Case summaries

This case concerned the right to apply for asylum and seek an effective judicial remedy where the applicants had not reached Spanish territory (by land or sea). The Spanish Commission for Refugee Assistance (CEAR) lodged an appeal before the Supreme Court against a decision of the High National Court. CEAR alleged that the applicants’ right to seek asylum and the right to effective judicial protection had been violated. The Supreme Court held that the applicants could not exercise those rights as they had not arrived on Spanish territory.

When determining whether the maximum period for detention pending removal under the Returns Directive is exceeded, the following periods must be included: (1) periods of detention prior to the application of the Directive by the Member State; (2) periods of detention pending an asylum claim where no decision is made to transfer the individual from ‘detention pending removal’ to ‘detention pending asylum claim’; (3) periods of detention pending judicial review of the deportation. In addition, the ‘reasonableness’ of the prospects of removal must take account of whether removal can take place within the maximum period of detention time, and once the maximum period is exceeded, the individual can no longer be detained for the purpose of removal.

The applicants, who had been recognised as refugees by UNHCR, faced risk of ill-treatment contrary to Article 3 upon Turkey’s proposed  deportation of them to either Iran or Iraq. They had no effective opportunity to make an asylum claim or challenge their deportation. Further their detention had no legal justification and they had been unable to challenge its lawfulness. The Court found violations of Article 3, 13, 5(1), 5(2) and 5(4). 

In an application for subsidiary protection made after a failed refugee claim (and after a Deportation Order has been made), the Minister has a discretion to consider the application, which he can exercise if there is new information or altered circumstances. The absence of such means that that the Minister is entitled to refuse to entertain the application; there is no automatic right to make such an application at that late stage of proceedings.

In view of the fact that the Regional Court failed to address the objections made by the Appellant in his appeal, unlawfully considered the  Appellant to be making an application for recognition as a refugee sur place, failed to deal with the evidence submitted by the Appellant in conjunction with his appeal (that his case was different from an application for recognition as a refugee “sur place”), and since it was beyond doubt that the Court acted on outside of  the subject matter of the appeal, it denied the Appellant the opportunity to have his objections heard before the Court.

This case examines the differences between the procedure for examining a claim for asylum and the procedure for examining the application of exclusion clauses.

The case concerns access to a remedy with suspensive effect by an asylum seeker, who claimed asylum at the French border, against a potential removal from France to a country where there is real reason to believe he would face the risk of being subjected to ill-treatment contrary to Article 3 of the ECHR.

The Austrian authorities must, in each case, examine whether there exists a real risk of a violation of Art 3 ECHR through indirect refoulement when expelling an asylum applicant and, if such a risk exists, the authorities should exercise the sovereignty clause in the Dublin Regulation. This applies even where a request to take back is made to another Member State of the Dublin Regulation. Although the Asylum Board's reasoning for refusing the applicant's appeal against a transfer to Slovakia was not very detailed, it was not arbitrary and therefore there was no violation of the applicant's Constitutional rights.

Thirteen applicants from Georgia and Russia (of Chechen origin) alleged that their extradition to Russia, where capital punishment was not abolished, exposed them to the risk of death, torture or ill-treatment contrary to Articles 2 and 3 of the Convention. The applicants also alleged that they had been subject to violence and ill-treatment by fifteen members of the Georgian Ministry of Justice’s special forces in Tbilisi Prison no.5., on the night of 3 and 4 October 2002. Their legal representatives asserted that Mr Aziev, one of the extradited applicants, had died as a result of ill-treatment inflicted on him. The applicants also complained of violations of Article 2 and 3, Article 5 §§ 1, 2 and 4, Article 13 in conjunction with articles 2 and 3, Article 34, Articles 2, 3 and 6 §§ 1,2 and 3 and Article 38 § 1 of the Convention. 

The applicant was the leader of the PKK and the most wanted person in Turkey. He was arrested and sentenced to the death penalty. Breaches of Articles 3, 5 and 6 were found with regard to his detention, the imposition of the death penalty and his rights as the defence to a fair trial.