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ELENA Weekly Legal Update (EWLU)

18 October 2024
 

Summary


Council of Europe

Council of Europe


ECtHR: Hungary’s detention of asylum applicants and unaccompanied minors in transit zones violates the ECHR


On the 3rd October 2024, the European Court of Human Rights (ECtHR) delivered judgments in three cases against Hungary: M.H. v. Hungary (Application no. 652/18), K.K.S. v. Hungary (Application no. 32660/18), and A.P. v. Hungary (Application no. 17089/19). These cases involved asylum applicants and unaccompanied minors who were confined in the Röszke and Tompa transit zones. The applicants complained about poor living conditions, lack of access to adequate medical care, insufficient educational opportunities, and degrading treatment. In the case of A.P. v. Hungary, the applicant also suffered two days of food deprivation. All applicants described the transit zones as prison-like environments and highlighted the lack of sufficient adult supervision, psychological support, and meaningful activities.
 
The Court found that Hungary violated Article 3 of the European Convention on Human Rights (ECHR) in all three cases due to the poor living conditions, lack of adequate care, and prison-like environment, which exceeded the minimum threshold of severity. In the cases of M.H. and K.K.S., the ECtHR emphasised that the prolonged detention of vulnerable minors without proper care or educational opportunities amounted to inhuman treatment. In A.P.'s case, the deprivation of food, along with the harsh conditions, also constituted a violation of Article 3 ECHR. Additionally, the Court ruled that all three applicants’ confinement in the transit zones violated Article 5 (1) and (4) ECHR, as their detention was arbitrary, lacking sufficient legal safeguards, and they were unable to challenge the lawfulness of their detention effectively.
 
In all cases, the ECtHR awarded non-pecuniary damages for the distress caused by Hungary’s violations of the applicants’ rights. M.H. and K.K.S. were each awarded €3,000, while A.P. received €5,000 due to the additional deprivation of food. All applicants were also compensated for costs and expenses, ranging from €1,000 to €1,500.

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ECtHR: Inadmissibility decision on the case of Hungary's confinement of an unaccompanied Afghan minor in a transit zone

On the 3rd October 2024, the European Court of Human Rights (ECtHR) delivered an inadmissibility decision in the case of Z.A. v. Hungary (Application No  30056/18).
 
The case concerned the conditions of confinement in the Röszke transit zone of an unaccompanied Afghan child who applied for asylum in Hungary. The applicant was placed in the Röszke transit zone in November 2017 and stayed there for 46 days. He claimed that the conditions were inhuman, citing insufficient personal space, inadequate heating, limited meals, lack of psychological support, and poor educational and leisure activities. Additionally, he argued that his confinement violated his rights under Article 3 and Article 5 of the European Convention on Human Rights (ECHR), and he also alleged a lack of an effective remedy under Article 13 ECHR.
 
The Court found that the conditions did not meet the threshold of inhuman or degrading treatment under Article 3 ECHR due to the relatively short duration of his stay. Additionally, relying on its previous caselaw, it ruled that his confinement did not constitute a deprivation of liberty under Article 5 ECHR, and that the complaint under Article 13 read in conjunction with Article 3 ECHR was inadmissible since the Article 3 ECHR claim was rejected. Therefore, the Court unanimously declared the application inadmissible.

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ECtHR: Cyprus's summary return of asylum applicants to Lebanon violated their rights under the ECHR

On the 4th of October 2024, the European Court of Human Rights (ECtHR) ruled in the case of M.A. and Z.R. v. Cyprus (Application No 50510/21). The case involved two Syrian nationals who, after fleeing the war in Syria and facing harsh conditions in Lebanon, attempted to apply for asylum in Cyprus. Their boat was intercepted by the Cypriot coastguard, and despite expressing their intent to present an asylum application, they were summarily returned to Lebanon without an individual assessment of their claims. The applicants alleged violations of Article 3, Article 13 of the European Convention on Human Rights (ECHR) and Article 4 of Protocol No. 4 thereof.
 
The ECtHR examined whether the actions of the Cypriot authorities violated these articles. The Court emphasized that Cyprus had an obligation to assess the risk of refoulement, particularly given the potential for the applicants to face persecution or serious harm if returned to Syria from Lebanon. The Court criticized the authorities for failing to conduct individualized assessments, highlighting that reports documented the substandard living conditions faced by Syrian refugees in Lebanon, which amounted to degrading treatment. Furthermore, the Court ruled that the collective nature of the expulsion violated Article 4 of Protocol No. 4, as the authorities did not evaluate the individual circumstances of the applicants.  In that regard, the ECtHR concluded that Cyprus failed to provide essential evidence, such as interview records or forms required under the Bilateral Agreement with Lebanon, regarding its interactions with the applicants, leaving their rights inadequately addressed. This lack of information raised issues similar to those identified in Khlaifia and Others and Hirsi Jamaa and Others, particularly concerning the denial of legal assistance and failure to inform the applicants of their rights. The Court noted that the absence of individual decisions was unjustified, as the applicants had fully cooperated, referencing N.D. and N.T. v. Spain. Lastly, the Court dismissed the government’s claim that the applicants could have entered Cyprus by lawful means, applying for entry visas; in this respect, the Court noted that the nature of an entry visa, which is subject to financial and other requirements, did not offer a genuine opportunity to the applicants to challenge their expulsion, as required by Article 4 of Protocol No. 4. 
 
Additionally, the Court found that the applicants were deprived of effective means to challenge their expulsion, violating Article 13. Ultimately, the ECHR concluded that Cyprus had violated the applicants' rights by exposing them to the risk of inhuman treatment and collective expulsion without proper assessment. The Court held that Cyprus was to pay 22,000 € for each applicant in respect of non-pecuniary damage and 4,700 € jointly in respect of costs and expenses.

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European Union


CJEU: Designation of Moldova as a "Safe Country of Origin" under Czech law requires uniform application and regular reassessment of safety criteria

On the 4th of October 2024, the Court of Justice of the European Union (CJEU) delivered its judgment in the case of CV v. Ministerstvo vnitra České republiky (C-406/22). The case arose from a request for a preliminary ruling regarding the designation of Moldova as a "safe country of origin" under Czech law, specifically its compatibility with the recast Directive 2013/32/EU (“Asylum Procedures Directive”). The Czech court questioned whether the designation was valid, particularly in light of Moldova's classification, excluding Transnistria, and whether a country invoking derogations under Article 15 of the European Convention on Human Rights (ECHR) could still be considered safe.
 
The CJEU addressed two key issues. First, it clarified that a country's invocation of Article 15 ECHR, which allows for derogations during emergencies, does not automatically disqualify it from being a safe country of origin. However, national authorities must evaluate whether such derogations affect fundamental rights protected by Article 15(2) ECHR, including the right to life and the right to protection from torture. The Court emphasized that the presumption of safety is rebuttable if specific risks exist and that regular reviews of designations are required under Article 37(2) of the Asylum Procedures Directive. Second, the Court ruled that designating only part of a country as "safe," as the Czech Republic did regarding Moldova, is incompatible with EU law. It highlighted that the Asylum Procedures Directive requires safety designations to apply uniformly across an entire country.

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CJEU: Systematic discrimination against Afghan women under Taliban Rule constitutes persecution under the Qualification Directive

On the 4th of October 2024, the Court of Justice of the European Union (CJEU) delivered its judgment in the joined cases of AH and FN v. Bundesamt für Fremdenwesen und Asyl (C-608/22, C-609/22). The case arose from a request by the Austrian authorities, asking whether the discriminatory measures imposed by the Taliban against Afghan women constituted "acts of persecution" under the recast Directive 2011/95/EU (“Qualification Directive”) and whether an individualized assessment of each applicant’s circumstances was necessary to grant refugee status. The applicants, both Afghan women, argued that the systematic discrimination they faced under the Taliban regime, including restrictions on education, employment, and freedom of movement, placed them at risk of persecution due to their gender. Austria had initially rejected their asylum applications, granting only subsidiary protection.
 
The CJEU examined the scope of the Qualification Directive and the international instruments underpinning it, such as the 1951 Geneva Convention and the European Convention on Human Rights (ECHR), to determine whether the Taliban's discriminatory measures against Afghan women could be classified as acts of persecution.
 
The Court first considered whether an accumulation of discriminatory measures imposed by the Taliban regime, including restrictions on education, employment, freedom of movement, and legal protection from gender-based violence, could be deemed persecution under Article 9(1)(b) of the Qualification Directive. This provision defines persecution as the accumulation of various human rights violations that, taken together, are sufficiently severe to affect an individual in a manner comparable to a serious violation of fundamental rights. The CJEU emphasized that individual acts, such as forced marriage or lack of protection from domestic violence, in themselves constitute persecution, as they violate non-derogable rights under Article 3 and Article 4 of the ECHR, which prohibit torture and inhuman treatment, as well as slavery and servitude. Even if some of the measures, such as restrictions on education or employment, do not individually reach the threshold of persecution under Article 9(1)(a) of the Qualification Directive, their cumulative effect creates a situation in which Afghan women are systematically denied human dignity. This conclusion was supported by the CJEU’s interpretation of Recital 16 of the Qualification Directive, which mandates respect for fundamental rights, particularly human dignity, as recognized in Article 1 of the EU Charter of Fundamental Rights. The Court also drew upon the Istanbul Convention and the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW), both of which affirm the need to protect women from gender-based violence and discriminatory practices, and state that such measures can constitute persecution within the meaning of Article 1(A) of the Geneva Convention.
 
The CJEU further clarified that it was unnecessary to conduct an individualized assessment of personal circumstances beyond gender and nationality in cases involving Afghan women. Citing Article 4(3) of the Qualification Directive, the Court recognised that while individual assessments are generally required to establish whether an applicant faces a real risk of persecution, Afghan women, by virtue of their gender and the specific context of the Taliban regime, face such severe systemic discrimination that the risk of persecution is inherently established.
                                                                                                                     
Thus, the CJEU concluded that the situation of Afghan women under Taliban rule justified the automatic recognition of refugee status without the need for additional evidence of individualized persecution.

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CJEU: Suspension of readmissions by a third country does not preclude its designation as "safe" under the Asylum Procedures Directive

On the 4th of October 2024, the Court of Justice of the European Union (CJEU) delivered its judgment in the case of Elliniko Symvoulio gia tous Prosfyges (C-134/23). The case arose from a preliminary reference by the Greek Council of State regarding the classification of Türkiye as a "safe third country" under the recast Directive 2013/32/EU (“Asylum Procedures Directive“) and its compatibility with Article 18 of the Charter of Fundamental Rights of the European Union (“Charter”). The applicants, non-profit organizations supporting refugees, challenged the designation of Turkey as a safe third country for asylum applicants from specific countries (Syria, Afghanistan, Pakistan, Bangladesh, and Somalia), arguing that Türkiye had refused to readmit these individuals since 2020, raising concerns about the legality of such designation.
 
The Court addressed the interpretation of Article 38 of the Asylum Procedures Directive, which sets out the conditions for designating a country as a "safe third country" for asylum applicants. It ruled that Article 38, read in conjunction with Article 18 of the Charter, does not preclude a Member State from classifying a third country as generally safe for certain categories of applicants, even if that country has suspended readmissions of such individuals. The Court clarified that, while a third country must generally ensure admission or readmission for the designation to be valid, the mere suspension of such readmissions does not automatically invalidate the classification. Furthermore, the Court held that proven admission or readmission is not a prerequisite under Article 38(2) for designating a "safe third country." It emphasized that, Article 38(4) of the Asylum Procedures Directive, which obliges Member States to provide access to an asylum procedure if a third country refuses to admit the applicant, does not prevent a third country from being classified as a "safe third country" even when it declines to admit or readmit applicants for international protection.
 
However, in cases where readmission is no longer possible, the Member State must ensure that the asylum applicant has access to the asylum process within the EU. In this respect, the Court ruled that under Article 38(4) of the Asylum Procedures Directive, if a third country designated as safe suspends admission or readmission of applicants, the Member State must grant access to an asylum procedure in line with the principles and guarantees described in Articles 6 to 30 of that Directive. If the third country refuses readmission, the Member State cannot reject the application as inadmissible under Article 33(2)(c) or delay its examination, which must be conducted individually within the set time limits. Recalling the Bundesrepublik Deutschland judgment (C-216/22), the Court indicated that this interpretation of Article 38 of the Asylum Procedures Directive ensures the right to seek international protection, as guaranteed by Article 18 of the Charter, remains effective.

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NGOs


RSA: Publication of a policy note on immigration detention in Greece in the first half of 2024


Refugee Support Aegean (RSA) published a policy note on immigration detention in Greece during the first half of 2024. According to RSA, Greece continues arbitrarily deporting and detaining refugees and migrants, including those from countries like Syria and Afghanistan, where returns are neither legal nor practically possible. Official statistics from the first half of 2024 highlight this ongoing violation of international obligations.
 
In the first half of 2024, Greek authorities issued 12,877 return and deportation decisions, primarily affecting nationals from Afghanistan (2,177) and Syria (1,945). Of the 2,709 returns executed, most involved nationals from Albania (966) and Georgia (855). Only 182 decisions (1.4%) were appealed, with a low 3.8% approval rate.
 
A total of 12,772 detention orders were issued, with a 99.2% detention rate for deportations and 64.3% for returns. Judicial reviews saw 17.6% of detention orders challenged, with 44% of objections approved. At the end of June, 2,303 people were detained in pre-removal centers, primarily from Egypt (816) and Pakistan (607), while 422 were held in police stations.

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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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