ECtHR- Singh and Others v. Belgium, Application no. 33210/11, 2 January 2013
| Country of applicant: | Afghanistan |
| Court name: | European Court of Human Rights Second Chamber |
| Date of decision: | 02-01-2013 |
| Citation: | ECtHR- Singh and Others v. Belgium, Application no. 33210/11, 2 January 2013 |
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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Indirect refoulement
Description
The duty of a State of non-refoulement under Article 33 of the 1951 Convention can include “indirect” or “chain-refoulement” via an alleged “safe third county”. According to the UNHCR,“indirect removal of a refugee from one county to a third country which subsequently will send the refugee onward to the place of feared persecution constitutes refoulement, for which both countries would bear joint responsibility.” |
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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 Grounds/Reasons
Description
Per Article 1A ofthe1951 Refugee Convention, one element of the refugee definition is that the persecution feared is “for reasons of race, religion, nationality, membership of a particular social group or political opinion“. Member States must take a number of elements into account when assessing the reasons for persecution as per Article 10 of the Qualification Directive. |
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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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Country of origin
Description
The country (or countries) which are a source of migratory flows and of which a migrant may have citizenship. In refugee context, this means the country (or countries) of nationality or, for stateless persons, of former habitual residence. |
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Race
Description
One of the grounds of persecution specified in the refugee definition according to Article 1A ofthe1951 Refugee Convention. According to the UNHCR: “Race, in the present connexion, has to be understood in its widest sense to include all kinds of ethnic groups that are referred to as “races” in common usage. Frequently it will also entail membership of a specific social group of common descent forming a minority within a larger population. Discrimination for reasons of race has found world-wide condemnation as one of the most striking violations of human rights. Racial discrimination, therefore, represents an important element in determining the existence of persecution.” According to the Qualification Directive the concept of race includes in particular considerations of colour, descent, or membership of a particular ethnic group. |
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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 case examined the allegations of the applicants that their deportation to Moscow will entail a real risk of refoulement to Afghanistan where they fear treatment contrary to Article 3 of the Convention. Further, it examined the applicants’ complaints of a violation of their right to an effective remedy in conjunction with Article 3, invoking Article 13 of the Convention.
Facts:
The applicants, five Afghan nationals, arrived in Belgium in March 2011 on a flight from Moscow and were refused entry in the country as they did not have the requisite documents. The Aliens Office ordered their removal on 19 March 2011 and they applied for asylum at the same time. A decision to be kept in a specific place was also taken at the same day.
Before the Belgian authorities, they alleged that they were Afghan nationals, members of the minority Sikh and fled Afghanistan in 1992 for India because of the civil war and the attacks and kidnappings of Sikh and Hindu communities at the time. In 2009, after the Russian authorities closed the business where the first applicant was working, they returned to Kabul and due to their feeling of insecurity, they had fled to Belgium.
The Office of the Commissioner General for Refugees and Stateless Persons (“CGRA”) rejected their applications for recognition of refugee status or subsidiary protection on the grounds that they had not proven their Afghan nationality and that they were travelling with false passports. Finally, it ruled the declarations of the applicants in relation to their stay in India and their demands for naturalisation were false. The applicants appealed against these decisions, presenting new documents in evidence.
The Council for Alien Law litigation (CALL) upheld the decision of the CGRA. The procedure of asylum was closed and their return date to Moscow was set on 30 May 2011. On that day, the applicants applied to the Court for an interim measure under Rule 39 of the Rules of Court in view of suspending their removal, which was granted for the duration of the proceedings before it. The applicants, no longer being subjected to an enforceable refoulement measure, were allowed to enter Belgium and were subsequently released from the transit zone.
Decision & reasoning:
With regards to the alleged violation of Article 13 in relation to the applicants’ refoulement, the Court noted that such violation was lifted at the moment where the risk of removal to Russia had been suspended in application of the interim measure of 30 May 2011 [81]. Regarding the possibility that the applicants be admitted-voluntarily or otherwise-from India, the Court observed that the Belgian government hadn’t submitted any convincing argument that this could be a realistic alternative. It further highlighted that the Belgian authorities appear not to have examined the risks of treatment contrary to Article 3 in case of return of the applicants to a third country [83].
Concerning their fears in Afghanistan, the Court took note of the existing reports showing that the ethno-religious minority of Sikh was and continued to be subjected to discrimination, harassments and violence [87].
The general principles governing the effectiveness of remedies and guarantees provided by the Contracting States in case of deportation of an asylum seeker under Articles 3 and 13 of the Convention include the availability and accessibility of recourse in law and practice, the competence of the national body to examine the contents of the complaint and offer the appropriate remedy and the automatic suspensive effect of the recourse [90-92]. In the case at hand, the Court concluded that the recourse against the measure of removal was not automatically suspensive from the execution of the measure of removal and therefore did not fulfil one of the requirements of Article 13 read in conjunction with Article 3 [97].
It further noted that neither CGRA nor CCE examined whether the applicants were at risk within the sense of Article 3, noting that this aspect was overshadowed at the level of CGRA by the examination of the applicants’ credibility and doubts concerning the veracity of their declarations. The CGRA had not made additional enquiries, for example to authenticate the identity documents presented, while the CCE had not made up for that omission. In its view, the documents submitted by the applicants had been capable of dispelling the doubts expressed by the CGRA as to their identities and previous movements. [100-101].
Therefore, it found a violation of Article 13 in conjunction with Article 3 of the Convention, given that the Belgian authorities did not examine the merits of the applicants’ complaints under Article 3 in accordance with the requirements of article.
Outcome:
Violation of Article 13 in conjunction with Article 3
Cited National Legislation:
Cited Cases:
| Cited Cases |
| ECtHR - Conka v Belgium (Application no. 51564/99) |
| ECtHR - Shamayev v Georgia (April 2005) (Application no. 36378/02) |
| ECtHR - Jabari v Turkey, 11 July 2000, (Application no. 40035/98) |
| ECtHR - Auad v. Bulgaria, Application No. 46390/10 |
| ECtHR - Çakici v. Turkey [GC], Application No. 23657/94 |
| ECtHR - Hirsi Jamaa and Others v Italy [GC], Application No. 27765/09 |
| ECtHR - Kudla v Poland [GC], Application No. 30210/96 |
| ECtHR - Guerra and Others v. Italy, 116/1996/735/932 |
| ECtHR - M.S.S. v Belgium and Greece [GC], Application No. 30696/09 |
| ECtHR - Selmouni v. France [GC], Application No. 25803/94 |
| ECtHR - I.M. v France, Application No. 9152/09 |
| ECtHR - Diallo v Czech Republic, Application No. 20493/07 |
| ECtHR - Gebremedhin (Gaberamadhien) v France, Application No. 25389/05 |
| ECtHR - Yoh-Ekale Mwanje v Belgium, Application No 10486/10 |
| ECtHR- Çelik and İmret v. Turkey, Application No. 44093/98 |
Follower Cases:
| Follower Cases |
| ECtHR - V.M. and others v. Belgium, Application no.60125/11, 7 July 2015 |
| ECtHR - M. D. and M. A. v Belgium, Application No. 58689/12, 19 January 2016 |
Other sources:
UN High Commissioner for Refugees (UNHCR), Eligibility Guidelines for Assessing the International Protection Needs of Asylum-Seekers from Afghanistan, 17 December 2010
UN High Commissioner for Refugees (UNHCR), Afghan Hindus and Sikhs : their situation and recommendations for the assessment of claims, July 2011
IRIN, Afghanistan : Focus on Hindus and Sikhs in Kandahar, 17 June 2002
UN Commission on Human Rights, Final report on the situation of Human Rights in Afghanistan, Special rapporteur, E/CN.4/1993/42, 18 february 1993
United Kingdom: Home Office, Operational Guidance Note: Afghanistan, March 2011
UNHCR, Global Appeal 2011, India, Update
European Committee for the Prevention of Torture and Inhuman and Degrading Treatment or Punishment (CPT), Conclusions and Observations of the 4th Periodic Report of the Russian Federation, 6 February 2007
U.S. Committee for Refugees and Immigrants, World Refugee Survey 2009 - Russian Federation, 2009