ECtHR – M.A. and Others v. Bulgaria, Application no. 5115/18, 20 February 2020
| Country of applicant: | China |
| Court name: | European Court of Human Rights (Fifth section) |
| Date of decision: | 20-02-2020 |
| Citation: | European Court of Human rights, M.A. and Others v Bulgaria, Application no 5115/18, 20 February 2020. |
| Additional citation: | ECLI:CE:ECHR:2020:0220JUD000511518 |
Keywords:
| Keywords |
|
Assessment of facts and circumstances
Description
The duty of the state to carry out an individual assessment of all relevant elements of the asylum application according to the provisions of Article 4 of the Qualification Directive, including considering past persecution and credibility; and the duty of the applicant to submit as soon as possible all statements and documentation necessary to substantiate the application. |
|
Indirect refoulement
Description
The duty of a State of non-refoulement under Article 33 of the 1951 Convention can include “indirect” or “chain-refoulement” via an alleged “safe third county”. According to the UNHCR,“indirect removal of a refugee from one county to a third country which subsequently will send the refugee onward to the place of feared persecution constitutes refoulement, for which both countries would bear joint responsibility.” |
|
Individual assessment
Description
The carrying out of an assessment on an individual and personal basis. In relation to applications for international protection, per Article 4(3) of the Qualification Directive, this includes taking into account: (a) all relevant facts as they relate to the country of origin at the time of taking a decision; (b) the relevant statements and documentation presented by the applicant; “(c) the individual position and personal circumstances of the applicant, including factors such as background, gender and age, so as to assess whether, on the basis of the applicant's personal circumstances, the acts to which the applicant has been or could be exposed would amount to persecution or serious harm; (d) whether the applicant's activities since leaving the country of origin were engaged in for the sole or main purpose of creating the necessary conditions for applying for international protection, so as to assess whether these activities will expose the applicant to persecution or serious harm if returned to that country; (e) whether the applicant could reasonably be expected to avail himself of the protection of another country where he could assert citizenship.” |
|
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. |
|
Terrorism
Description
Any act intended to cause death or serious bodily injury to a civilian, or to any other person not taking an active part in the hostilities in a situation of armed conflict, when the purpose of such act, by its nature and context, is to intimidate a population, or to compel a government or an international organization to do or abstain from doing an act. |
|
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:
The fact that many Uighurs who have returned to China have been detained in “re-education camps”, or have otherwise faced the risk of imprisonment and ill-treatment, combined with the applicants’ individual circumstances, establishes substantial grounds to believe that the applicants would be at real risk of arbitrary detention, and inhuman treatment, or even death, if they were removed to their country of origin.
If implemented, the applicants’ removal to China would be in breach of Articles 2 and 3 of the ECHR.
Facts:
The applicants are Uighur Muslims from the Xinjiang Uighur Autonomous Region (XUAR). All of them arrived to Turkey at different dates and through different routes. In 2017, Turkish authorities undertook to deport Uighurs residing in the country back to China. The applicants therefore decided to leave Turkey and crossed the Turkish-Bulgarian border on 26 July 2017 where they were apprehended by the Bulgarian border police. One day later, the authorities issued decisions ordering the applicants’ repatriation to the country of origin, the transit country or a third country under section 41(1) of the Aliens Act. Those decisions were notified to the applicants through an interpreter in Turkish.
In December 2017 the applicants applied for asylum but their application was rejected. They applied for judicial review but the competent court rejected their actions stating that the applicants failed to substantiate their claim of fear of persecution.
In parallel proceedings, in five decisions dated 24 January 2018 the head of the State Agency for National Security ordered the applicants’ expulsion on national security grounds; they appealed against the decisions. The Supreme Administrative Court dismissed the appeals of the second, third and fourth applicant considering in three identical judgments that their previous stay in Syria raised terrorist concerns. The Court noted that the facts presented by the Government were sufficient for its own assessment and that it had been convincingly shown that the applicants posed a threat to national security. It noted that the factual information was confidential and that this was a permissible restriction in national security cases.
The applicants complained before the ECtHR that, if returned to China, they would face persecution, ill-treatment, arbitrary detention and could even be executed in violation of their rights under Article 2 and 3 ECHR.
Decision & reasoning:
Article 3
First, the Court reiterated the difficulties that states are facing in their efforts to protect their citizens against terrorism but observed that the prohibitions under Article 3 are absolute and states need to examine the possibility of such risk in expulsion cases. In the present case, the Court considered that the Supreme Administrative Court failed to examine the applicants’ allegations that they faced a risk of ill-treatment in case of expulsion as the authorities had only stated that the applicants did not leave China due to persecution based on their ethnicity or religion. However, information on the current situation in the XUAR shows that the Chinese authorities have detained “hundreds of thousands or even millions of Uighurs in “re-education” camps”, where ill-treatment and torture has been reported.[68-73]
Second, the Court stated that the governmental repression against Uighurs in China is based on terrorism-related justifications ,so that it is therefore significant that the applicants have undergone training for the East Turkistan Islamic Movement. Many Uighurs who have returned to China have been detained in “re-education camps”, or otherwise faced the risk of imprisonment and mistreatment. In the light of this general information combined with the applicants’ individual circumstances (terrorism charges and flight from China), the Court stated that these are substantial grounds to believe that the applicants would be at real risk of ill-treatment, or even death, upon return. [73-78]
The Court further observed that no countyr of destination was indicated in the decisions for repatriation, nor in the expulsion decisions. By reference to Auad v. Bulgaria, the Court concluded that there were no guarantees of a rigorous examination of the applicants’ risk upon return to China, or the risk of chain refoulement following return to a third country. [78-84]
The Court concludes that, if implemented, the applicants’ removal to China would be in breach of articles 2 and 3 of the ECHR.
Article 13
Regarding the complaint of the applicants under Article 13 ECHR, the Court ruled that given the findings on Articles 2 and 3 ECHR there was no need for separate examination on this part of the complaint too.
Outcome:
Violation of Article 2 and 3 ECHR.
It is not necessary to examine the admissibility and merits of the complaint under Article 13 of the Convention.
Observations/comments:
This summary was written by Marie De Rycke.
Relevant International and European Legislation:
Cited National Legislation:
| Cited National Legislation |
| Section 8 (1) and 9 (1) of the Asylum and Refugees Act |
| Section 41 (1) and 44 (a) of the Aliens Act |
Cited Cases:
| Cited Cases |
| ECtHR - Ismoilov v Russia (2008) (Application no. 2947/06) |
| ECtHR - Ocalan v Turkey (2005) (Application no. 46221/99) |
| ECtHR - Hirsi Jamaa and Others v Italy [GC], Application No. 27765/09 |
| ECtHR - Daoudi v. France, Application No. 19576/08 |
| ECtHR - Lawless v. Ireland (no. 3), Application no 332/57 |
| ECtHR - M.S.S. v Belgium and Greece [GC], Application No. 30696/09 |
| ECtHR - F.G. v. Sweden (no. 43611/11) (Grand Chamber), 23 March 2016 |
| ECtHR - Auad v. Bulgaria, no. 46390/10, 11 October 2011 |
| ECtHR – L.M. and Others v. Russia, Applications Nos. 40081/14, 40088/14 and 40127/14, 15 October 2015 |
| ECtHR - M.M. v. Bulgaria no. 75832/13, 8 June 2017 |
| ECtHR - O.D. v. Bulgaria, no. 34016/18, 10 October 2019 |
| ECtHR - A.M. v. France, no. 12148/18, 29 April 2019 |
Other sources:
Information provided by the Bulgarian Ministry of Foreign Affairs (on XUAR)
The United Kingdom Home Office Country Policy and Information note on “China to the state” of November 2018 (on the situation in the XUAR)
The United States Department of State 2018 Country Report on Human Rights Practices in China of March 2019 (in respect of the XUAR)
The United States Department of State 2017 Country Reports on Terrorism of September 2018 (on the situation in the XUAR)
The United States Department of State 2018 Country Reports on Terrorism of October 2018 (on the situation in the XUAR)
Human Rights Watch, World Report 2018 (on the situation in the XUAR)
Human Rights Watch, World Report 2019 (on the situation in the XUAR)
Human Rights Watch, “Eradicating ideological viruses: China’s campaign of repression against Xinjiang’s Muslims”
Amnesty International’s Annual Report 2017-18
Concluding observations on the combined fourteenth to seventeenth periodic reports of China (including Hong Kong, China and Macao, China), September 2018, CERD/C/CHN/CO14-17