtHR judgment of  22 July 2010 (violation of Art. 3 both due to the conditions in detention centre and to the Greek authorities’ lack of diligence in providing the applicant with appropriate medical assistance).

S.D. v. Greece, ECtHR judgment of 11 June 2009 (violation of Art. 3 due to the conditions of detention in holding centres for foreigners).

Ayegh v. Sweden, ECtHR admissibility decision of 7 November 2006 (application declared inadmissible; the authenticity of documents invoked by theapplicant was indispute ,and she was found not to have established a real risk to her life or physica lintegrity if deported to Iran; if the benefit of the doubt is to be given to asylumseekers, they must provide satisfactory explanation whenthe veracity of their submissions is questioned).

Gomes v. Sweden, ECtHR admissibility decision of 7 February 2006 (application declared inadmissible; the complaints of risk of death penalty, life imprisonmentandtortureheldtobemanifestlyill-foundedduetothecontradictoryinformationgivenbytheapplicanttotheSwedishauthorities,andthe lack of documents substantiating his allegations).

R (on the applications of Adam, Tesema, and Limbuela) v. Secretary of State for the Home Department (2004), 2004 EWCA 540, All ER (D) 323, Judgments of 21 May 2004 (UK judicial decision holding failure to provide shelter and assistance to destitute asylum seekers violates ECHR Art. 3.

Art. 1 – territorial scope of applicability

Hirsi Jamaa and Others v. Italy, ECtHR judgment of 23 February 2012 (finding the applicants – 11 Somalian and 13 Eritrean nationals – to have been within Italian jurisdiction in the terms of ECHR Art. 1 when the boats on which they were bound for Italy in May 2009 had been intercepted by Italian military vessels, the passengers transferred to the Italian vessels and later returned to Libya and handed over to Libyan authorities; the Court noted that the events had taken place entirely on board ships of the Italian armed forces so that the applicants had been under continuous and exclusive de jure and de facto control of the Italian authorities; the ‘push-back’ to Libya was considered a violation of Art. 3 due to the risk of ill-treatment in Libya and of indirect removal to the applicants’ countries of origin; further violations were found of Art. 4 of Protocol 4 prohibiting collective expulsion, as well as of ECHR Art. 13 in conjunction with Art. 3 and Art. 4 of Protocol 4 due to the lack of remedy with suspensive effect).

Medvedyev and Others v. France, ECtHR judgment of 10 July 2008, upheld by Grand Chamber judgment of 29 March 2010 (case not regarding asylum issues; however, the Court interpreted Art. 1 so as to imply State responsibility in an area outside national territory when, as a consequence of military action, it exercises control of that area, or in cases involving activities of its diplomatic or consular agents abroad and on-board aircraft and ships registered in the State concerned; as France had exercised full and exclusive control over a cargo vessel and its crew, at least de facto, from the time of its interception, and the crew had remained under the control of the French military, the applicants were held to have been effectively within the jurisdiction of France).

Al-Adsani v. UK, ECtHR judgment of 21 November 2001 (state not responsible for torture that had taken place outside the Council of Europe Member State jurisdiction and was committed by agents of another State, even in case of an applicant of dual British/Kuwaiti citizenship; any positive obligation deriving from ECHR Arts. 1 and 3 could extend only to the prevention of torture).

Xhavara et al. c. Italie et Albanie, ECtHR admissibility decision of 11 January 2001 (Italian jurisdiction as regards the incident of a collision between an Italian military vessel and an Albanian boat that was intercepted by the Italian vessel, resulting in the death of irregular immigrants on-board the boat, was undisputed; the application to the ECtHR was declared inadmissible due to non-exhaustion of domestic remedies).

Art. 5 – deprivation of liberty

Gayratbek Saliyev v. Russia, ECtHR judgment of 17 April 2014 (violation of ECHR Art. 5 (4) due to length of detention appeal proceedings; summary above).

Ismailov v. Russia, ECtHR judgment of 17 April 2014 (violation of ECHR Art. 5 (1)(f) and (4) on account of detention and unavailability of any procedure for judicial review of the lawfulness of detention; summary above).

Horshill v. Greece, ECtHR judgment of 1 August 2013 (finding no violation of Art. 5, the Court referring to the Greek decree transposing EU Directive 2005/85 on Asylum Procedures, the administrative court decision from which it was clear that the applicant’s detention had not been automatic, as well as the short period of detention and the fact that he had been immediately released when assuring that he would be accommodated in a hostel run by an NGO).

Suso Musa v. Malta and Aden Ahmed v. Malta, ECtHR judgments of 23 July 2013 (finding violation of ECHR Art. 5(1) and (4) in cases on asylum applicants who had entered Malta in an irregular manner by boat; violation of Art. 5(1) mainly due to failure of the Maltese authorities to pursue deportation or to do so with due diligence, and of Art. 5(4) due to absence of an effective and speedy domestic remedy to challenge the lawfulness of their detention; according to Art. 46, the Court requested Malta to establish a mechanism allowing a determination of the lawfulness of immigration detention within a reasonable time-limit; Malta’s request for referral to the Grand Chamber was rejected by the ECtHR on 9 December 2013).

Savriddin Dzhurayev v. Russia, ECtHR judgment of 25 April 2013 (extraordinary rendition; summary above).

El-Masri v. ‘former Yugoslav Republic of Macedonia’, ECtHR judgment of 13 December 2012 (extraordinary rendition; summary above).

Abdulkhakov v. Russia, ECtHR judgment of 2 October 2012 (extraordinary rendition; summary above).

Mahmundi and Others v. Greece, ECtHR judgment of 31 July 2012, and Ahmade v. Greece, ECtHR judgment of 25 September 2012 (finding violation of Art. 5 (4) due to the lack of judicial competence to review the lawfulness of the deportation constituting the legal basis for detention; see further details above).

Othman (Abu Qatada) v. UK, ECtHR judgment of 17 January 2012 (holding that Art. 5 applies in expulsion cases, but that there would be no real risk of flagrant breach of Art. 5 in respect of the applicant’s pre-trial detention in Jordan; see further details above)

Louled Massoud v. Malta, ECtHR judgment of 27 July 2010 (reiterating the interpretation of Art. 5 pronounced in Saadi v. UK as regards the protection from arbitrariness; Art. 5 held to be violated due to the failure of the national system to protect the applicant from arbitrary detention, and his prolonged detention could not be considered to have been lawful; it had not been shown that the applicant had at his disposal under domestic law an effective and speedy remedy for challenging the lawfulness of his detention).

A.A. v. Greece, ECtHR judgment of 22 July 2010 (violation of Art. 5 as the period of detention subsequent to the registration of the applicant’s asylum request had been unnecessary for the aim pursued; the applicant had further been unable to have the judicial review of the lawfulness of his detention).

S.D. v. Greece, ECtHR judgment of 11 June 2009 (violation of Art. 5, since detention with a view to expulsion of the applicant had no legal basis in Greek law, and the applicant had been unable to have the lawfulness of his detention reviewed by the courts).

Saadi v. UK, ECtHR judgment of 11 July 2006, upheld by Grand Chamber judgment of 29 January 2008 (detention of an asylum seeker for 7 days to facilitate the examination of the casefound to be justified under Art. 5 (1)(f); it was considered a necessary adjunct to the right of States to control aliens’ entry and residence that States are permitted to detain would-be immigrants who have applied for permission to enter, whether by way of asylum or not; until the State has authorised entry, any entry is ‘unauthorised’ and detention is permissible under Art. 5 (1) (f), provided that such detention is not arbitrary; this requires that detention must be carried out in good faith, be closely connected to the purpose of preventing unauthorised entry, the place and conditions of detention should be appropriate, and the duration should not exceed that reasonably required for the purpose pursued; however, informing the applicant’s lawyer of the reason for the detention of his client after 76 hours of detention was incompatible with the requirement under Art. 5 (2) to provide such information promptly).

Art. 6 – right to fair trial

Othman (Abu Qatada) v. UK, ECtHR judgment of 17 January 2012 (holding that deportation of the applicant to Jordan would violate Art. 6 due to the real risk of flagrant denial of justice by admission of torture evidence against him in the retrial of criminal charges; see further details above).

Art. 9 – right to freedom of religion

Z. and T. v. UK, ECtHR admissibility decision of 28 February 2006 (application declared inadmissible; the Court not ruling out the possibility that, in exceptional circumstances, there might be protection against refoulement on the basis of Art. 9 where the person would run a real risk of flagrant violation of that provision in the receiving state).

Art. 13 – right to effective remedy

A.C. and Others v. Spain, ECtHR judgment of 22 April 2014 (finding violation of ECHR Art. 13 in conjunction with Arts. 2 and 3 towards 30 asylum seekers of Sahrawi origin, claiming that their return to Morocco would expose them to the risk of inhuman and degrading treatment in reprisal of their participation in the Gdeim Izik camp in Western Sahara which they had fled upon its forcible dismantling by Moroccan police; the applicants had requested judicial review of the rejection by the Spanish Ministry of the Interior of their applications for international protection, and as they had applied for the stay of execution of the orders for their deportation, the Audiencia Nacional court had provisionally suspended the removal procedure for the first 13 applicants, and the following day rejected the applications for stay of execution, just as the decisions to reject the applications for stay of execution of the other 17 applicants’ deportation orders had been adopted very shortly after the provisional suspension, while appeals on the merits of the asylum applications were still pending before the Spanish courts; the ECtHR reiterated its previous considerations of the necessity of automatic suspension of the removal in order for appeals to comply with the requirement of effectiveness of the remedy under Art. 13 in cases pertaining to Arts. 2 or 3; even while recognising that accelerated procedures may facilitate the processing of asylum applications in certain circumstances, the Court held that in this case rapidity should not be achieved at the expense of the effective procedural guarantees protecting the applicants against refoulement to Morocco; as the applicants had not had the opportunity to provide any further explanations on their cases, and their applications for asylum did not in themselves have suspensive effect, the Court found a violation of Art. 13 and, according to Art. 46, stated that Spain was to guarantee, legally and materially, that the applicants would remain within its territory pending a final decision on their asylum applications).

Josef v. Belgium, ECtHR judgment of 27 February 2014 (finding no violation of ECHR Art. 3, but violation of Art. 13 in conjunction with Art. 3, in case concerning a Nigerian woman, diagnosed with HIV, who was to be returned with her three children upon refusal of her request for asylum in Belgium; in line with previous case law, the Court did not find the applicant’s medical condition so critical as to make the considerations against her removal imperative for the purpose of prohibiting her return under Art. 3; referring to its case law on the automatic suspensive effect of appeals in order to comply with the requirements under Art. 13 in Art. 3 cases, the Court held that Belgian law did not provide such an effective opportunity to challenge the order for removal as only appeals for suspension under the ’extreme urgency procedure’ have automatic suspensive effect, and this type of procedure has only limited application; the Belgian appeal system was in general considered too difficult to operate and too complex to fulfil the obligations under Art. 13, so the applicant had not had access to an effective remedy; according to Art. 46, the Court indicated to Belgium the need to amend its legislation in order for the system of appeals against removal to comply with Art. 13).

M.E. v. France, ECtHR judgment of 6 June 2013 (finding no violation of ECHR Art. 13 in conjunction with Art. 3 due to specific circumstances of the examination in the French ‘fast-track’ asylum procedure; summary above).

Mohammed v. Austria, ECtHR judgment of 6 June 2013 (finding a violation of ECHR Art. 13 in conjunction with Art. 3 in a case concerning transfer under the Dublin Regulation; summary above).

Singh and Others v. Belgium, ECtHR judgment of 2 October 2012 (finding a violation of ECHR Art. 13 taken together with Art. 3; the applicants were refused entry into Belgium, and their applications for asylum were rejected as the Belgian authorities did not accept their claim to be Afghan nationals, members of the Sikh minority in Afghanistan, but rather Indian nationals; the Court considered the claim to risk of chain refoulement to Afghanistan as ‘arguable’ so that the examination by the Belgian authorities would have to comply with the requirements of Art. 13, including close and rigorous scrutiny and automatic suspensive effect; the examination of the asylum case was therefore held to be insufficient, since neither the first instance nor the appeals board had sought to verify the authenticity of the documents presented by the applicants with a view to assessing their possible risk of ill-treatment in case of deportation; the Court noted that the Belgian authorities had dismissed copies of protection documents issued by UNHCR in New Delhi pertinent to the protection request, although these documents could easily have been verified by contacting UNHCR).

Ahmade v. Greece, ECtHR judgment of 25 September 2012 (summary above).Labsi v. Slovakia, ECtHR judgment of 15 May 2012 (summary above).

Mahmundi and Others v. Greece, ECtHR judgment of 31 July 2012 (summary above).

I.M. v. France, ECtHR judgment of 2 February 2012 (finding a violation of ECHR Art. 13 in conjunction with Art. 3 due to examination in the French ‘fast-track’ asylum procedure).

M.S.S. v. Belgium and Greece, ECtHR judgment of 21 January 2011 (summary above).

Abdolkhani and Karimnia v. Turkey, ECtHR judgment of 22 September 2009 (holding a violation of Art. 13 in relation to complaints under Art. 3; the notion of an effective remedy under Art. 13 requires independent and rigorous scrutiny of a claim to risk of refoulement under Art. 3, and a remedy with automatic suspensive effect; the Court was not persuaded by the respondent State’s argument that the applicants had failed to request asylum when entering Turkish territory, as this argument was not supported by any documents; in the absence of a legal procedure governing deportation and providing procedural safeguards, there were reasons to believe that their requests would not have been officially recorded; the administrative and judicial authorities had remained totally passive regarding the applicants’ serious allegations of a risk of ill-treatment if returned to Iraq or Iran, amounting to a lack of the rigorous scrutiny required by Art. 13).

Gebremedhin v. France, ECtHR judgment of 26 April 2007 (holding that the particular border procedure declaring ‘manifestly unfounded’ asylum applications inadmissible, and refusing the asylum seeker entry into the territory, was incompatible with Art. 13 taken together with Art.3; emphasising that in order to be effective, the domestic remedy must have suspensive effect as of right).

Conka v. Belgium, ECtHR judgment of 5 February 2002 (the detention of rejected Roma asylum seekers before deportation to Slovakia constituted a violationofArt.5;duetothespecificcircumstancesofthedeportationthe prohibitionagainstcollectiveexpulsionunderProtocol4Art.4wasviolated; theprocedurefollowedbytheBelgianauthoritiesdidnotprovideaneffective remedy in accordance with Art. 13, requiring guarantees of suspensive effect).

See also Jabari v. Turkey, ECtHR judgment of 11 July 2000 (summary above); Keshmiri v. Turkey, ECtHR judgment of 13 April 2010 (violation of Art. 13, case almost identical to Abdolkhani and Karimnia v. Turkey).

Readings

Core

EU Fundamental Rights Agency and ECtHR, Handbook on European law relating to asylum, borders and immigration, 2nd edn, (Luxembourg 2014), chapters 3, 4 and 6.

H. Lambert, ‘The European Convention on Human Rights and the Protection of Refugees: Limits and Opportunities’, Refugee Survey Quarterly, vol. 24, no. 2 (2005), pp. 39–55, 40–49.

Extended

H. Lambert, ‘The Next Frontier: Expanding Protection in Europe for Victims of Armed Conflict and Indiscriminate Violence’, International Journal of Refugee Law, vol. 25, no. 2 (2013), pp. 207-234.

C. Costello, ‘Courting Access to Asylum in Europe: Recent Supranational Jurisprudence Explored’, Human Rights Law Review vol. 2 (2012), pp. 287-339.

V. Moreno-Lax, ‘Hirsi Jamaa and Others v Italy or the Strasbourg Court versus Extraterritorial Migration Control?’, Human Rights Law Review vol.4 (2012), pp. 574-598.

H. Battjes, ‘In Search of a Fair Balance: The Absolute Character of the Prohibition of Refoulement under Article 3 ECHR Reassessed’, Leiden Journal of International Law vol. 22 (2009) pp. 583–621.

T. Spijkerboer, ‘Subsidiarity and ‘Arguability’: the European Court of Human Rights’ Case Law on Judicial Review in Asylum Cases’, International Journal of Refugee Law vol. 21, no. 1 (2009), pp. 48-74.

G. Noll, ‘Seeking Asylum at Embassies: A Right to Entry under International Law?’ International Journal of Refugee Law vol. 17, no. 3 (2005), pp. 542–573.

N. Mole and C. Meredith, Asylum and the European Convention on Human Rights (Strasbourg: Council of Europe Publishing, Human Rights Files No. 9, 2010).

B. Rainey, E. Wicks, and C.Ovey, Jacobs, White, and Ovey, The European Convention on Human Rights, 6th edn, (Oxford: Oxford University Press, 2014), pp. 176–180.

P. van Dijk, F. van Hoof, A. van Rijn, and L. Zwaak, Theory and Practice of the European Convention on Human Rights (Antwerp – Oxford: Intersentia, 2006), pp. 19–23, 427–40.

Editor’s Note

The use of case law and case studies is an effective method for teaching the scope of protection offered by the ECHR. Complex issues of State jurisdiction under Art. 1 ECHR arise in connection with the exercise of extra-territorial immigration controls, whether in foreign territories or in international maritime areas.

Note the practical importance of interim measures under Rule 39 of the Rules of Court, according to which the ECtHR may request the CoE Member State not to enforce a removal decision while the application submitted to the Court is still pending.

In addition to the general scope of protection against refoulement, ECtHR judgments may also illustrate the occurrence of human rights violations in certain CoE Member States from which asylum seekers in other European States originate, as well as EU Member States to which other Member States consider transferring asylum seekers under the Dublin Regulation.

To compare the absolute protection under ECHR Art. 3 with Arts. 1 F and 33 of the 1951 Convention, see Section II.1.1 and Section II.2.1.6.

 VI.1.2	 The European Convention on Human Rights and Fundamental FreedomsVI.1.2 The European Convention on Human Rights and Fundamental Freedoms

 Core CasesCore Cases

 Extended CasesExtended Cases