ECtHR – E.S. v. Spain, Application no. 13273/16, 26 September 2017

Facts:

The applicant is a Senegalese national who arrived at the airport in Madrid in February 2016 where he was arrested by the border authorities. Five days later he lodged an asylum application on the grounds that he had left Senegal due to the threats he received on account of his sexual orientation. His application was rejected due to a lack of credibility of his account. The applicant requested his application to be re-examined. At that occasion, UNHCR Spain has also indicated that the information provided by the applicant was coherent and enough to justify the admissibility of his application for asylum, in the light of the general situation faced by LGBT people in Senegal. His appeal was rejected.

In March 2016, the applicant lodged an appeal before the Audiencia Nacional and requested the suspension of his order of expulsion, which was rejected. Therefore, as his expulsion was schedule for the next second day, the applicant seized the ECtHR with a request for interim measures under Article 39 of the Rules of the Court, which was granted. The Spanish government complied with the interim measure.

On 21 April 2017, the Audiencia Nacional ruled in favour of the applicant in his appeal against the inadmissibility decision taken with regard to his asylum application. It ordered the national authorities to examine the merits of the applicant’s asylum application. 

Decision & reasoning:

Firstly, with regard to the applicant’s complaint under Article 13 ECHR read in conjunction with Articles 2 and 3 ECHR, the ECtHR concurred with the Spanish government that, since the Audiencia Nacional had reopened the examination of his asylum application, thus automatically suspending the order of removal until a new decision on the merits is adopted, the application had to be struck off the ECtHR’s list as the matter could be considered as “resolved” under Article 37(1)(b) ECHR. The Court recalled that should the applicant’s situation change he can once again seize the ECtHR to raise this complaint.

Secondly, since the examination on the merits of the applicant’s asylum application was still pending at the time of the ECtHR’s decision, the Court found that his applications under Articles 2 and 3 ECHR were premature and had to be declared inadmissible. 

Outcome:

The ECtHR decided to strike off from its list the applicant’s complaint under Article 13 ECHR read in conjunction with Articles 2 and 3 ECHR and ruled inadmissible as premature the complaints under Articles 2 and 3 ECHR.

Observations/comments:

National case-law regarding the applicant

The decision of the Audiencia Nacional granting the applicant’s appeal against the decision to reject his asylum application as manifestly unfounded can be found here. In that occasion, the Audiencia Nacional ruled that, taking into account country of origin information and the necessary procedural safeguards that need to be taken into account in relation to asylum claims based on persecution on the grounds of sexual orientation, the asylum application had to be examined on the merits for an in-depth, individualised analysis of his claims.

Third-party intervention

ECRE, the AIRE CENTRE, the International Commission of Jurists (ICJ), the Human Dignity Trust (HDT), and ILGA-EUROPE have submitted a joint third-party intervention in this case.