ECtHR - Sow v. Belgium, Application no. 27081/13, 19 January 2016
| Country of applicant: | Guinea |
| Court name: | European Court of Human Rights |
| Date of decision: | 19-01-2016 |
| Citation: | Application no. 27081/13 |
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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Female genital mutilation
Description
Female genital mutilation (FGM) comprises all procedures that involve partial or total removal of the external female genitalia, or other injury to the female genital organs for non-medical reasons. |
Headnote:
The Court held that there was no violation of Article 3 ECHR in the event of the applicant’s removal to Guinea because the applicant had failed to show a real risk of being re-excised in the event of her return to her country of origin. The Court also found that there had been no violation of Article 13 ECHR.
Facts:
The applicant, a national of Guinea, arrived in Belgium on 9 September 2009. The applicant claimed asylum as she had partially undergone FGM and claimed to be at risk of re-excision if sent back to Guinea. This asylum claim was rejected by the Commissioner General for Refugees and Stateless Persons (CGRA) due to inconsistencies, a lack of credibility, and the failure to demonstrate a risk of being re-excised. The Council of Aliens’ Law Litigation (CCE) upheld this decision. A second asylum claim with new documents was also rejected by CGRA and CCE, and the applicant received an order to leave the territory. The applicant lodged a third asylum application, which the CGRA refused to consider as no new elements had been submitted. The applicant’s request for suspension of the expulsion order under the procedure for extreme urgency was rejected.
Decision & reasoning:
I. Article 3 ECHR
The Court noted that the fact that the applicant feared re-excision by her family is not excluded by Article 3 ECHR which applies equally when the danger comes from people or groups of people who do not constitute public authorities.
The Court recalled that the CGRA had subjected the first asylum application to a detailed and thorough examination. Its conclusion that the applicant was not at risk of re-excision upon return to Guinea was partially based on a report showing that this risk covered certain categories of persons to which the applicant did not belong. The applicant was at the time of the claim twenty-eight years old, was educated and her mother back in Guinea was not excised so could not be considered particularly vulnerable. The Court found nothing in this assessment arbitrary or manifestly unreasonable and followed their decisions in finding no violation of Article 3 ECHR to deport the applicant to Guinea.
II. Article 13 ECHR
The Court considered that it was legitimate for States to have domestic laws aimed at reducing repetitive and abusive, or manifestly unfounded asylum applications. National authorities could not be required to examine every new application by the applicant because these did not present new elements. The risk to the applicant of re-excision was examined in the first asylum decision, and the new medical reports submitted were probative of a fact that was not in dispute and that had already been considered. The Court therefore found no violation of Article 13 ECHR in conjunction with Article 3 ECHR.
Outcome:
No violation of Article 3 and 13 ECHR.
Observations/comments:
Cases on the same issue were declared inadmissible when they involved Nigeria as the country of origin: The Court found that women in Nigeria had traditionally been subjected to female genital mutilation (FGM) and to some extent still were. However, several states in Nigeria had prohibited FGM by law so could provide help and support to the applicants.
- Collins and Akaziebie v. Sweden, 8 March 2007
- Izevbekhai v. Ireland, 17 May 2011
- Omeredo v. Austria, 20 September 2011
This case summary was written by Clara Gautrais, GDL student at BPP University, UK.
Relevant International and European Legislation:
Cited Cases:
| Cited Cases |
| ECtHR - M.S.S. v Belgium and Greece [GC], Application No. 30696/09 |
| ECtHR - I.M. v France, Application No. 9152/09 |
| ECtHR – Saadi v. Italy, Application No. 37201/06, 28 February 2008 |
Other sources:
Mission report to the Republic of Guinea drafted jointly by the CGRA, the French Office for the Protection of Refugees and Stateless Persons (OFPRA) and the Federal Office for Migration (ODM) published in March 2012.
Subject related briefing on FGM in Guinea, written by the Documentation Center (CEDOCA) of the CGRA, dated May 2012 and last updated in April 2013.
CEDOCA, COI Focus on FGM in Guinea, updated on 6 May 2014.
Official Report concerning Guinea of 20 June 2014 prepared by the Ministry of Foreign Affairs of the Netherlands.