ECtHR - M. D. and M. A. v Belgium, Application No. 58689/12, 19 January 2016
| Country of applicant: | Russia |
| Court name: | European Court of Human Rights (Second section) |
| Date of decision: | 19-01-2016 |
| Citation: | ECtHR – M. D. and M. A. v Belgium – Application No. 58689/12, 19 January 2016 |
Keywords:
| Keywords |
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Effective access to procedures
Description
Effective access to legal and administrative procedures undertaken by UNHCR and/or States in accordance with the Asylum Procedures Directive to determine whether an individual should be recognized as a refugee in accordance with national and international law. |
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Actor of persecution or serious harm
Description
Per Art. 6 QD actors who subject an individual to acts of serious harm (as defined in Art. 15). Actors of persecution or serious harm include: (a) the State; (b) parties or organisations controlling the State or a substantial part of the territory of the State; (c) non-State actors, if it can be demonstrated that the actors mentioned in (a) and (b), including international organisations, are unable or unwilling to provide protection against persecution or serious harm as defined in Article 7. |
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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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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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Duty of applicant
Description
The duty imposed on an applicant for international protection by Article. 4(1) of the Qualification Directive to submit as soon as possible all elements needed to substantiate the application for international protection. |
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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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Non-state actors/agents of persecution
Description
People or entities responsible for acts or threats of persecution, which are not under the control of the government, and which may give rise to refugee status if they are facilitated, encouraged, or tolerated by the government, or if the government is unable or unwilling to provide effective protection against them. |
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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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Relevant Facts
Description
An assessment of an application for international protection must take into account all relevant facts, including those relating to: the country of origin at the time of taking a decision on the application, including laws and regulations of the country of origin and the manner in which they are applied; relevant statements and documentation presented by the applicant; the individual position and personal circumstances of the applicant; and other matters set out in Article 4 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.” |
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Standard of proof
Description
The degree or level of persuasiveness of the evidence required in a specific case. For example, in the refugee context, ‘well-founded’ is a standard of proof when assessing the fear of persecution. |
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Subsequent application
Description
Where a person who has applied for refugee status in a Member State makes further representations or a subsequent application in the same Member State. Member States may apply a specific procedure involving a preliminary examination where a decision has been taken on the previous application or where a previous application has been withdrawn or abandoned. As with all aspects of the procedures directive, the same provisions will apply to applicants for subsidiary protection where a single procedure applies to both applications for asylum and subsidiary protection. |
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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. |
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Individual threat
Description
An individual threat to a civilian's life or person must be proven in order to establish the serious harm required before an applicant will be eligible for subsidiary protection status on the grounds set out in QD Art. 15(c). “Risks to which a population of a country or a section of the population is generally exposed do normally not create in themselves an individual threat which would qualify as serious harm.” |
Headnote:
The Court found a violation of Article 3 in relation to a subsequent application for asylum, which had been rejected on the basis that it contained no new elements indicating that the Applicants ran a real risk of being subjected to inhuman and degrading treatment or punishment on deportation to Russia. Because new information had in fact been provided, the national authorities were under an obligation to thoroughly review the information in order to assure themselves that the Applicants’ rights under Article 3 would be safeguarded.
Facts:
The Applicants are a Russian couple of Chechen origin. They fled Russia in fear of retaliations following the political assassination of the first Applicant’s father and a revenge-killing perpetrated by his eldest brother. They arrived in Belgium on 31 January 2007 and claimed asylum the next day. Their application was rejected by the Immigration Office on the basis that a personal vendetta did not amount to a ground for asylum. This was confirmed on appeal by the Commissioner General for Refugees and Stateless persons, which held that the Applicants’ account lacked credibility. The Applicants requested the cancellation of this decision by the Council of State, but were refused because they had failed to attend the hearing. They were then ordered to leave the territory.
The Applicants each lodged three further applications for asylum in May, June and August 2012. The Immigration Office refused to consider these on the basis that no new elements had been raised to indicate a well-founded fear of persecution or serious harm, despite the fact that some additional documents had been provided. In respect of all three further applications, the Applicants also applied to the Council of Aliens Law Litigation, seeking actions for annulment of these decisions as well as an extreme urgency procedure in relation to the orders to leave the territory. However, their appeals were again rejected in turn for a lack of new elements.
In September 2012, the Applicants were granted interim measures by the ECtHR under Article 39, preventing their deportation to Russia throughout the duration of proceedings before the ECtHR. Before the Court, the Applicants complain that their expulsion to Russia would constitute treatment contrary to Article 3 of the ECHR, and that they have not had access to an effective remedy in relation to the dismissal of their fourth application for asylum, in violation of Article 13.
Decision & reasoning:
Article 3
The Court first emphasised that Article 3 imposes an obligation on states not to deport an individual where there is evidence that doing so would expose him or her to a real risk of being subjected to inhuman and degrading treatment or punishment (Saadi v UK, N v UK, Hirsi Jamaa and others v Italy). It stressed that for these purposes, Article 3 calls for a thorough (Sultanti v France) and independent (Jabari v Turkey) investigation of the potential risks, but that this does not prevent states from adopting accelerated procedures for processing repeated or manifestly ill-founded claims (Mohammed v Austria).
Applying this to the facts, the Court noted that the Belgian authorities had failed to consider the Applicants’ risks of being subjected to treatment contrary to Article 3, instead refusing to consider their fourth application on the basis of a lack of new elements. Specifically, it emphasised that the additional evidence provided as new material by the Applicants had been rejected because, according to the date, it could have been included in an earlier application. The authorities carried out no assessment of its relevance, authenticity or probative value, and did not consider the explanations of the Applicants as to why they had been unable to provide the documents earlier, ultimately imposing an unreasonable burden of proof on them. To this end, the authorities had taken an excessively restrictive approach to the existence of new elements. In the absence of a comprehensive review of the risk which the Applicants would face, taking into account the documents submitted in their fourth application, the authorities could not claim to have sufficient evidence to be assured that they would not be at risk of treatment contrary to Article 3 on deportation (Tarakhel v Switzerland). Accordingly, the Court held that deportation would amount to a violation of Article 3.
Article 13
The Court did not find it necessary to separately consider Article 13, in light of its conclusions in respect of Article 3.
Outcome:
The Court found that the Applicants’ rights under Article 3 had been violated, but did not find it necessary to consider Article 13.
Observations/comments:
This summary was written by Georgia Kandunias, GDL student at BPP University.
Relevant International and European Legislation:
Cited National Legislation:
| Cited National Legislation |
| Belgium - Law on Foreigners [‘La loi sur les étrangers’] |
| as amended by the law of 8 May 2013 – Articles 48/3 |
| 48/4 & 51/8 |
Cited Cases:
| Cited Cases |
| ECtHR - N v United Kingdom (Application no. 26565/05) |
| ECtHR - Hirsi Jamaa and Others v Italy [GC], Application No. 27765/09 |
| ECtHR - M.S.S. v Belgium and Greece [GC], Application No. 30696/09 |
| ECtHR - Mohammed v Austria, Application No. 2283/12 |
| ECtHR - Saadi v. Royaume-Uni [GC], Application No. 13229/03 |
| ECtHR - Sultani v France, Application No. 45223/05 |
| ECtHR - Tarakhel v. Switzerland, Application no. 29217/12 |
| ECtHR - Aslakhanova and Others v. Russia, Applications nos. 2944/06 and 8300/07, 50184/07, 332/08, 42509/10 (UP) |
| ECtHR - M.V and M.T. v France, Application No. 17897/09 |
| ECtHR- I v. Sweden (Application no. 61204/09), 20 January 2014 |
| ECtHR- Singh and Others v. Belgium, Application no. 33210/11, 2 January 2013 |
| ECtHR - Jabari v. Turkey, Application no. 40035/98, 11 July 2000 |
| ECtHR - R.K. v. France (application no. 61264/11), 9 July 2015 |
Other sources:
Parliamentary documents [Documents parlementaires], Chambre 2005/2006, No. 2478/001, 100