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ELENA Weekly Legal Update (EWLU)

14 June 2019
 

Summary

 

European Court of Human Rights


Sh.D. and Others v. Greece, Austria, Croatia, Hungary, Northern Macedonia, Serbia and Slovenia: Court finds violations of children’s rights in Greece 

On 13 June 2019, the European Court of Human Rights (ECtHR) released its judgment in the case of Sh.D. and others v. Greece, Austria, Croatia, Hungary, Northern Macedonia, Serbia and Slovenia (application no. 14165/16). The applicants complain under Article 3 of the Convention, concerning conditions in Greek police stations and Idomeni camp, and under Article 5 § 1 regarding “protective custody” in police stations.

The applicants, five unaccompanied children of Afghan origin, arrived to Greece in early 2016. In February 2016, they were apprehended by police and orders were made for their deportation, with the applicants given one month to leave Greece. The applicants subsequently attempted to cross to North Macedonia but were stopped by border guards. One applicant was arrested by Greek police and placed in “protective custody” at Polykastro police station for 24 days. Four applicants were later arrested on Chios and their deportation was ordered; they crossed to the Greek mainland and made their way to Idomeni camp, where they lived for approximately one month. After which, the applicants moved between various shelters. One applicant was detained by police while attempting to travel to Italy, and was placed in “protective custody” at Igoumenitsa Port police station, and later at Filiata police station. 

The Court recognised that it had previously found a violation of Article 3 for the detention of children for even the short period of a few days. It held that conditions in police stations can create the feeling of isolation and can negatively affect physical and mental well-being. It found that such conditions are not suitable for children and, in the instant case, the Court found the conditions of detention in Polykastro and Filiata police stations amounted to degrading treatment, in violation of Article 3.   

With regard to conditions in Idomeni camp, the Court acknowledged that the children were not detained and that the camp was not under the control of state authorities. However, the Court emphasised the positive obligations of the State to protect and take care of unaccompanied migrant children under Article 3, as well as under Article 20 of the Convention on the Rights of the Child (CRC), under which a state must provide alternative care for a child when they are deprived of their family environment. The Court found that conditions in Idomeni camp were not suitable for children and held that the authorities failed to meet their obligation to take charge of and protect the applicants who are particularly vulnerable on account of their age.

The Court held that the “protective custody” of three of the applicants in police stations amounted to a deprivation of liberty. It reiterated that “protective custody” as provided for in Greek law under Article 118 of Decree No 141/1991 was not designed for unaccompanied migrant minors and does not set a time limit. With reference to Article 3 of the CRC on the best interests of the child and the Asylum Procedures Directive 2005/85/EC, under which states must avoid the detention of minors, the Court held that the detention of the applicants was not lawful within the meaning of Article 5 § 1.

ECRE along with the ICJ and the Aire Centre intervened as a third party in this case. The third party intervention can be read here.  

Based on an unofficial translation by the EWLU team. 

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Ozdil and others v. Moldova: Detention and extradition to Turkey of five schoolteachers in breach of Convention 

On 11 June 2019, the ECtHR published its ruling in the case of Ozdil and others v. Moldova (application no. 42305/18). The five applicants, Turkish nationals who were resident in Moldova, alleged that they had been unlawfully deprived of their liberty and extradited to Turkey contrary to Articles 5 § 1 and 8 of the Convention and Article 1 of Protocol No. 7. 

The applicants, Turkish nationals, were teachers in a private chain of schools in Moldova. Following public statements by the Turkish authorities describing the schools as related to the Fetullah Gülen movement, allegedly responsible for the attempted coup in Turkey in 2016, and the teachers as terrorists, the applicants applied for asylum. Before they received decisions, they were arrested and transferred on the same morning by chartered plane to Turkey. Their families received the rejections of their asylum claims on grounds of national security days later and only subsequently learned that the applicants were in Turkey.
 
With regard to an alleged violation of Article 5 § 1, the Court reiterated the general principle established in case law that detention is arbitrary where, despite complying with national law, there has been an element of bad faith or deception on the part of the authorities or where the domestic authorities neglected to attempt to apply the relevant legislation correctly. The Court held that in the instant case, the Moldovan authorities not only failed to give the applicants a choice of jurisdiction but also deliberately transferred them directly to the Turkish authorities. It further found that the material indicated that the arrests were planned in advance and that they occurred in such a manner as to take the applicants by surprise. The Court found that the applicants’ deprivation of liberty on 6 September 2018 was neither lawful nor necessary within the meaning of Article 5 § 1 (f), nor devoid of arbitrariness. It held that the applicants were removed from Moldova by way of an extra-legal transfer which circumvented the guarantees offered by domestic and international law.
 
With regard to an alleged violation of Article 8, the Court recognized the long period of time the applicants had lived in Moldova. It held that their extra-legal transfer and exclusion from Moldovan territory put an end to their integration and radically disrupted their private and family lives. It reiterated the necessary guarantees that should be provided against arbitrariness and emphasized that the domestic courts refused to examine the applicants’ court actions on very formalistic grounds. It found that the interference with their private and family lives was not in accordance with Article 8 of the Convention.

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S.S. and B.Z. v. Russia: Extradition to Tajikistan and Uzbekistan in violation of Convention

On 11 June 2019, the ECtHR released its ruling in the case of S.S. and B.Z. v. Russia (application nos. 35332/17 and 79223/17). The Court found that extradition of the applicants to Tajikistan and Uzbekistan, where they were charged with political and religious crimes, would be in violation of the Convention.

The Court held that the applicants had consistently and specifically argued that they had been persecuted for religious extremism in their countries of origin, where they were accused of religiously and politically motivated crimes. The Tajik and Uzbek authorities had therefore identified the applicants as part of groups whose members have previously been found to be at real risk of being subject to ill-treatment.

The Court found that the Russian authorities had at their disposal sufficient information to indicate a real risk of ill-treatment in the applicants’ countries of origin and held that they had failed to rigorously scrutinize the applicants’ claims. The Court ruled that there would be a violation of Article 3 if the applicant in B.Z. v. Russia were to be removed, and that there has been a violation of Article 3 in the case of S.S. v. Russia in his removal to Tajikistan.

The Court further found a violation of Article 3 with regard to the detention conditions of S.S., and a violation of Article 5 § 4 regarding the excessive length of appeals for detention orders. With regard to B.Z. and with reference to its own recent case law, the Court found a violation under Article 5 § 4 regarding the lack of procedure for review of the lawfulness of his detention.

The Court lastly found a violation of Article 34 for the Russian authorities’ failure to comply with their obligations under Rule 39 of the Rules of the Court on interim measures. It held that the Representative of the Russian Federation to the European Court of Human Rights was duly notified of the interim measure at least twenty-four hours before the applicant’s extradition.

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Council of Europe


Committee of Ministers: Latest decision in status of execution of M.S.S. and Rahimi groups v. Greece

The Council of Europe Committee of Ministers released its decision in the supervision of the execution of the M.S.S. and Rahimi groups v. Greece following its 1348th meeting from 4-6 June 2019.

With regard to asylum procedures, the Committee recognized the improvements made by Greek Authorities and the notable increase in the overall rate of granting asylum. However, the Committee expressed concern with the delays in asylum procedures, especially with the increase in arrivals, as well as the deficiencies of the appeals procedure which have been reported by the Greek Ombudsman and expert NGOs.

The Committee recognized progress made in the area of living conditions of asylum applicants, particularly given the continued high number of arrivals. However, they expressed concern that the living conditions remain critical and called on the authorities to step up efforts. It further called on authorities to implement the recommendations of the Council of Europe Commissioner for Human Rights on the need to improve health care provision to asylum seekers and irregular migrants in detention.

Concerning unaccompanied minors, the Committee welcomed the new law on guardianship but expressed concern about the inadequate number of suitable places available in accommodation facilities for minors and the significant number of minors placed in “protective custody” or in reception centres at the borders. It called on the authorities to intensify their efforts to increase the capacity of accommodation suitable for unaccompanied minors.

With regard to detention, the Committee noted that domestic and ECtHR case law has evolved to grant access to an effective remedy for those held in detention and decided to cease monitoring of this aspect. It noted that the Committee for the Prevention of Torture (CPT) visits in 2018 found that some immigration detention centres provided decent conditions, but expressed concern at the number of police stations and immigration facilities found by the CPT to be below Convention standard, as well as at the continued detention of unaccompanied minors.

The Committee decided to resume examination of these cases at their September 2020 DH meeting.

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National Developments


Greece: Piraeus Administrative Court of Appeal Suspends Dublin III Transfer to Bulgaria 

On 15 May 2019, the Piraeus Administrative Court of Appeal issued an interim order suspending the transfer to Bulgaria under Regulation 604/2013 (Dublin III) of an Afghan couple and their three minor children.

The applicants applied for asylum in Greece on 19 October 2017 at the Piraeus Regional Asylum Office. After a EURODAC hit indicated that the applicants had previously applied for asylum in Bulgaria, their applications were found to be inadmissible and their transfer under Article 29 (1) Dublin III was ordered.

The applicants appealed this decision to the Independent Appeals Authority and submitted that there were no assurances that Dublin returnees have access to asylum procedures in Bulgaria and that the reception conditions in the country amounted to inhuman and degrading treatment. The Independent Appeals Authority held that updated reports on the asylum system in Bulgaria indicated that there were no systemic deficiencies in asylum procedures and the reception conditions did not indicate a potential risk of inhuman or degrading treatment under Article 4 of the Charter of Fundamental Rights of the EU.

The applicants sought to annul this decision before the Piraeus Administrative Court of Appeal and requested an interim measure to suspend their transfer. The applicants re-submitted their claim that reception conditions in Bulgaria were tantamount to inhuman and degrading treatment and, citing the 99% rejection rate for applicants of asylum from Afghanistan in Bulgaria, they claimed that they would likely be returned to Afghanistan if they were transferred.

In assessing the case, the Court held that the applicants’ fear of refoulement to Afghanistan was well founded and concluded that such transfer would constitute irreparable harm, justifying interim protection. The Court therefore issued an interim order to suspend the transfer.

Based on an unofficial translation by the EWLU team. Thank you to Stavros Papageorgopoulos, Legal Officer at ECRE, for his assistance in summarizing this case.

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Netherlands: Asylum applicants cannot be detained at border if appeal is still possible

On 5 June 2019, the Dutch Council of State ruled in two separate cases regarding detention at the border. The State Secretary for Justice and Security submitted the appeal against decisions from the Court of Haarlem from 6 November 2018.

The judgments concern two applicants who applied for asylum upon arrival to the Netherlands under the border procedure. The State Secretary found their applications for asylum to be manifestly unfounded and consequently refused them entry to the Netherlands, ordered they leave the country immediately and issued an entry ban. Pursuant to Article 6 (6) of the Aliens Act 2000, the applicants were detained as there was a risk of absconding or obstructing their return. In an appeal to the Court of Haarlem, the Court found that, Article 6 (6) of the Aliens Act 2000 is not a sound basis for the deprivation of liberty of foreign nationals during the appeals period. It followed the Court of Justice of the European Union (CJEU) judgment in Gnandi (C-181/16) and order in C., J. and S. (C-269/18), under which it was found that during the appeals period, all legal consequences of the rejection of the asylum application, including the return decision, are suspended. Thus, as Article 6 (6) of the Aliens Act 2000 implements Article 15 of the Returns Directive 2008/115/EC, the Court of Haarlem found that the applicants could not be deprived of their liberty during the appeals period.

In the instant appeal submitted by the State Secretary, the Council of State held that it does not follow from the judgment in Gnandi and order in C., J. and S. that, in the border procedure, the legal effects of the decision on entry are also suspended when appeals are lodged against the rejection of the asylum application. It found that EU law does not preclude the deprivation of liberty of asylum applicants during the appeals period. However, the Court found that at present, national legislation does not provide an appropriate basis for the deprivation of liberty of asylum applicants who are in that situation.

It held that the deprivation of liberty of asylum applicants during the time allowed for appeals is possible only in accordance with the Reception Conditions Directive 2013/33/EC (rRCD). However, the current laws for deprivation of liberty in the above situation, in particular Article 6 (6) of the Aliens Act 2000, do not comply with the rRCD. Given that there are currently no suitable alternatives for residence at the external border for this category of persons, the Court ruled that the applicants should be granted access to the Netherlands. Furthermore, it held that Article 3 (6) of the Aliens Act 2000, which includes the obligation to refuse entry to the Netherlands immediately upon rejection of the asylum application in the border procedure, is unenforceable in practice and must not be applied.

The Court upheld the ruling of the Court of Haarlem, stating that while EU law does not preclude the deprivation of liberty of asylum seekers during the appeals period, at present, national legislation does not provide an appropriate basis for this deprivation of liberty. It stated that in order to deprive applicants for asylum of their liberty in the above situation, the legislator will have to introduce a legal basis on which to do so, in conformity with the applicable EU law.

Based on an unofficial translation by the EWLU team. Thank you to Ruben Fierens for his assistance with the translation of this case.

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The purpose of the ELENA legal updates is to inform asylum lawyers and legal organizations supporting asylum seekers and refugees of recent developments in the field of asylum law. Please note that the information provided is taken from publicly available information on the internet. Every reasonable effort is made to make the content accurate and up to date at the time each item is published but no responsibility for its accuracy and correctness, or for any consequences of relying on it, is assumed by ECRE/ELENA. The contents of this publication can in no way be taken to reflect the views of ECRE/ELENA and in no way purport to provide an exhaustive update on asylum law developments across Europe. For more up to date information, additions, corrections and comments please contact Julia Zelvenska (jzelvenska@ecre.org).






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