ECtHR – L. O. v France, Application No. 4455/14, 26 May 2015
| Country of applicant: | Nigeria |
| Court name: | European Court of Human Rights |
| Date of decision: | 26-05-2015 |
| Citation: | Application No. 4455/14 |
Keywords:
| Keywords |
|
Benefit of doubt
Description
The advantage derived from doubt about guilt, a possible error, or the weight of evidence. “When statements are not susceptible of proof, even with independent research, if the applicant's account appears credible, he should, unless there are good reasons to the contrary, be given the benefit of the doubt. The requirement of evidence should thus not be too strictly applied in view of the difficulty of proof inherent in the special situation in which an applicant for refugee status finds himself. Allowance for such possible lack of evidence does not, however, mean that unsupported statements must necessarily be accepted as true if they are inconsistent with the general account put forward by the applicant." |
|
Burden of proof
Description
"In the migration context, a non-national seeking entry into a foreign State must prove that he or she is entitled to enter and is not inadmissible under the laws of that State. In refugee status procedures, where an applicant must establish his or her case, i.e. show on the evidence that he or she has well-founded fear of persecution. Note: A broader definition may be found in the Oxford Dictionary of Law." |
|
Country of origin information
Description
"Information used by the Member States authorities to analyse the socio-political situation in countries of origin of applicants for international protection (and, where necessary, in countries through which they have transited) in the assessment, carried out on an individual basis, of an application for international protection.” It includes all relevant facts as they relate to the country of origin at the time of taking a decision on the application, obtained from various sources, including the laws and regulations of the country of origin and the manner in which they are applied, regulations of the country of origin, plus general public sources, such as reports from (inter)national organisations, governmental and non-governmental organisations, media, bi-lateral contacts in countries of origin, embassy reports, etc. This information is also used inter alia for taking decisions on other migration issues, e.g. on return, as well as by researchers. One of the stated aims of the European Asylum Support Office (EASO) is to progressively bring all activities related to practical cooperation on asylum under its roof, to include the collection of Country of Origin Information and a common approach to its use. |
|
Credibility assessment
Description
Assessment made in adjudicating an application for a visa, or other immigration status, in order to determine whether the information presented by the applicant is consistent and credible. |
|
Inhuman or degrading treatment or punishment
Description
A form of serious harm for the purposes of the granting of subsidiary protection. The Trial Chamber of the International Criminal Tribunal for the Former Yugoslavia in Celibici defined cruel or inhuman treatment as ‘an intentional act or omission, that is an act which, judged objectively, is deliberate and not accidental, that causes serious mental or physical suffering or injury or constitutes a serious attack on human dignity.’ “Ill-treatment means all forms of cruel, inhuman or degrading treatment or punishment, including corporal punishment, which deprives the individual of its physical and mental integrity." |
|
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. |
|
Non-state actors/agents of persecution
Description
People or entities responsible for acts or threats of persecution, which are not under the control of the government, and which may give rise to refugee status if they are facilitated, encouraged, or tolerated by the government, or if the government is unable or unwilling to provide effective protection against them. |
|
Subsequent application
Description
Where a person who has applied for refugee status in a Member State makes further representations or a subsequent application in the same Member State. Member States may apply a specific procedure involving a preliminary examination where a decision has been taken on the previous application or where a previous application has been withdrawn or abandoned. As with all aspects of the procedures directive, the same provisions will apply to applicants for subsidiary protection where a single procedure applies to both applications for asylum and subsidiary protection. |
|
Trafficking in human beings
Description
"The recruitment, transportation, transfer, harbouring or reception of persons, including the exchange or transfer of control over those persons, by means of the threat or use of force or other forms of coercion, of abduction, of fraud, of deception, of the abuse of power or of a position of vulnerability or of the giving or receiving of payments or benefits to achieve the consent of a person having control over another person, for the purpose of exploitation. A position of vulnerability means a situation in which the person concerned has no real or acceptable alternative but to submit to the abuse involved. Exploitation includes, as a minimum, the exploitation of the prostitution of others or other forms of sexual exploitation, forced labour or services, including begging, slavery or practices similar to slavery, servitude, or the exploitation of criminal activities, or the removal of organs." |
|
Real risk
Description
In order to be eligible for subsidiary protection, a third country national or stateless person must demonstrate that if returned to his or her country of origin, or in the case of a stateless person, to his or her country of former habitual residence, s/he would face a real risk of serious harm as defined in QD Art. 15 and that s/he is unable, or owing to such risk, unwilling to avail her/himself of the protection of that country. The fact that an applicant has already been subject to persecution or serious harm or to direct threats of such persecution or such harm, is a serious indication of the applicant's well-founded fear of persecution or real risk of suffering serious harm, unless there are good reasons to consider that such persecution or serious harm will not be repeated. |
Headnote:
Considering the general situation in the country and the circumstances specific to the Applicant, the ECtHR held that there were no serious and current grounds to believe that she would be at real risk of treatment contrary to Article 3 upon her return to Nigeria.
Facts:
The Applicant, a Nigerian national, had been working in a restaurant in Benin City. One of the regulars, a certain A., offered her work as a babysitter for his family in France. She accepted and A. made all of the administrative arrangements for her departure, including obtaining a passport for her, which he kept in his possession. The Applicant arrived in France on 16 December 2010. She was locked up in A.’s apartment for the first week and raped by him repeatedly. He then forced her into prostitution, telling her that she owed him €50,000 for her travel and accommodation costs, and that she would have to pay this back in weekly payments of €1,000. She therefore began prostituting herself in Paris. Whenever she was unable to pay the weekly sum, she was beaten and raped by A. He also personally threatened her family on one of his visits back to Nigeria.
In 2011, under A.’s instructions, the Applicant claimed asylum on the basis of a risk of FGM and arranged marriage. Her application was rejected by the French Office for the Protection of Refugees and Stateless People (‘OFPRA’) in its decision of 23 September 2011, confirmed on appeal on 16 April 2012. On 30 December 2013, she was arrested, detained and ordered to leave the French territory. While in detention, she filed a subsequent application, explaining that she had been a victim of a human trafficking network and that she had been unable to disclose this in her original application due to pressure from her trafficker. Her application was rejected on 14 January 2014 on the grounds that she had not provided sufficient evidence for the credibility of her application to be assessed.
On 15 January 2014, she applied to the European Court of Human Rights (‘ECtHR’) on the grounds that her rights under Article 3 of its Convention would be violated if she were forced to return to Nigeria. She also sought interim measures under Article 39 of the European Convention on Human Rights (‘ECHR’). The following day, the ECtHR advised the French Government not to return the Applicant to Nigeria pending the outcome of proceedings. She was subsequently placed in administrative detention in Lille. Her appeal was still pending at the time of the present ECtHR decision.
Decision & reasoning:
The Court noted that an applicant has the burden of providing evidence that he or she would be at real risk of treatment contrary to Article 3 upon return to the country of origin (Saadi v Italy; NA v U.K.). The evidence should then be considered by the relevant state authorities. Where there are issues concerning the credibility of the evidence, the applicant should ordinarily be given the benefit of the doubt; however, the applicant should be prepared to explain any inconsistencies in his or her account (N. v Sweden; Collins and Akaziebie v Sweden) as well as to dispel doubts concerning the authenticity of the documents provided (Mo P. v France).
Applying these findings to the facts, the Court acknowledged that the Applicant’s account of how she had been led into prostitution in France was detailed and consistent with numerous reports from reliable sources. Furthermore, it found that the fact that the Applicant had lied to the French authorities in the past did not deprive her later statements of probative value, given that this was common behaviour among victims of prostitution. Notwithstanding, the Court held that there were no serious and current grounds to believe that the Applicant would be at real risk of treatment contrary to Article 3 upon her return to Nigeria. The Court first noted that the risk alleged by the Applicant concerned not the State, but rather the actions of an individual. In light of the evidence provided, it appeared that A. had acted independently and was not part of a trafficking network. Moreover, it was not apparent that the Applicant remained under his influence, as she had stopped making the payments to him. In addition, relying on its previous finding in V. F. v France, as corroborated by more recent country reports from the U.S. Secretary of State and the U.K. Home Office, the Court was not convinced that the Nigerian authorities would not be able to offer the Applicant sufficient protection and assistance, as it was continuing in its efforts to protect the victims of human trafficking. The application was rejected as manifestly unfounded in accordance with Articles 35(3)(a) and 4 of the ECHR. As a result, the Article 39 interim measures were also brought to an end.
Outcome:
Application denied.
Relevant International and European Legislation:
Cited Cases:
| Cited Cases |
| ECtHR - Collins and Akaziebe v Sweden (Application no. 23944/05) |
| ECtHR - NA v UK, Application No. 25904/07 |
| ECtHR - Hirsi Jamaa and Others v Italy [GC], Application No. 27765/09 |
| ECtHR - N. v Sweden, 20 July 2010, no. 23505/09 |
| ECtHR - Klaas v Germany, Application No. 15473/89 |
| ECtHR - Mo P. v. France, Application No. 55787/09 |
| ECtHR - H.L.R. v. France, Application no. 24573/94 |
| ECtHR - Chahal v. The United Kingdom, Application No. 22414/93, 15 November 1996 |
| ECtHR – Saadi v. Italy, Application No. 37201/06, 28 February 2008 |
| ECtHR - V. F. v France – Application No. 7196/10 |
Follower Cases:
| Follower Cases |
| Switzerland – Federal Administrative Court, 18 July 2016, D-6806/2013 |
Other sources:
U.S. Department of State Country Report on Nigeria – June 2014
U.K. Home Office Report on Nigeria – December 2013