Case summaries

Since the situation of generalised violence which prevailed in Sri Lanka ended with the military defeat of LTTE combatants in May 2009, the only valid ground for claiming subsidiary protection would be Article L.712-1 b) Ceseda [which transposes Article 15 (b) of the Qualification Directive]. The applicant has to establish an individual risk of persecution or ill-treatment in case of return to his/her country of origin.

Prior to the ECtHR’s decision in MSS v Greece and Belgium, the Austrian Asylum authorities generally only used the sovereignty clause in relation to “Dublin cases” concerning Greece and vulnerable persons. The Constitutional Court refused the appeal on the basis that the applicant did not fall within a vulnerable group and because the Asylum Court’s decision was taken prior to MSS v Greece and Belgium.

The Palestinian applicant’s claim was rejected by the authorities as he was not found to be credible. However, the court held that the security situation in the West Bank needed to be reexamined on the basis of the latest country of origin information to assess if the applicant would face a risk of torture or inhuman treatment upon return.

The case concerned detention and detention conditions in Greece for a Turkish asylum seeker of Kurdish origin, who had been tortured in Turkey, and the conduct of the asylum procedure.

Young Nigerian women, especially those coming from the region of Benin City (State of Edo), who were forced to prostitute themselves in Europe in a transnational network of human trafficking, and who managed to extricate themselves from this network and to stop this forced activity, should not be seen as members of a particular social group in Nigeria. However, they face inhuman or degrading treatment in case of return to their country of origin and should therefore be granted subsidiary protection.

Inadequate care and unlawful detention of an unaccompanied minor seeking asylum: the case concerned the conditions in which a minor from Afghanistan, who had entered Greece illegally, was held in the Pagani adult detention centre on the island of Lesbos.

Legality of detention in the event of imminent deportation to Greece, if the detention was imposed before the judgment by the ECtHR in the case M.S.S. v Belgium and Greece (application no. 30696/09) and there is an enforceable expulsion decision.

This was an appeal against the rejection of an application for asylum before the Appeal Committees formed pursuant to Articles 26 and 32 of Presidential Decree 114/2010; and against the Minister for Citizen Protection's decisions 5401/3-498356 dated 11.2.2011 and 4000/1/67-f dated 18.5.2011. The rejection of the application (and the legal consequences arising from the rejection) was an excusable error, due to the body issuing the decision having adopted misguided practices. The fear of persecution was based on  membership of a particular social group. The domestic violence endured by the Applicant in the form of psychological stress and physical violence at the hands of her husband, in conjunction with the absence of State protection, constitutes a type of gender based persecution because those actions are detrimental to human dignity and physical integrity. Similarly, her non-conformist behaviour meant that she was exposed to the State's strict laws and practices which imposed disproportionately harsh punishment on women accused of having sexual relations outside marriage.

It was held that the implementation of laws (which may be derived from traditional or cultural norms and practices such as Sharia) which conflict with international human rights standards, and also the disproportionately harsh punishment imposed for non-compliance with a policy or for violation of a law (punishment, indeed, which shows gender based discrimination) could constitute persecution.

The imposition of corporal punishment by judicial and administrative authorities is contrary to the prohibition of torture and other cruel, inhuman or degrading treatment or punishment. The Applicant's disproportionately harsh punishment by whipping or even stoning is considered to be torture and constitutes a serious form of persecution since the right to not be subjected to torture or inhuman or degrading treatment is a protected right which is not subject to any exceptions. The prohibition of torture (Article 3 of the ECHR and Article 3 of the Convention against Torture) is absolute, and a grave violation of absolute rights is, undeniably, persecution.

The importance of preserving family unity is emphasised, taking into consideration the Final Act of the Conference which adopted the 1951 Convention relating to the Status of Refugees and the Preamble to Directive 2004/83/EC.

The court found that a prohibition of deportation under Section 60 (2) of the Residence Act (corresponding to Art. 15 (b) of the Qualification Directive) was established due to the existence of a general risk of persecution in case of return to Syria. The Administrative Court, in their assessment of risk, went far beyond the prevailing case law, particularly that of the High Administrative Courts.

A particular mode of persecution cannot be detected in Syria due to the arbitrariness and the juxtaposition of different intelligence services, whose impact cannot be predicted.

A further deterioration of the situation has occurred in light of recent developments and the bloody suppression of the protest movements.

Currently even persons who have not been politically active in exile are, with considerable probability, at risk of being arrested on return, not only for a short period - they are also at risk of torture and other inhuman treatment.

The Constitutional Court did not unreservedly uphold the judgment of the  Supreme Court. The Appellant in the case sought protection of his rights under Article 3 of the ECHR (and fundamental rights under Article 16(2) of the Constitution), which, in comparison with the other human rights and fundamental freedoms defined in the Convention, is characterised by an absolute and collective guarantee. In view of this, the Constitutional Court found that the standards of protection arising from Article 3 of the Convention (and Article 16(2) of the Constitution) should have been applied in the proceedings, even if such an obligation is not explicitly set out in the legislation, because these secure a greater range of constitutional rights and freedoms within the meaning of Article 154c(1) of the Constitution, and therefore take precedence over the law.