Y.P. and L.P. v. France, No. 32476/06, 2 September 2010
| Country of applicant: | Belarus |
| Court name: | European Court of Human Rights, Fifth Chamber |
| Date of decision: | 02-09-2010 |
Keywords:
| Keywords |
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Country of origin information
Description
"Information used by the Member States authorities to analyse the socio-political situation in countries of origin of applicants for international protection (and, where necessary, in countries through which they have transited) in the assessment, carried out on an individual basis, of an application for international protection.” It includes all relevant facts as they relate to the country of origin at the time of taking a decision on the application, obtained from various sources, including the laws and regulations of the country of origin and the manner in which they are applied, regulations of the country of origin, plus general public sources, such as reports from (inter)national organisations, governmental and non-governmental organisations, media, bi-lateral contacts in countries of origin, embassy reports, etc. This information is also used inter alia for taking decisions on other migration issues, e.g. on return, as well as by researchers. One of the stated aims of the European Asylum Support Office (EASO) is to progressively bring all activities related to practical cooperation on asylum under its roof, to include the collection of Country of Origin Information and a common approach to its use. |
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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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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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Non-refoulement
Description
A core principle of international Refugee Law that prohibits States from returning refugees in any manner whatsoever to countries or territories in which their lives or freedom may be threatened. Note: The principle of non-refoulement is a part of customary international law and is therefore binding on all States, whether or not they are parties to the Geneva Convention. |
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Political Opinion
Description
One of the grounds of persecution specified in the refugee definition per Article 1A ofthe1951 Refugee Convention. According to the Qualification Directive the concept of political opinion includes holding an opinion, thought or belief on a matter related to potential actors of persecution and to their policies or methods, whether or not that opinion, thought or belief has been acted upon by the applicant. |
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Return
Description
"In the context of the Return Directive (2008/115/EC), the process of going back - whether in voluntary compliance with an obligation to return, or enforced - to: - one's country of origin; or - a country of transit in accordance with EU or bilateral readmission agreements or other arrangements; or - another third country, to which the third-country national concerned voluntarily decides to return and in which he/she will be accepted. There are subcategories of return which can describe the way the return is implemented, e.g. voluntary, forced, assisted and spontaneous return; as well as sub-categories which describe who is participating in the return, e.g. repatriation (for refugees)." |
Headnote:
Expulsion by France of two nationals of Belarus whose asylum claims had been rejected would amount to a violation of Article 3.
Facts:
The applicants, Y.P. and L.P. are a Belarusian couple. Y.P. was ill-treated by the authorities in Belarus due to his political activities as a member of the Belarus Popular Front from 1999 to 2004. He had been arrested, detained and violently beaten on multiple occasions.
They claimed asylum on arrival to Strasbourg, France, in February 2005, but their claim was refused on the ground that Y.P. had not given a sufficiently detailed account of his political involvement and alleged persecution. Their appeal was refused and orders for their deportation were issued in 2007 and 2008. They requested a review in April 2008 on the basis that on return to Belarus, they were at risk of imprisonment. This was also refused, and the finding upheld on appeal. The applicants were placed in administrative detention pending removal. They made a request to the ECtHR for interim measures to suspend their removal, which was granted.
The applicants alleged that they would be at risk of ill-treatment contrary to Article 3 ECHR upon removal to Belarus.
Decision & reasoning:
Although in France, non-nationals subject to a deportation order could lodge an administrative appeal with suspensive effect, the applicants could not be criticised for failing to use this as their previous asylum application had been refused and there had been no change in circumstances in Belarus. The Court stated that an applicant, who had exhausted one presumably effective and sufficient remedy, cannot be accused of not having tried to use other remedies that were available but hardly had more chances of success. Therefore it noted that the applicants have demonstrated the existence of special circumstances which dispensed them in the present case of the obligation to exhaust the remedy indicated by the Government.
The Court found that Y.P.’s account of ill-treatment in Belarus was credible and was supported by documentary evidence (medical certificates and statements of support).
The French authorities when refusing the claim had not had regard to any international objective reports on the situation in Belarus. When assessing Y.P.s risk on return they failed to consider his alleged continued political activities in France and the treatment faced by other opponents of the regime.
The Court observed that the passage of time did not automatically reduce the risks Y.P. would face on return. It noted that other political opponents in Belarus were regularly arrested and one had disappeared in unexplained circumstances.
It found that Y.P. had sufficiently demonstrated his involvement in political activities and that it was likely that the Belarus authorities would have access to this information. Y.P.s family members were also at potential risk of persecution on account of their association with him.
The Court concluded that removal of the applicants to Belarus would violate Article 3 of the Convention.
Outcome:
Violation of Article 3 (in case of expulsion)
Subsequent proceedings:
The request for referral to the Grand Chamber of the ECtHR was rejected
Relevant International and European Legislation:
Cited National Legislation:
Cited Cases:
| Cited Cases |
| ECtHR - Bahaddar v The Netherlands (Application no. 25894/94) |
| ECtHR - Hilal v United Kingdom, Application no. 45276/99 |
| ECtHR - Mamatkulov Askarov v Turkey, Applications nos. 46827/99 and 46951/99 |
| ECtHR - NA v UK, Application No. 25904/07 |
| ECtHR - Gordyeyev v Poland, Application No. 43369/98 and 51777/99 |
| ECtHR - N. v. Finland, Application No. 38885/02 |
| ECtHR - Riad and Idiab v. Belgium, Application Nos. 29787/03 and 29810/03 |
| ECtHR - Daoudi v. France, Application No. 19576/08 |
| ECtHR - Akdivar v Turkey, Application No. 21893/93 |
| ECtHR - Aquilina v. Malta [GC], Application No. 25642/94 |
| ECtHR - Salah Sheekh v The Netherlands, Application No. 1948/04, |
| ECtHR - Aksoy v Turkey, Application No. 21987/93 |
| ECtHR - Sultani v France, Application No. 45223/05 |
| ECtHR - Khashiev and Akayeva v. Russia nos. 57942/00 and 57945/00 |
| ECtHR - Ouzounoglou v. Greece, Application no. 32730/03 |
| ECtHR - Dimitrij Aleksandrevich Mostachjov and Others v. Sweden, Application no. 44891/04 |
| ECtHR - S. v. Finland, Application no. 48736/06 |
| ECtHR - VB v.France, Application no. 42975/07 |
| ECtHR - Svetlorusov v. Ukraine, Application no 2929/05 |
| ECtHR - Stankevich v. Ukraine, Application no. 48814/07 |
| ECtHR - Dubovik v. Ukraine, Application nos 33210/07 and 41866/08 |
| ECtHR - Koktysh v. Ukraine, Application no. 43707/07 |
| ECtHR - Puzan v. Ukraine, Application no. 51243/08 |
| ECtHR - Vasilina Matsiukhina and Aliaksandr Matsiukhin v. Sweden, Application no 31260/04 |
Other sources:
Council of Europe resolution 1671 (2009) on the situation in Belarus
Report of the parliamentary assembly of 5 June 2009
Recommendation 1874(2009) of the Parliamentary Assembly of the Counci lfo Eruope
Special Rapporteur of the United Nations on the situation of human rights in Belarus (January 15, 2007, A/HRC/4/16)
UK Border Agency report on the situation in Belarus, 1 October 2008
US Department of State Background note on Belarus, July 2009
Immigration and Refugee Board of Canada ‘Belarus: The treatment of members of th Belarusian Popular Front (BPF) and th availability of state protection for them(2001-2005)’
Robert Schuman Foundation report ‘Elections and referendum in Belarus’ October 17 2004