ECtHR- A.A. v. France, Application no. 18039/11, 15 April 2015
| Country of applicant: | Sudan |
| Court name: | European Court of Human Rights Fifth Chamber |
| Date of decision: | 15-04-2015 |
| Citation: | A.A. v. France, Application no. 18039/11, 15 April 2015 |
Keywords:
| Keywords |
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Accelerated procedure
Description
Prioritisation or acceleration of any examination in accordance with the basic principles and guarantees of Chapter II of the Asylum Procedures Directive, including where the application is likely to be well-founded or where the applicant has special needs or for any of the reasons in Article 23(4) of the Asylum Procedures Directive |
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Assessment of facts and circumstances
Description
The duty of the state to carry out an individual assessment of all relevant elements of the asylum application according to the provisions of Article 4 of the Qualification Directive, including considering past persecution and credibility; and the duty of the applicant to submit as soon as possible all statements and documentation necessary to substantiate the application. |
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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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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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Individual assessment
Description
The carrying out of an assessment on an individual and personal basis. In relation to applications for international protection, per Article 4(3) of the Qualification Directive, this includes taking into account: (a) all relevant facts as they relate to the country of origin at the time of taking a decision; (b) the relevant statements and documentation presented by the applicant; “(c) the individual position and personal circumstances of the applicant, including factors such as background, gender and age, so as to assess whether, on the basis of the applicant's personal circumstances, the acts to which the applicant has been or could be exposed would amount to persecution or serious harm; (d) whether the applicant's activities since leaving the country of origin were engaged in for the sole or main purpose of creating the necessary conditions for applying for international protection, so as to assess whether these activities will expose the applicant to persecution or serious harm if returned to that country; (e) whether the applicant could reasonably be expected to avail himself of the protection of another country where he could assert citizenship.” |
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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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Previous persecution
Description
"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.” “The concept of previous persecution also deals with the special situation where a person may have been subjected to very serious persecution in the past and will not therefore cease to be a refugee, even if fundamental changes have occurred in his country of origin. It is a general humanitarian principle and is frequently recognized that a person who--or whose family--has suffered under atrocious forms of persecution should not be expected to repatriate. Even though there may have been a change of regime in his country, this may not always produce a complete change in the attitude of the population, nor, in view of his past experiences, in the mind of the refugee." |
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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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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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Personal circumstances of applicant
Description
The range of factors such as background, gender, age, and individual position which must to be taken into account in the assessment of an application for international protection per Article 4(3)(c) 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. |
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Access to the labour market
Description
Per Art 26 QD: Member States must authorise beneficiaries of international protection status to engage in employed or self-employed activities subject to rules generally applicable to the profession and to the public service immediately after the status has been granted. In the case of refugee status, Member States must ensure activities such as employment-related education opportunities for adults, vocational training and practical workplace experience are offered under equivalent conditions as nationals. In the case of subsidiary protection the same may be offered under conditions to be decided by the Member States. Per Art. 11 RCD: "Member States shall determine a period of time, starting from the date on which an application for asylum was lodged, during which an applicant shall not have access to the labour market. If a decision at first instance has not been taken within one year of the presentation of an application for asylum and this delay cannot be attributed to the applicant, Member States shall decide the conditions for granting access to the labour market for the applicant." |
Headnote:
The case examines the allegations of a Sudanese national- member of a non-Arab tribe in Sudan- that his deportation to that country would expose him to treatment contrary to Article 3 of the Convention because of his race and supposed links with the rebel movements in the country.
Facts:
The applicant is a Sudanese national, member of the“Birqid” tribe, a non-Arab tribe from Darfur. He claimed that one of his brothers joined the Justice and Equality Movement (JEM), one of the main rebel movements existing in Darfur, and that he himself did not join the movement even though he shared the Movement’s ideas. He was allegedly physically tortured, abused and detained by members of the Janjaweed for supposed knowledge of and affiliation with the JEM. He left Sudan, travelling through several countries before arriving in France in October 2010. On 28 October 2010 he was arrested by the French authorities. One day after, he was issued with a removal order and placed in administrative detention, then released due to the absence of an appointment with the Sudanese consular authorities for the issuance of a travel pass. He was subsequently the subject of a dozen of arrests and was placed in police custody. On each occasion, he was released after a few hours. On March 15, 2011, the Prefect of Pas-de-Calais took on the basis of the previous decision of 29 October 2010, a new order determining Sudan as a country of return and ordering the applicant's detention. On 21 March 2011 he applied to the European Court of Human Rights for an interim measure, under Rule 39 of the Rules of the Court. On 6 June 2011, he lodged an application for asylum, which was subsequently rejected by both the French Office for the Protection of Refugees and Stateless People (OFPRA) and on appeal to the National Court of Asylum (CNDA).
Decision & reasoning:
Referring in detail to case admissibility and the requirement that all domestic remedies have to be exhausted before the Court can deal with a case (Article 35 ECHR), the ECtHR noted that where a return decision is being appealed, Article 35 is usually fulfilled where the appeal has a suspensive effect (Y.P. and L.P. v. France) [42-46].
With regards to the inconsistencies in the applicant’s story underlined by the Government, the Court found that the applicant’s description of events in Sudan had remained consistent both before it and before the OFPRA and that only the chronology of events was different [54].
Making reference to the case A.A. v. Switzerland, the Court highlighted the alarming situation of human rights in Sudan especially concerning political opponents to the current regime, a situation that has become worse since the beginning of 2014[55]. It further mentioned international reports highlighting that individuals suspected of belonging to or supporting rebel movements continue to be arrested, detained and tortured by the Sudanese authorities [56].
Concerning the personal risks to the applicant, the Court acknowledged his risk of being persecuted on the one hand because he belonged to the non-Arab tribe of Birqid and on the other hand because of his supposed links with JEM [57]. Concerning his ties with the tribe of Birqid, the Court concluded that his belonging to an ethnic minority, victims of repeated persecution, represented a primary risk factor [58]. With regards to his links with JEM, the Court was of the opinion that the imposed sentence by the Sudanese authorities reflected their conviction of his involvement in a rebellion despite his claims of the opposite [60]. As a consequence, the Court considered that in case of return to Sudan, the applicant would risk being treated contrary to Article 3 of the Convention [62].
With reference to the complaint of the applicant under Article 13 in conjunction with Article 3 that he did not have at his disposal an effective recourse against the decision declaring Sudan as a country of return, the Court noted that this recourse was deprived of suspensive effect. It also noted that such a decision is provided with a suspensive effect if presented together with the appeal against the expulsion decision. Taking into account that the applicant had at his disposal once in detention another suspensive appeal that he refrained from using, the Court rejected his complaint in compliance with Article 35 para 1 of the Convention [63-64].
Outcome:
Violation of Article 3 in case of deportation of the applicant to Sudan
Relevant International and European Legislation:
Cited Cases:
| Cited Cases |
| ECtHR - Bahaddar v The Netherlands (Application no. 25894/94) |
| ECtHR - NA v UK, Application No. 25904/07 |
| ECtHR - M.S.S. v Belgium and Greece [GC], Application No. 30696/09 |
| ECtHR - Y.P. and L.P. v. France, Application No. 32476/06 |
| ECtHR - I.M. v France, Application No. 9152/09 |
| ECtHR - Aquilina v. Malta [GC], Application No. 25642/94 |
| ECtHR - N.K. v. France, Application No. 7974/11 |
| ECtHR - Dalia v. France, Application No. 26102/95 |
| ECtHR - Vernillo v. France, Application No. 11889/85 |
| ECtHR - A.A. v. Switzerland, Application No. 58802/12 |
| Menteş and others v. Turkey, no. 23186/94 |
| Civet v. France, no. 29340/95 |
| Gautrin and others v. France, no. 21257/93 21258/93 21259/93 21260/93 |
Follower Cases:
| Follower Cases |
| ECtHR – N.A v. Switzerland, Application no. 66702/13, 30 May 2017 |
Other sources:
Human Rights Watch, Darfur: UN Should End Silence on Rights Abuses, 22 August 2014
UN Security Council, Report of the Secretary-General on the African Union-United Nations Hybrid Operation in Darfur, 15 April 2014
UN News Service, Darfur: UN official urges support for peace process amid unfolding ‘new dynamics’, 24 April 2014
United Kingdom Home Office, Country of Origin Information Report- Sudan, 11 September 2012
United Kingdom: Home Office, Operational Guidance Note: Sudan, August 2012
United States Department of State, 2013 Country Reports on Human Rights Practices-Sudan, 27 February 2014
Amnesty International, Annual Report 2011