ECtHR- Labsi v. Slovakia, Application no. 33809/08, 24 September 2012
| Country of applicant: | Algeria |
| Court name: | European Court of Human Rights Third Chamber |
| Date of decision: | 24-09-2012 |
| Citation: | ECtHR- Labsi v. Slovakia, Application no. 33809/08, 24 September 2012 |
Keywords:
| Keywords |
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Detention
Description
"Restriction on freedom of movement through confinement that is ordered by an administrative or judicial authority(ies) in order that another procedure may be implemented. In an EU asylum context, this means confinement of an asylum seeker by a Member State within a particular place, where the applicant is deprived of his or her freedom of movement. This may occur during any stage of or throughout the asylum process, from the time an initial application is made up to the point of removal of an unsuccessful asylum seeker. In an EU Return context, Member States may only detain or keep in a detention facility a third-country national who is the subject of return procedures in order to prepare the return and/or carry out the removal process, in particular when: (a) there is a risk of absconding; or (b) the third-country national concerned avoids or hampers the preparation of return or the removal process. Any detention shall be for as short a period as possible and only maintained as long as removal arrangements are in progress and executed with due diligence." |
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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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Persecution (acts of)
Description
"Human rights abuses or other serious harm, often, but not always, with a systematic or repetitive element. Per Article 9 of the Qualification Directive, acts of persecution for the purposes of refugee status must: (a) be acts sufficiently serious by their nature or repetition as to constitute a severe violation of basic human rights, in particular the rights from which derogation cannot be made under Article 15(2) of the ECHR; or (b) be an accumulation of various measures, including violations of human rights which is sufficiently severe as to affect an individual in a similar manner as mentioned in (a). This may, inter alia, take the form of: acts of physical or mental violence, including acts of sexual violence; legal, administrative, police and/or judicial measures which are in themselves discriminatory or which are implemented in a discriminatory manner; prosecution or punishment, which is disproportionate or discriminatory; denial of judicial redress resulting in a disproportionate or discriminatory punishment; prosecution or punishment for refusal to perform military service in a conflict, where performing military service would include crimes or acts falling under the exclusion clauses in Article 12(2). " |
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Safe country of origin
Description
"A country where, on the basis of the legal situation, the application of the law within a democratic system and the general political circumstances, it can be shown that there is generally and consistently no persecution as defined in Article 9 of Directive 2004/83/EC, no torture or inhuman or degrading treatment or punishment and no threat by reason of indiscriminate violence in situations of international or internal armed conflict. In making this assessment, account is taken, inter alia, of the extent to which protection is provided against persecution or mistreatment by: (a) the relevant laws and regulations of the country and the manner in which they are applied; (b) observance of the rights and freedoms laid down in the European Convention on Human Rights (ECHR) and/or the International Covenant for Civil and Political Rights and/or the Convention against Torture, in particular the rights from which derogation cannot be made under Article 15(2) of the said European Convention; (c) respect of the non-refoulement principle according to the Geneva Convention; (d) provision for a system of effective remedies against violations of these rights and freedoms.” |
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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. |
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Well-founded fear
Description
One of the central elements of the refugee definition under Article 1A ofthe1951 Refugee Convention is a “well-founded fear of persecution”: "Since fear is subjective, the definition involves a subjective element in the person applying for recognition as a refugee. Determination of refugee status will therefore primarily require an evaluation of the applicant's statements rather than a judgement on the situation prevailing in his country of origin. To the element of fear--a state of mind and a subjective condition--is added the qualification ‘well-founded’. This implies that it is not only the frame of mind of the person concerned that determines his refugee status, but that this frame of mind must be supported by an objective situation. The term ‘well-founded fear’ therefore contains a subjective and an objective element, and in determining whether well-founded fear exists, both elements must be taken into consideration." |
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Refugee Status
Description
The recognition by a Member State of a third-country national or stateless person as a refugee. |
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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 European Court of Human Rights held that the expulsion of an Algerian national from Slovakia to Algeria, in contempt of an interim measure issued by the Court, was in violation of Articles 3, 13 and 34 of the Convention.
Facts:
The applicant, an Algerian national, was found guilty of involvement in terrorist acts in France, received a five-year sentence and was excluded from the territory of France. Following his release, he travelled to Slovakia where he applied three times for asylum, without succeeding. His appeals arguing the risk of ill-treatment or of a death sentence upon return as well his family ties in Slovakia were rejected. The Supreme Court upheld that decision. In 2006, the Slovakian immigration authorities ordered his expulsion and banned him from re-entering the country for ten years. Following this decision, the Algerian authorities requested his extradition to Algeria where in 2005 he had been sentenced in his absence to life imprisonment for membership of a terrorist organisation and forgery. The Bratislava Regional Court gave its consent to the applicant’s extradition to Algeria, decision that was later approved by the Supreme Court. In 2008 the Slovak Supreme Court ruled that the applicant could not be extradited to Algeria owing to the risk that he would be subjected to torture and the European Court issued an interim measure under Rule 39 of its Rules requiring the Slovak authorities not to extradite him. In March 2010 the Supreme Court upheld the immigration authorities’ original decision in 2006 to expel the applicant after finding that he represented a safety risk in Slovakia on account of his involvement in terrorism. The European Court specifically informed the Slovak Government that the Rule 39 interim measure remained in force pending a possible constitutional complaint by the applicant. The applicant was nevertheless expelled to Algeria three days later.
Decision & reasoning:
Taking cue from its jurisprudence and international reports on Algeria, the Court highlighted the real risk of ill-treatment to which individuals suspected of terrorist activities were exposed while in the hands of the Department of Intelligence and Security (DRS) [125]. Citing H.R. v. France (no. 64780/09), the Court specified that the risk of treatment contrary to Article 3 resulted from the continued practice of the DRS of gathering information from people suspected or convicted of terrorist activities using methods which had been denounced by a number of international reports, practice that was still used in this country [127]. Accordingly, at the time of his expulsion, there were substantial reasons for believing that the applicant faced a risk of being subjected to treatment contrary to Article 3 of the Convention in his country of origin [128]. Further, the applicant had reportedly been detained by the Algerian Intelligence for twelve days following his return to Algeria and there had been no follow-up to the request for a visit by a Slovak official to check compliance with the Algerian authorities’ assurances as regards his treatment [130]. Therefore, it found a violation of Article 3 of the Convention [132].
With regards to the applicant’s complaint under Article 13 of the Convention, the Court noted that his expulsion to Algeria just one working day after the Supreme Court’s judgement of March 2010 had deprived him of an effective remedy against this decision, preventing him from attempting to obtain redress by means of a constitutional complaint following the final decision given in the asylum proceedings [138]. It therefore found a violation of Article 13 of the Convention [140].
Turning to the applicant’s complaint under Article 34, the Court noted that his expulsion prevented it from examining his complaints and protecting him under Article 3, despite the fact that it issued an interim measure [150]. Accordingly, it found a violation of Article 34 [151].
Outcome:
Violation of Article 3
Violation of Article 13
Violation of Article 34
Subsequent proceedings:
The CoE Committee of Ministers adopted two decisions wherein it considered no further individual execution measures to be necessary since the applicant had been released from Algerian prison in May 2012, and assurances had been given that he is free and enjoying all his constitutional rights. With regard to general measures, on the one hand the CM accepted the position of the Slovakian Government that violations of Arts. 3 and 34 found by the Court had been exceptional; On the other hand, the CM urged the Government to put in a place a remedy with automatic suspensive effect as required by Art. 13.
Relevant International and European Legislation:
Cited National Legislation:
| Cited National Legislation |
| Slovakia- The Asylum Act 2002 |
| Slovakia- The Bar Act 2003 |
| Slovakia- The Constitutional Court Act 1993 |
Cited Cases:
| Cited Cases |
| ECtHR - Ismoilov v Russia (2008) (Application no. 2947/06) |
| ECtHR - Shamayev v Georgia (April 2005) (Application no. 36378/02) |
| ECtHR - Mamatkulov Askarov v Turkey, Applications nos. 46827/99 and 46951/99 |
| ECtHR - Hirsi Jamaa and Others v Italy [GC], Application No. 27765/09 |
| ECtHR - Ben Khemais v. Italy, Application No. 246/07 |
| ECtHR - Boutagni v. France, Application No. 42360/08 |
| ECtHR - Daoudi v. France, Application No. 19576/08 |
| ECtHR - Garayev v. Azerbaijan, Application No. 53688/08 |
| ECtHR - Khaydarov v. Russia, Application No. 21055/09 |
| ECtHR - Koktysh v. Ukraine, Application No. 43707/07 |
| ECtHR - Paladi v. Moldova [GC], Application No. 39806/05 |
| ECtHR - H.R. v France, Application No. 64780/09 |
| ECtHR - Olaechea Cahuas v. Spain, (no. 24668/03) |
| ECtHR - Toumi v. Italy, (no. 25716/09) |
| ECtHR- Post v. the Netherlands (dec.), Application No. 21727/08 |
| ECtHR- Aoulmi v. France, Application No. 50278/99 |
| ECtHR- Mostafa and Others v. Turkey, Application No. 16348/05 |
Follower Cases:
| Follower Cases |
| ECtHR – L.M. and Others v. Russia, Applications Nos. 40081/14, 40088/14 and 40127/14, 15 October 2015 |
Other sources:
United Nations, Third periodic report of Algeria submitted under Article 40 of the International Covenant on Civil and Political Rights, 2008
UN Committee against Torture , Concluding observations in respect of the third periodic report submitted by Algeria under Article 19 of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment
Amnesty International Report 2011: The State of World’s Human Rights, 2011
International Covenant on Civil and Political Rights(ICCPR)- Article 40