ECtHR - Jabari v. Turkey, Application no. 40035/98, 11 July 2000
| Country of applicant: | Iran |
| Court name: | European Court of Human Rights |
| Date of decision: | 11-07-2000 |
| Citation: | Jabari v. Turkey, Application no. 40035/98 |
Keywords:
| Keywords |
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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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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." |
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Right to remain pending a decision (Suspensive effect)
Description
According to Asylum Procedures Directive, Article 7 "Applicants shall be allowed to remain in the Member State, for the sole purpose of the procedure, until the determining authority has made a decision in accordance with the procedures at first instance set out in Chapter III. This right to remain shall not constitute an entitlement to a residence permit. Member States can make an exception only where, in accordance with Articles 32 and 34, a subsequent application will not be further examined or where they will surrender or extradite, as appropriate, a person either to another Member State pursuant to obligations in accordance with a European arrest warrant or otherwise, or to a third country, or to international criminal courts or tribunals." Art 39 APD requires applicants for asylum to have the right to an effective remedy before a court or tribunal, against a number of listed decisions. Member States must, where appropriate, provide for rules in accordance with their international obligations dealing with the question of whether the remedy shall have the effect of allowing applicants to remain in the Member State concerned pending its outcome. |
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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. |
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Gender Based Persecution
Description
‘Gender-related persecution’ is used to encompass the range of different claims in which gender is a relevant consideration in the determination of refugee status. Gender refers to the relationship between women and men based on socially or culturally constructed and defined identities, status, roles and responsibilities that are assigned to one sex or another. Gender is not static or innate but acquires socially and culturally constructed meaning over time. Gender-related claims may be brought by either women or men, although due to particular types of persecution, they are more commonly brought by women. Gender-related claims have typically encompassed, although are by no means limited to, acts of sexual violence, family/domestic violence, coerced family planning, female genital mutilation, punishment for transgression of social mores, and discrimination against homosexuals." |
Headnote:
The proposed deportation of the applicant to Iran would violate Article 3 ECHR, and as she was prevented from having the merits of her claim examined due to non-compliance with procedural time limits, there was a breach of Article 13 ECHR. This was because she had no chance to challenge the decision on appeal, or access to a remedy with suspensive effect.
Facts:
The applicant is an Iranian national who was arrested in Iran in October 1997 after being caught in public with a married man. She was released from detention with the help of her family, and entered Turkey illegally in November 1997. She used a false Canadian passport in an attempt to reach Canada, but was arrested by the French police while in transit. She was returned to Istanbul, where she was arrested for entering on a forged passport. She claimed asylum but this was rejected on the basis that it had been submitted out of time, and should have been registered within 5 days of her arrival in Turkey in compliance with the Asylum Regulation 1994
On 16 February 1998, UNHCR recognised the applicant as a refugee on the basis of her well-founded fear of persecution on return to Iran as she was at risk of inhuman punishment such as death by stoning, flogging and whipping. She lodged an application at the Ankara Administrative Court against her deportation, which was dismissed.
She claimed that her removal to Iran would put her at risk of Article 3 ill-treatment, and that she had no effective remedy to challenge the decision by which her asylum claim was rejected as being out of time.
Decision & reasoning:
The Court reiterated the need for rigorous scrutiny to be given to any claim that deportation would expose a person to ill-treatment contrary to Article 3. It found that in this case the authorities had not conducted any meaningful assessment of the applicant’s claim including its arguability. It considered that the automatic and mechanical application of the five-day registration requirement was contrary to the protection of the fundamental value enshrined in Article 3 ECHR. The Ankara Administrative Court, hearing her judicial review challenge, only considered the formal legality of her deportation rather than the substance of her asylum claim
It placed weight on the fact that UNHCR had considered the applicant to be a refugee after an interview and evaluation of the risk she faced. With regard to the international reports on the situation in Iran for women found guilty of adultery, it concluded that deporting her to Iran would give rise to a violation of Article 3 ECHR.
In relation to Article 13 ECHR the Court noted that her asylum claim had not been assessed by the domestic authorities due to non-respect of procedural requirements, in a non-appealable decision. Although she could lodge a judicial review application to challenge her deportation, this did not have suspensive effect or give her an opportunity to have the merits of her claim examined. The Court held that Article 13 required independent and rigorous scrutiny of a claim to be at risk of Article 3 ill-treatment, with suspensive effect for the measure challenged. It therefore found that Article 13 ECHR had been violated.
Outcome:
The Court found that there had been a breach of Article 13 ECHR, and the deportation of the applicant to Iran would violate Article 3 ECHR.
Relevant International and European Legislation:
Cited National Legislation:
Cited Cases:
| Cited Cases |
| ECtHR - Cruz Varas & Others v Sweden (Application no. 15576/89) |
| ECtHR- Vilvarajah and Others v. the United Kingdom, Application Nos. 3163/87 13164/87 13165/87 13447/87 13448/87 |
Follower Cases:
Other sources:
Amnesty International Annual Report 1999
US Department of State 1999 Country Reports on Human Rights Practices