Ecrthr case summaries
The Court held that detention is considered to be arbitrary within the meaning of Article 5 § 1 ECHR, if the length of the detention exceeds what is reasonable for the purpose pursued. It is to be examined whether the authorities have acted with ‘due diligence’.
In cases, such as the present, where the detention has been upheld for a long period, although lawfully, authorities are required to take additional steps in order to proceed with an asylum claim more speedily. When the detained person can be considered as ‘vulnerable’ a higher level of ‘due diligence’ can be expected from the authorities. Even if the asylum claimant complicates the examination of his claim by not providing sufficient evidence, the failure of the authorities to take initiative to end the asylum claim, results in a violation of Article 5 § 1 ECHR.
An Eritrean national claimed refugee status in Switzerland as a result of having allegedly been beaten and tortured for his attempt to escape from military service. His attempt to rely on Article 3 of the Convention of Human Rights to avoid an expulsion order issued by the Swiss authorities was denied as a result of his failure to corroborate his story with factual evidence, inconsistencies in his account and the fact that risk of ill-treatment on his return to Eritrea could be mitigated.
A man of Arab ethnicity and Sudanese nationality sought refuge in Sweden as an asylum seeker after alleged persecution in Sudan. He stressed his involvement in political activities whilst in exile and the risk to his life deportation would pose. He claimed asylum on the basis that refusal would be in violation of Articles 2 and 3 of the Convention which the ECtHR denied.
Every country has the right to control the entry and residence of aliens in its territory. Withdrawal of subsidiary protection from individuals convicted of serious crimes and subsequent expulsion does not violate their right to family life under Article 8, when there are alternative means of communication, non-severed cultural ties with the motherland and a reasonable prospect of return after the entry ban expiry.
Lack of prompt investigation of ill-treatment complaints may amount to a procedural violation of Article 3 ECHR. Detention conditions should follow certain standards and individuals should be kept in suitable establishments with enough allocated space.
The Court finds that forced labour constitutes one form of exploitation subsumed by the definition of trafficking, as is clearly shown in Article 4a) of the Council of Europe Convention on Action against Trafficking in Human Beings.
The positive obligations under Article 4(2) of the ECHR must be interpreted in light of the Council of Europe Convention and the manner in which it has been interpreted by the Council of Europe's Group of Experts on Action against Trafficking in Human Beings. Contracting States have three positive obligations under Article 4(2):
a) an appropriate legal and regulatory framework for the criminalisation of human trafficking;
b) operational measures on the prevention of human trafficking and the protection of victims’ rights
c) an effective investigation and judicial procedure.
The ECtHR ruled that the border-control procedure to which three Eritrean nationals were submitted did not provide adequate safeguards capable of protecting them from arbitrary removal. The applicants were on board a vessel docked in an Ukrainian port and were only allowed to disembark after the ECtHR indicated interim measures for that purpose. Therefore, the ECtHR found a violation of Article 13 ECHR taken in conjunction with Article 3 ECHR.
The applicants’ detention under Article 5 (1) was arbitrary and did not ensure the principle of legal certainty; lack of information was contrary to Article 5 (2) and impaired their ability to challenge the detention decisions in violation of 5 (4). The conditions at the reception centre and the boats did not amount to a violation of Article 3, as the applicants’ stay was very short and there were not sufficient indications.
There was no violation of Article 4 Protocol 4, as the applicants have had a genuine and effective possibility during the entire procedure to raise concerns regarding obstacles to their return to Tunisia; there was similarly no violation of Article 4 Protocol 4 in conjunction with Article 13, since the applicants’ complain would solely relate on the collective nature of their expulsion and not to any real risk of treatment contrary to Article 2 & 3 in Tunisia.
Article 3 ECHR is triggered in cases involving the removal of a seriously ill individual where the absence of appropriate treatment in the receiving country or the lack of access to such treatment, exposes the individual to a serious, rapid and irreversible decline in his or her state of health resulting in intense suffering or to a significant reduction in life expectancy.
Access to sufficient and appropriate medical care must be available in reality, not merely in theory and the impact of removal on an applicant must be assessed by considering how an applicant’s condition would evolve after transfer to the receiving State.
The applicant was detained in the airport of Turkey when entering the country due to the fact he previously stayed in the country with an irregular immigration status.
During his detention he was subjected to overcrowding, unhygienic conditions and lack of proper food and medical attention, a situation could amount to inhuman or degrading treatment.