Case summaries
NB: the case was referred to the Grand Chamber, which issued a new ruling on 13 February 2020. For the EDAL summary of the final judgment, see here.
The continued and exclusive control of contracting State's authorities over individuals creates, at least, a de facto exercise of jurisdiction for the purposes of Article 1 ECHR.
The words "2, 4 and" and the sentence "This shall also apply in the cases of Section 3 para. 2 no. 1, if the decision is connected with the adoption of a measure terminating the stay". in Section 16 para. 1 BFA-Procedural Act (Bundesamt für Fremdenwesen und Asyl Verfahrensgesetz-BFA-VG), violates Article 136 para. 2 B-VG. The provision was repealed by the Constitutional Court as unconstitutional.
The ECtHR confirms previous decisions stating that Turkish law concerning procedural safeguards of detention continues to violate Article 5 §§ 4, 5 ECHR and that the applicant was not duly informed of the reasons for his detention. Moreover, the Court confirms that the detention conditions in Istanbul Kumkapi Removal Centre violate Article 3 ECHR.
Unaccompanied minor asylum seekers must always be provided with a legal representative. The transfer of custody by administrative bodies and not by a Court is not sufficient. Thus, the first-instance decision rejecting the asylum application of an Iraqi minor is invalid.
The right to be heard entails the obligation of the court to take note of the arguments put forward by the parties and to take these arguments into consideration when taking its decision. While this does not require the court to explicitly address every single fact put forward by the parties, the grounds of the decision have to refer to the essential issues raised by such facts.
In case of a single mother and her four minor children facing deportation to a country where beneficiaries of international protection had to live under difficult conditions, these personal circumstances of the applicants are of key importance to the legal evaluation. Independently of the question, whether deportations to Bulgaria were, in light of the current conditions, generally permissible, the provisions of Art. 21 et seqq. of the Reception Conditions Directive clearly stipulated that the concerns of families with children had to be given particular consideration.
Consequently, under such circumstances a court was required to specifically set out why it assumed that the family would be guaranteed suitable accommodation that excluded the possibility of health risks and met the needs of a family with children. Otherwise, the decision amounts to an infringement of the applicant’s right to be heard under Art. 103 (1) of the Basic Law.
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.
Following the appeal of the Children’s Rights Ombudsman, the Supreme Administrative Court set aside the order of the Regional Administrative Court, in relation to a challenge to the decision of the Polish Refugee Board, and set aside the aforementioned decision to refuse tolerated stay, dismissing the appeal in all other respects.
The court justified its decision with reference to the procedural errors of the Polish Refugee Board, which included failing to gather evidence in an appropriate manner and inappropriately establishing the facts relating to the Applicant’s children.
The Court rejected the Applicant's challenges to the respondent's decision to certify his asylum claim and deport him, on the grounds (i) of his mistaken assessment of his probable situation if deported to Italy, (ii) of his misreading of the Dublin III Regulation, specifically insofar as it applies to effective remedy.
A grave psychological disease (post-traumatic stress disorder – PTSd) is a reason to grant interim legal protection against deportation, if the applicant is in a state of self-endangerment or potentially suicidal in case of a deportation.
An application to suspend the effects of a decision, contained in an appeal of a decision ordering return and a ban from re-entering the territory of Poland and other Schengen area states should be allowed, due to the validity of the Applicant remaining in Poland pending the conclusion of the administrative court proceedings. Under art. 61 § 3 of the Act on Proceedings before Administrative Courts, the Court may, upon the application of the Appellant, order that the challenged decision be suspended, in whole or in part, if the act or function to be performed would result in a risk of significant harm or other consequences which are difficult to reverse.