Case Law

The applicants alleged that their expulsion to Ukraine had been collective in nature and that they had not had an effective remedy in respect of it. In particular, they alleged that the State authorities had not carried out an individual assessment and examination of their cases and had denied them access to the asylum procedure.

24 March 2020 | Judicial Body: Council of Europe: European Court of Human Rights | Legal Instrument: 1950 European Convention on Human Rights (ECHR) | Topic(s): Access to procedures - Expulsion | Countries: Afghanistan - Slovakia

Art 3 ECHR • Expulsion • No risk of ill-treatment in case of removal of Afghan Sikhs to Afghanistan • Adequate assessment of the risks by the domestic authorities • No compelling humanitarian grounds against removal. See also joint partly dissenting opinion on the assessment by the domestic authorities of the foreseeable consequences of the applications to Afghanistan.

25 February 2020 | Judicial Body: Council of Europe: European Court of Human Rights | Legal Instrument: 1950 European Convention on Human Rights (ECHR) | Topic(s): Expulsion - Freedom from torture, inhuman and degrading treatment - Refugee status determination (RSD) / Asylum procedures - Sikh | Countries: Afghanistan - Netherlands

The Court had therefore to examine whether any effective guarantees existed that protected the applicants against arbitrary refoulement by the Bulgarian authorities to China, be it direct or indirect. No destination country had been indicated in the initial decisions for the applicants’ repatriation or in the expulsion decisions. According to the Supreme Administrative Court, the determination of such a country and the assessment of any risk the applicants would face if returned to China fell to be carried out in the process of implementation of the expulsion decisions. However, such an approach offered no guarantees that the Bulgarian authorities would examine with the necessary rigour the question of the risk the applicants would face if returned to the country they had fled. It was unclear by reference to what standards and on the basis of what information the authorities would determine, if at all, the relevant risk. Lastly, there was no indication as to whether, if the authorities chose to send the applicants to a third country, they would properly examine whether they would in turn be sent from there to China without due consideration for the risk of ill‑treatment and even death. In sum, there were no effective guarantees, in the process of implementation of the repatriation or the expulsion decisions against the applicants, that they would not be sent back to China.

20 February 2020 | Judicial Body: Council of Europe: European Court of Human Rights | Legal Instrument: 1950 European Convention on Human Rights (ECHR) | Topic(s): Arbitrary arrest and detention - Expulsion - Freedom from torture, inhuman and degrading treatment - Uighur | Countries: Bulgaria - China

The case concerned the immediate return to Morocco of two nationals of Mali and Côte d’Ivoire who on 13 August 2014 attempted to enter Spanish territory in an unauthorised manner by climbing the fences surrounding the Spanish enclave of Melilla on the North African coast. The Court considered that the applicants had in fact placed themselves in an unlawful situation when they had deliberately attempted to enter Spain on 13 August 2014 by crossing the Melilla border protection structures as part of a large group and at an unauthorised location, taking advantage of the group’s large numbers and using force. They had thus chosen not to use the legal procedures which existed in order to enter Spanish territory lawfully. Consequently, the Court considered that the lack of individual removal decisions could be attributed to the fact that the applicants – assuming that they had wished to assert rights under the Convention – had not made use of the official entry procedures existing for that purpose, and that it had thus been a consequence of their own conduct. In so far as it had found that the lack of an individualised procedure for their removal had been the consequence of the applicants’ own conduct, the Court could not hold the respondent State responsible for the lack of a legal remedy in Melilla enabling them to challenge that removal.

13 February 2020 | Judicial Body: Council of Europe: European Court of Human Rights | Legal Instrument: 1950 European Convention on Human Rights (ECHR) | Topic(s): Effective remedy - Expulsion - Non-refoulement - Rejection at border | Countries: Côte d'Ivoire - Mali - Morocco - Spain

The Court found in particular that Article 5 was applicable to the applicants’ case as their presence in the transit zone had not been voluntary; they had been left to their own devices for the entire period of their stay, which had lasted between five and 19 months depending on the applicant; there had been no realistic prospect of them being able to leave the zone; and the authorities had not adhered to the domestic legislation on the reception of asylum-seekers. Given the absence of a legal basis for their being confined to the transit zone, a situation made worse by them being impeded in accessing the asylum system, the Court concluded that there had been a violation of the applicants’ rights protected by Article 5 § 1. The conditions the applicants had lived in had also been appalling: they had had to sleep in the transit zone, a busy and constantly lit area, with no access to washing or cooking facilities. There had thus also been a breach of Article 3 as their treatment had been degrading.

21 November 2019 | Judicial Body: Council of Europe: European Court of Human Rights | Legal Instrument: 1950 European Convention on Human Rights (ECHR) | Topic(s): Airports - Arbitrary arrest and detention - Freedom from torture, inhuman and degrading treatment - Prison or detention conditions - Right to liberty and security - Transit | Countries: Iraq - Palestine, State of - Russian Federation - Somalia - Syrian Arab Republic

The case concerned the removal from Switzerland to Afghanistan of an Afghan national of Hazara ethnicity who was a Muslim convert to Christianity. The European Court of Human Rights held, unanimously, that there would be: a violation of Article 3 of the European Convention on Human Rights in the event of the applicant’s return to Afghanistan.

5 November 2019 | Judicial Body: Council of Europe: European Court of Human Rights | Legal Instrument: 1950 European Convention on Human Rights (ECHR) | Topic(s): Freedom from torture, inhuman and degrading treatment - Refugee / Asylum law - Religious persecution (including forced conversion) | Countries: Afghanistan - Switzerland

The Court further notes that the move in international law towards adopting alternative measures to the administrative detention of migrants appears to concern not only children, but also their parents. violation of the applicants’ rights under Article 5 § 4 of the Convention on account of the failure of both the Istanbul Magistrates’ Court and the Constitutional Court to conduct a review of the lawfulness of their detention in an effective and speedy manner. The Court notes, once again, that the review mechanism set out under Law no. 6458 appears to be wholly ineffective in a case, such as the present one, where the detention of a minor in the immigration context is not based on an administrative decision.

17 October 2019 | Judicial Body: Council of Europe: European Court of Human Rights | Legal Instrument: 1950 European Convention on Human Rights (ECHR) | Topic(s): Arbitrary arrest and detention - Effective remedy - Freedom from torture, inhuman and degrading treatment - Prison or detention conditions - Right to liberty and security | Countries: Russian Federation - Türkiye

The Court held that "- that O.D.’s removal to Syria would amount to a violation of Article 2 (right to life) and Article 3 (prohibition of torture and inhuman or degrading treatment) of the European Convention on Human Rights - that there had been a violation of Article 13 (right to an effective remedy), read in conjunction with Articles 2 and 3. The Court found, in particular, that in view of the overall situation in Syria and the individual risk faced by the applicant it could not be established that he could safely return to Syria. The Court also found that the applicant had not had access to an effective remedy, noting that his request for a stay of execution of the expulsion order had been rejected on the grounds that he posed a threat to national security, and that the proceedings relating to the application for refugee status or humanitarian status had not been aimed at reviewing the lawfulness of the expulsion order or its effects in relation to the complaints concerning the right to life and the right not to be subjected to ill-treatment. ..."

10 October 2019 | Judicial Body: Council of Europe: European Court of Human Rights | Legal Instrument: 1950 European Convention on Human Rights (ECHR) | Topic(s): Effective remedy - Freedom from torture, inhuman and degrading treatment - Right to life | Countries: Bulgaria - Syrian Arab Republic

The case concerned media access to reception facilities for asylum-seekers. The applicant in the case, a journalist for an Internet news portal, complained about the authorities’ refusal of his request to carry out interviews and take photographs at the Debrecen Reception Centre, thus preventing him from reporting on the living conditions there. The Court stressed that research work was an essential part of press freedom and had to be protected. It was not convinced that restricting the applicant’s ability to carry out such research work, which had prevented him from reporting first-hand on a matter of considerable public interest, namely the refugee crisis in Hungary, had been sufficiently justified. In particular, the authorities had only given summary reasons, namely possible problems for the safety and private lives of asylum-seekers, for their refusal, without any real weighing up of the interests at stake.

8 October 2019 | Judicial Body: Council of Europe: European Court of Human Rights | Legal Instrument: 1950 European Convention on Human Rights (ECHR) | Topic(s): Freedom of expression | Countries: Hungary

The case concerned the conditions of detention of Syrian, Afghan and Palestinian nationals in the “hotspots” of Vial and Souda (Greece), and the lawfulness of their detention in those camps. The Court considered that the authorities had done all that could reasonably be expected of them in the Vial camp to meet the obligation to provide care and protection to unaccompanied minors. The other applicants had been transferred immediately – or within ten days – from the Vial camp to the Souda camp. The Court also held that the conditions of detention in the Souda camp did not amount to inhuman or degrading treatment. The Court reiterated its previous finding that a period of one month’s detention in the Vial camp should not be considered excessive, given the time needed to comply with the relevant administrative formalities. In addition, the length of the applicants’ detention once they had expressed their wish to apply for asylum had been relatively short. In contrast, the applicants, who did not have legal assistance, had not been able to understand the content of the information brochure; in particular, they were unable to understand the material relating to the various appeal possibilities available under domestic law.

3 October 2019 | Judicial Body: Council of Europe: European Court of Human Rights | Legal Instrument: 1950 European Convention on Human Rights (ECHR) | Topic(s): Access to procedures - Arbitrary arrest and detention - Freedom from torture, inhuman and degrading treatment - Legal representation / Legal aid - Right to liberty and security | Countries: Afghanistan - Greece - Palestine, State of - Syrian Arab Republic