ECtHR - R.J. v. France, Application No. 10466/11
| Country of applicant: | Sri Lanka |
| Court name: | Fifth Section; European Court of Human Rights |
| Date of decision: | 19-09-2013 |
| Citation: | Application No. 10466/11 |
Keywords:
| Keywords |
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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." |
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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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Medical Reports/Medico-legal Reports
Description
“Expert medical report used as evidence relevant to the application for international protection. Where psychological elements are relevant, the medical report should provide information on the nature and degree of mental illness and should assess the applicant's ability to fulfil the requirements normally expected of an applicant in presenting his case. The conclusions of the medical report will determine the examiner's further approach.” |
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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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Personal circumstances of applicant
Description
The range of factors such as background, gender, age, and individual position which must to be taken into account in the assessment of an application for international protection per Article 4(3)(c) of the Qualification Directive. |
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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.” |
Headnote:
The French authorities’ failure to conduct an adequate inquiry into the Applicant’s medical evidence resulted their dismissal of the credibility of the Tamil applicant, who, according to the ECtHR, would face a real risk of treatment contrary to Article 3 if returned to Sri Lanka.
Facts:
The Applicant is a Tamil from Sri Lanka who sought asylum in France on 2nd February 2011. He claims that he was persecuted by the Sri Lankan authorities because of his origin and his political activities in support of the Liberation Tigers of Tamil Eelam (LTTE). He also claims that, while acting as treasurer of a trade union, he paid part of its assets to the LTTE. He was arrested by the authorities and, he claims, subjected to physical abuse while in detention. The day after he arrived in France, the Applicant obtained a medical certificate that purported to demonstrate evidence of physical abuse.
On 7 June 2011 the French Agency for the Protection of Refugees and Stateless Persons (OFPRA) rejected his asylum application.
The Applicant alleged before the ECtHR that the enforcement of the order for his removal would place him at risk of treatment contrary to Article 3 (prohibition of torture and inhuman or degrading treatment).
Decision & reasoning:
The Court considered the case to turn on the credibility of the Applicant's evidence, and regarded the relevant principles of law as settled. While the Court shared the French government's doubts as to the applicant's claims concerning detention conditions and financial support for the LTTE, the Court found that the French government had failed to effectively rebut the strong presumption raised by the medical certificate of treatment contrary to Article 3. Despite a Rule 39 Interim Measure by the ECtHR requesting government inquiry into the origin and nature of the Applicant's wounds, no such inquiry was conducted.
The Court accordingly found that the forced return of the applicant to Sri Lanka would constitute a violation of Article 3.
Outcome:
The Court found that a return to Sri Lanka risked a violation of Article 3.
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.712-1 |
Cited Cases:
| Cited Cases |
| ECtHR - Collins and Akaziebe v Sweden (Application no. 23944/05) |
| ECtHR - NA v UK, Application No. 25904/07 |
| ECtHR - N. v Sweden, 20 July 2010, no. 23505/09 |
| ECtHR - Chalal v. the United Kingdom, Application No. 1948/04 |
| ECtHR - Klaas v Germany, Application No. 15473/89 |
| ECtHR - Mo P. v. France, Application No. 55787/09 |
| ECtHR - T.N. v. Denmark, Application No. 20594/08 |
| ECtHR - E.G. v. United Kingdom, Application No. 41178/08 |
| ECtHR - F.N. and Another v. Sweden, Application No. 28774/09 |
Follower Cases:
| Follower Cases |
| ECtHR – J.K. v. and Others v. Sweden, Application No. 59166/12, 23 August 2016 |
| Belgium - Council of State, 27 February 2020, N° 247156 |
Other sources:
- Report on human rights in Sri Lanka of U.S. State Department April 8, 2011;
- Country of Origin Information Report of the UK Home Office 4 July, 2011.