Case Law

On 4 September 2019, the Supreme Court adopted its Resolution with regard to compensation for destroyed commercial premises caused by acts of terrorism. On 4 November 2016, the applicant referred to a first-instance court, requesting a compensation for her commercial premises destroyed during the Anti-terrorist operation (ATO) in Mariupol. The main argumentation was based on the lack of a special order regulating payment of compensation for the ATO consequences in Donetsk and Luhansk oblasts and applicability of relevant European Court of Human Rights jurisprudence. A first-instance court stated that Ukraine should compensate damages/destructions caused by an act of terrorism from the State Budget funds irrespective of Ukraine’s culpability. Simultaneously, the state preserves the right of recourse claim on reimbursing compensation from those liable for acts of terrorism. The Court of Appeals supported this decision. The Supreme Court stated that under Protocol 1 to the European Human Rights Convention an applicant has a right to claim compensation for her damaged or destroyed property irrespective of the fact that the national legal framework on compensatory mechanism is non-existent. It underlined that there is a need to clarify which obligations of the state were violated. Non-fulfilment of positive obligations (introducing a legal framework to ensure that property right violated in the course of the conflict may be effectively protected) or negative obligations (which requires non-interference with the peaceful ownership) will result in the different level of compensation. Since the decisions of lower instance courts did not clarify which particular obligations of the state (positive or negative) were violated, the Supreme Court re-submitted this case to a first-instance court for re-examination.

4 September 2019 | Judicial Body: Ukraine: Supreme Court | Legal Instrument: 1950 European Convention on Human Rights (ECHR) | Topic(s): Terrorism - Ukrainians | Countries: Ukraine

Relying on Article 3 (prohibition of inhuman or degrading treatment) of the European Convention on Human Rights, Mr O.O. complained that the Russian authorities had failed to consider his arguments that he would face a real risk of ill-treatment if deported to Uzbekistan. He also alleged that his deportation had disregarded the interim measure indicated by the European Court, in breach of Article 34 (right of individual petition) of the European Convention. Violation of Article 3 – on account of the authorities deporting Mr O.O. to Uzbekistan Violation of Article 34

21 May 2019 | Judicial Body: Council of Europe: European Court of Human Rights | Legal Instrument: 1950 European Convention on Human Rights (ECHR) | Topic(s): Deportation / Forcible return - Freedom from torture, inhuman and degrading treatment | Countries: Russian Federation - Uzbekistan

Effective domestic remedy: Effectiveness of a suspensive remedy, in respect of an asylum request submitted after the application had been lodged with the Court: admissible As to the merits, the Court went on to find, unanimously, that there would be no violation of Article 3 if the decision to deport the applicant to Algeria were implemented.

29 April 2019 | Judicial Body: Council of Europe: European Court of Human Rights | Legal Instrument: 1950 European Convention on Human Rights (ECHR) | Topic(s): Exhaustion of domestic remedies - Refugee status determination (RSD) / Asylum procedures | Countries: Algeria - France

31 January 2019 | Judicial Body: Council of Europe: European Court of Human Rights | Legal Instrument: 1950 European Convention on Human Rights (ECHR) | Topic(s): Asylum policy - Expulsion | Countries: Georgia - Russian Federation

Violation of Article 3 - Prohibition of torture (Article 3 - Expulsion) (Conditional) (Uzbekistan) Violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention) Violation of Article 5 - Right to liberty and security (Article 5-4 - Review of lawfulness of detention)

22 January 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 - Freedom from torture, inhuman and degrading treatment | Countries: Russian Federation - Tajikistan - Uzbekistan

whether the applicants had actually submitted asylum applications at the border - the Court was satisfied that the applicants had submitted asylum applications, either orally or in writing, at the Lithuanian border on 16 April, 11 May and 22 May 2017. However, border guards had not accepted those applications and had not forwarded them to a competent authority for examination and status determination, as required by domestic law. Furthermore, border guards’ reports to their senior officers had not made any mention of the applicants’ wish to seek asylum on any of the three occasions – there were no references to the writing of “azul” on the decisions, nor to the written asylum application. There was also no indication either in those reports or in any other documents submitted to the Court that the border guards had attempted to clarify what was the reason – if not seeking asylum – for the applicants’ presence at the border without valid travel documents. Nor did it appear that there had been any assessment at all of whether it had been safe to return the applicants – a family with five very young children – to Belarus, which was not a Contracting Party to the European Convention on Human Rights and, according to publicly available information, could not be assumed to be a safe third country for Chechen asylum-seekers. As a result, the applicants had been returned to Belarus without there being any assessment of their asylum claims. It was therefore evident that measures which the Government had claimed constituted adequate safeguards against the arbitrary removal of asylum-seekers – such as the supervision of border guards by superior officers or the monitoring of borders by non-governmental organisations – had not been effective in the applicants’ case. Conclusion: violation (four votes to three).

11 December 2018 | Judicial Body: Council of Europe: European Court of Human Rights | Legal Instrument: 1950 European Convention on Human Rights (ECHR) | Topic(s): Rejection at border | Countries: Lithuania - Russian Federation

4 December 2018 | 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 - Prison or detention conditions | Countries: Cyprus - Viet Nam

Non-violation de l'article 5 - Droit à la liberté et à la sûreté (Article 5-1 - Arrestation ou détention régulières)

6 November 2018 | 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 - Right to liberty and security | Countries: Belgium - Sri Lanka

Violation of Article 3 - Prohibition of torture (Article 3 - Extradition) (Conditional) (Tajikistan) Violation of Article 3 - Prohibition of torture (Article 3 - Extradition) (Conditional) (Uzbekistan) Violation of Article 5 - Right to liberty and security (Article 5-1-f - Extradition)

23 October 2018 | 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 | Countries: Russian Federation - Tajikistan - Uzbekistan

The second subparagraph of Article 46(2) of Directive 2013/32/EU of the European Parliament and of the Council of 26 June 2013 on common procedures for granting and withdrawing international protection must be interpreted as meaning that subsidiary protection status, granted under legislation of a Member State such as that at issue in the main proceedings, does not offer the ‘same rights and benefits as those offered by the refugee status under Union and national law’, within the meaning of that provision, so that a court of that Member State may not dismiss an appeal brought against a decision considering an application unfounded in relation to refugee status but granting subsidiary protection status as inadmissible on the grounds of insufficient interest on the part of the applicant in maintaining the proceedings where it is found that, under the applicable national legislation, those rights and benefits afforded by each international protection status are not genuinely identical. Such an appeal may not be dismissed as inadmissible, even if it is found that, having regard to the applicant’s particular circumstances, granting refugee status could not confer on him more rights and benefits than granting subsidiary protection status, in so far as the applicant does not, or has not yet, relied on rights which are granted by virtue of refugee status, but which are not granted, or are granted only to a limited extent, by virtue of subsidiary protection status.

18 October 2018 | Judicial Body: European Union: Court of Justice of the European Union | Legal Instrument: 1950 European Convention on Human Rights (ECHR) | Topic(s): Complementary forms of protection - Decision on admissibility - Effective remedy | Countries: Afghanistan - Slovenia