Case Law

France – Council of State rules in case concerning the execution of an ECtHR judgment by the National Court of Asylum On 3 October, the French Council of State ruled in a case concerning the rejection of the asylum application of a national of the Democratic Republic of the Congo (DRC), despite a decision by the European Court of Human Rights (ECtHR) that considered him to be in a real risk of inhuman and degrading treatment upon return to his country. The applicant’s asylum request had been rejected both by the French Asylum Office and the National Court of Asylum. After two unsuccessful re-examination attempts, the domestic authorities issued a decision imposing an obligation on the applicant to leave the country. The applicant brought the case before the European Court of Human rights, where his claim of a possible violation of Article 3 of the European Convention on Human Rights (ECHR), upon his return to the DRC, succeeded. The applicant requested another re-examination of his case, but that request was rejected by the French Asylum Office and, on appeal, by the CNDA. It was considered that the risk of inhuman and degrading treatment could not be considered as established. The applicant sought to annul that decision before the Council of State. The Court based its reasoning on Articles 41 and 46 of the ECHR, regarding consequences of violation of a Convention right and the execution of definitive judgments. It found that the execution of a judgment by the ECtHR entails both an obligation to remedy the consequences of the violation and to eliminate its source. In addition to that, the State has to ensure the applicant receives the sums decided by the ECtHR as just satisfaction. Moreover, a decision that declares a removal as violating Article 3 ECHR constitutes a novel element that would justify the re-examination of the case. During this re-examination, the domestic authorities should refrain from executing any removal measure, while ensuring that the applicant will be protected from inhuman and degrading treatment, by being granted subsidiary protection status according to French law. The Court annulled the decision and remitted the case back to the National Court of Asylum for reconsideration. Based on an unofficial translation by the ELENA Weekly Legal Update.

3 October 2018 | Judicial Body: France: Conseil d'Etat | Legal Instrument: 1950 European Convention on Human Rights (ECHR) | Topic(s): Freedom from torture, inhuman and degrading treatment - Human rights courts | Countries: Congo, Democratic Republic of the - France

31 May 2017 | Judicial Body: Switzerland: Tribunal administratif fédéral | Topic(s): Asylum-seekers - Refugee / Asylum law - Refugees - Safe third country | Countries: Congo, Democratic Republic of the - Hungary - Switzerland

9 February 2017 | Judicial Body: Kenya: High Court | Topic(s): Group / Prima facie determination - Refugee / Asylum law - Refugee camps - Refugees | Countries: Burundi - Congo, Democratic Republic of the - Eritrea - Ethiopia - Kenya - Rwanda - Somalia - South Sudan - Uganda

28 April 2016 | Judicial Body: Belgium: Conseil du Contentieux des Etrangers | Countries: Belgium - Congo, Democratic Republic of the

18 December 2015 | Judicial Body: Kenya: High Court | Topic(s): Children-at-risk - National security / Public order - Refugee camps | Countries: Congo, Democratic Republic of the - Kenya

23 September 2015 | Judicial Body: Belgium: Conseil du Contentieux des Etrangers | Topic(s): Burden-sharing and international co-operation - Regional instruments - Women-at-risk | Countries: Belgium - Congo, Democratic Republic of the - Italy

8 September 2015 | Judicial Body: United Kingdom: Upper Tribunal (Immigration and Asylum Chamber) | Topic(s): Country of origin information (COI) - Deportation / Forcible return - Returnees | Countries: Congo, Democratic Republic of the - United Kingdom of Great Britain and Northern Ireland

10 August 2015 | Judicial Body: Belgium: Conseil du Contentieux des Etrangers | Topic(s): Asylum-seekers - Manifestly unfounded / Clearly abusive claims - Refugees - Refugees sur place | Countries: Belgium - Congo, Democratic Republic of the

10 June 2015 | Judicial Body: South Africa: High Court | Topic(s): Manifestly unfounded / Clearly abusive claims - Refugee / Asylum law | Countries: Congo, Democratic Republic of the - South Africa