ECtHR – Dbouba v. Turkey, Application No. 15916/09, 13 October 2010
| Country of applicant: | Tunisia |
| Court name: | European Court of Human Rights (Second section) |
| Date of decision: | 13-10-2010 |
| Citation: | Dbouba v Turkey, Application No. 15916/09 [2010] ECtHR |
Keywords:
| Keywords |
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Effective access to procedures
Description
Effective access to legal and administrative procedures undertaken by UNHCR and/or States in accordance with the Asylum Procedures Directive to determine whether an individual should be recognized as a refugee in accordance with national and international law. |
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Detention
Description
"Restriction on freedom of movement through confinement that is ordered by an administrative or judicial authority(ies) in order that another procedure may be implemented. In an EU asylum context, this means confinement of an asylum seeker by a Member State within a particular place, where the applicant is deprived of his or her freedom of movement. This may occur during any stage of or throughout the asylum process, from the time an initial application is made up to the point of removal of an unsuccessful asylum seeker. In an EU Return context, Member States may only detain or keep in a detention facility a third-country national who is the subject of return procedures in order to prepare the return and/or carry out the removal process, in particular when: (a) there is a risk of absconding; or (b) the third-country national concerned avoids or hampers the preparation of return or the removal process. Any detention shall be for as short a period as possible and only maintained as long as removal arrangements are in progress and executed with due diligence." |
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Effective remedy (right to)
Description
A general principle of EU law now set out in Article 47 of the Charter of Fundamental Rights: "Everyone whose rights and freedoms guaranteed by the law of the Union are violated has the right to an effective remedy before a tribunal in compliance with the conditions laid down in this Article.” “[It] is based on Article 13 of the ECHR: ‘Everyone whose rights and freedoms as set forth in this Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.’ However, in Community law the protection is more extensive since it guarantees the right to an effective remedy before a court. The Court of Justice enshrined the principle in its judgment of 15 May 1986 (Case 222/84 Johnston [1986] ECR 1651; see also judgment of 15 October 1987, Case 222/86 Heylens [1987] ECR 4097 and judgment of 3 December 1992, Case C-97/91 Borelli [1992] ECR I-6313. According to the Court, this principle also applies to the Member States when they are implementing Community law. The inclusion of this precedent in the Charter is not intended to change the appeal system laid down by the Treaties, and particularly the rules relating to admissibility. This principle is therefore to be implemented according to the procedures laid down in the Treaties. It applies to the institutions of the Union and of Member States when they are implementing Union law and does so for all rights guaranteed by Union law.” |
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Legal assistance / Legal representation / Legal aid
Description
Legal assistance: "practical help in bringing about desired outcomes within a legal framework. Assistance can take many forms, ranging from the preparation of paperwork, through to the conduct of negotiation and representation in courts and tribunals.” Legal aid: state funded assistance, for those on low incomes, to cover legal fees." |
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Non-refoulement
Description
A core principle of international Refugee Law that prohibits States from returning refugees in any manner whatsoever to countries or territories in which their lives or freedom may be threatened. Note: The principle of non-refoulement is a part of customary international law and is therefore binding on all States, whether or not they are parties to the Geneva Convention. |
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Procedural guarantees
Description
“In the interests of a correct recognition of those persons in need of protection … every applicant should, subject to certain exceptions, have an effective access to procedures, the opportunity to cooperate and properly communicate with the competent authorities so as to present the relevant facts of his/her case and sufficient procedural guarantees to pursue his/her case throughout all stages of the procedure.” Procedures should satisfy certain basic requirements, which reflect the special situation of the applicant for refugee status, and which would ensure that the applicant is provided with certain essential guarantees. Some of these basic requirements are set out in on p.31 of the UNHCR Handbook as well as the APD Arts. 10, 17 and 34 and include: a personal interview, the right to legal assistance and representation, specific guarantees for vulnerable persons and regarding the examination procedure, and those guarantees set out in the Asylum Procedures Directive. |
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Well-founded fear
Description
One of the central elements of the refugee definition under Article 1A ofthe1951 Refugee Convention is a “well-founded fear of persecution”: "Since fear is subjective, the definition involves a subjective element in the person applying for recognition as a refugee. Determination of refugee status will therefore primarily require an evaluation of the applicant's statements rather than a judgement on the situation prevailing in his country of origin. To the element of fear--a state of mind and a subjective condition--is added the qualification ‘well-founded’. This implies that it is not only the frame of mind of the person concerned that determines his refugee status, but that this frame of mind must be supported by an objective situation. The term ‘well-founded fear’ therefore contains a subjective and an objective element, and in determining whether well-founded fear exists, both elements must be taken into consideration." |
Headnote:
Facts:
Decision & reasoning:
The Court rejected the Government’s submission under Article 35(1) ECHR that the applicant had failed to exhaust the domestic remedies avalailable to him, as it had already examined and dismissed an identical objection by the Government in the case of Abdolkhani and Karimnia.
Article 3 ECHR
The Court found that the Turkish authorities had given no consideration to the applicant’s claim regarding the risks of persecution he faced in Tunisia, contrary to the absolute nature of Article 3 ECHR. On the basis of its findings in the case of Saadi v. Italy, themselves based on the reports of Amnesty International and Human Rights Watch on Tunisia, and of the UNHCR’s assessment and conclusion on the applicant’s situation that he risked persecution in Tunisia which must be given due weight by the Court, the Court held that there would be a violation of Article 3 ECHR, should the applicant be deported to Tunisia.
Article 13 ECHR
The Court accepted the applicant’s submission under Article 13 ECHR and concluded that the applicant was not afforded an effective and accessible remedy, and so that there had been a violation of article 13, on the basis that:
- it found that the national authorities had not given meaningful examination to the applicant’s allegations of the risks of ill-treatment and death penalty he faced in Tunisia
- it rejected the Government’s submission that the applicant had been informed on 25 January 2005 of its decision to reject his application for temporary asylum and of the deportation procedure, since the Government failed to show that it had served the applicant a written decision
- the Government failed to inform the applicant of the re-initiation of the procedure of deportation against him on 22 January 2009.
Article 5(1) ECHR
The Court concluded that there had been a violation of Article 5(1) ECHR, on the basis of its conclusion in the case of Abdolkhani and Karimnia where the same grievance was examined: the Court had found that the placement of the applicants in the Foreigners’ Admission and Accommodation Centre constituted an unlawful deprivation of liberty in the absence of clear legal provisions establishing the procedure for ordering and extending detention with a view to deportation. As such, in this case the detention of the applicant in the Foreigners’ Admission and Accommodation Centre was found to be unlawful by the Court and to constitute a violation of Article 5(1).
Article 5(2) ECHR
The Court concluded that there had been a violation of Article 5(2), as it found that the reasons for the applicant’s detention from 25 January 2008 onwards were never communicated to him, on the basis of the absence of any documents in the case file to show that the applicant was formally notified of the grounds for his detention.
Article 5(4) and 5(5) ECHR
The Court concluded that there had been a violation of Article 5(4), as it found that the applicant had not been able to challenge the lawfulness of his detention from 25 January 2008 onwards, on the basis that the Government did not make any submission demonstrating that the applicant had had at his disposal any procedure by which the lawfulness of his detention could have been examined by a court and which allowed him to claim compensation for the violation of his rights under Article 5(1), nor provided any example where administrative courts speedily examined and ordered the release of an asylum seeker on grounds of unlawfulness and granted compensation for his or her unlawful detention. The applicant’s right of appeal was, therefore, deprived of all effective substance.
Article 3 ECHR – with regards to the applicant’s detention
The Court rejected the applicant’s complaint that the conditions of his detention in the Kocaeli Police headquarters were poor, in accordance with Article 35 (1) and 35(4) ECHR, as this part of the application was submitted too long after the detention.
The Court further rejected the applicant’s complaint that the conditions of his detention in the Foreigners’ Admission and Accommodation Centre were poor, on the basis that it has already examined almost identical allegations – for example in Z.N.S. v. Turkey – and found that the material conditions in that centre were not so severe as to bring them within the scope of Article 3 ECHR.
Outcome:
Application partly successful.
The Court unanimously found that there had been a violation of Article 3 ECHR in conjunction with Article 13, as well as a violation of Articles 5(1), 5(2), 5(4) and 5(5) ECHR. However there had not been a violation of article 3 ECHR within the context of the applicant’s detention.
The Court awarded the applicant damages of EUR 11,000 for non-pecuniary amage and EUR 4,000 for costs and expenses, and further held that Turkey must release the applicant at the earliest date possible.
Observations/comments:
This case summary was written by Emily Claire Procter, GDL student at BPP University.
Relevant International and European Legislation:
Cited National Legislation:
Cited Cases:
| Cited Cases |
| ECtHR - Shamayev v Georgia (April 2005) (Application no. 36378/02) |
| ECtHR - NA v UK, Application No. 25904/07 |
| ECtHR - Saadi v. United Kingdom, no. 13229/03, 29 January 2008 |
| ECtHR - Z.N.S. v Turkey, Application No. 21896/08 |
| ECtHR- Assanidze v. Georgia [GC], Application no. 71503/01 |
| ECtHR- S.D. v. Greece, Application no. 53541/07, 11 September 2009 |
| ECtHR - Abdolkhani and Karimnia v. Turkey, (no. 30471/08), 22 September 2009 |
| ECtHR - Jabari v. Turkey, Application no. 40035/98, 11 July 2000 |
| ECtHR - Chahal v. The United Kingdom, Application No. 22414/93, 15 November 1996 |