ECtHR - K.K. v. France, Application No. 18913/11
| Country of applicant: | Iran |
| Court name: | Fifth Section; European Court of Human Rights |
| Date of decision: | 10-10-2013 |
| Citation: | Application No. 18913/11 |
Keywords:
| Keywords |
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Accelerated procedure
Description
Prioritisation or acceleration of any examination in accordance with the basic principles and guarantees of Chapter II of the Asylum Procedures Directive, including where the application is likely to be well-founded or where the applicant has special needs or for any of the reasons in Article 23(4) of the Asylum Procedures Directive |
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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. |
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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. |
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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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Previous persecution
Description
"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.” “The concept of previous persecution also deals with the special situation where a person may have been subjected to very serious persecution in the past and will not therefore cease to be a refugee, even if fundamental changes have occurred in his country of origin. It is a general humanitarian principle and is frequently recognized that a person who--or whose family--has suffered under atrocious forms of persecution should not be expected to repatriate. Even though there may have been a change of regime in his country, this may not always produce a complete change in the attitude of the population, nor, in view of his past experiences, in the mind of the refugee." |
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Relevant Documentation
Description
“All documentation at the applicants disposal regarding the applicant's age, background, including that of relevant relatives, identity, nationality(ies), country(ies) and place(s) of previous residence, previous asylum applications, travel routes, identity and travel documents and the reasons for applying for international protection.” |
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Membership of a particular social group
Description
One of the grounds of persecution specified in the refugee definition per Article 1A ofthe1951 Refugee Convention. According to the Qualification Directive, membership of a particular social group means members who share an innate characteristic, or a common background that cannot be changed, or share a characteristic or belief that is so fundamental to identity or conscience that a person should not be forced to renounce it, and that group has a distinct identity in the relevant country, because it is perceived as being different by the surrounding society. Depending on the circumstances in the country of origin, a particular social group might include a group based on a common characteristic of sexual orientation. Sexual orientation cannot be understood to include acts considered to be criminal in accordance with national law of the Member States: Gender related aspects might be considered, without by themselves alone creating a presumption for the applicability of this concept. |
Headnote:
The Applicant’s alleged risk of persecution due to his former employment with the Iranian Intelligence Services was found by the Court to be sufficiently credible to give rise to a violation of Article 3 if the Applicant were forcibly returned to Iran. The French authorities’ use of the priority procedure did not however violate Article 13 in the Applicant’s case.
Facts:
The Applicant is an Iranian national and former member of the Iranian intelligence services (IRS). His retirement from the IRS in 2006 resulted in the authorities allegedly abducting and imprisoning him, hanging him upside down and beating him, and ordering him to re-join the IRS. This caused him to flee to France, where his application for asylum was dismissed and he was detained pending removal.
The Applicant alleged to the ECtHR that his removal to Iran would expose him to treatment contrary to Article 3 (degrading or inhuman treatment), and a Rule 39 Interim Measure requesting temporary suspension of his removal was granted.
The Applicant also alleged that the placing of his asylum application under the priority procedure was a violation of Article 13 (right to effective remedy) in conjunction with Article 3.
Decision & reasoning:
The Court ruled the situation in Iran as insufficiently serious to prevent all returns.
However, the Court was persuaded by the Applicant's detailed story and documentary evidence of his stance against the IRS and their prosecution of him due to his resignation. The Court found no reasoning in the decisions of the French authorities to justify their doubts about the Applicant's authenticity. The Court also noted the specific risk of detention and questioning faced by returning Iranians, including the Applicant, who previously left Iran unlawfully. The Court therefore found that his removal would violate Article 3.
The Court however did not find a violation of Article 13, due to the Applicant's delay in France before making his application for asylum (2 years) and due to his failure to inform the French authorities that he had already applied for asylum in Greece and the UK. These failures on the Applicant's part warranted his placement under the priority procedure and the consequent reduced time to prepare his application and supporting documents.
Outcome:
The Applicant’s removal to Iran would constitute a violation of Article 3, but no Article 13 violation was found.
Relevant International and European Legislation:
Cited National Legislation:
| Cited National Legislation |
| France - Ceseda (Code of the Entry and Stay of Foreigners and Asylum Law) - Art L.513-3 |
Cited Cases:
| Cited Cases |
| ECtHR - Collins and Akaziebe v Sweden (Application no. 23944/05) |
| ECtHR - Conka v Belgium (Application no. 51564/99) |
| ECtHR - Shamayev v Georgia (April 2005) (Application no. 36378/02) |
| ECtHR - Jabari v Turkey, 11 July 2000, (Application no. 40035/98) |
| ECtHR - Sultani v France (Application no. 45223/05) - (UP) |
| ECtHR - NA v UK, Application No. 25904/07 |
| ECtHR - Bati and Others v Turkey, Application No. 33097/96 and 57834/00 |
| ECtHR - Hirsi Jamaa and Others v Italy [GC], Application No. 27765/09 |
| ECtHR - Kudla v Poland [GC], Application No. 30210/96 |
| ECtHR - N. v Sweden, 20 July 2010, no. 23505/09 |
| ECtHR - Klaas v Germany, Application No. 15473/89 |
| ECtHR - S.F. and Others v. Sweden, Application No. 52077/10 |
| ECtHR - H.R. v France, Application No. 64780/09 |
| ECtHR - I.M. v France, Application No. 9152/09 |
| ECtHR - M.E. v. France, Application No. 50094/10 |
| ECtHR - Mo P. v. France, Application No. 55787/09 |
| ECtHR - P.I. v. France, Application No. 37180/10 |
Follower Cases:
Other sources:
- US State Department Human Rights reports dated 8 April 2011 and 24 May 2012;
- Operational Guidance Note on Iran in October 2012, UK Home Office;
- Resolution of 17 February 2012, the UN General Assembly (A/RES/66/175);
- Report of Secretary General of the Organization (A/66/361); Report of Special Rapporteur on the situation of human rights in the Islamic Republic of Iran (A/66/374);
- World Report published January 22, 2012, Human Rights Watch;
- Country of Origin Information report of 16 January 2013, UK Home Office;
- Danish Immigration Service report, published on 26 February 2013, entitled "Iran, is conversion to Christianity, from Regarding Kurds and post-2009 election protestors as well as legal issues and exit procedures”