Case summaries

The Court ruled that Malta violated Article 3, 5 and 13 of the Convention given the fact that the applicants, who were minors, endured inhumane detention conditions, lacked an effective remedy to challenge their detention, and faced unlawful deprivation of their liberty. 

The Committee found a violation of Article 3 of the Convention against Torture (non-refoulement), considering that the State party failed to address the individual circumstances and risk profile of the complainant, namely the fact that she was a woman of conscription age and a “failed asylum seeker”, when ascertaining whether her return to Eritrea would pose a risk of torture and inhuman and degrading treatment. Also, it observed that the State disregarded her asylum claim relying on the report’s findings, which did not meet the impartiality required as evidentiary proof.

Account must be taken of the evolution of the circumstances in the country of origin, from the moment of the application for international protection, until the moment when the Court has to take a decision.

In this instance, relying on the change of circumstances that has taken place in Ukraine since the Applicants introduced the demand, the Court grants subsidiary protection status to a Ukrainian family. The current international conflict taking place in Ukraine exposes them to a risk of  serious harm.

The assessment for a well-founded fear of persecution under the Refugee Convention must have regard to Country-of-Origin information and reports.  Moreover, if the publication of the applicant’s name will have no adverse effect on either him or his family, the appellant’s private life rights, protected by article 8 ECHR, will not outweigh the public interest in open justice, as protected by article 10 ECHR.

The High Court found that the Tribunal failed to ask itself the correct legal questions when assessing the issue of state protection in the applicants’ country of origin.

In specific, the High Court found that the Tribunalfailed to apply the correct approach to the ‘state protection test’ found in section 31 of the International Protection Act, 2015, by not seeking to establish whether an effective system of protection is in place, which is non-temporary in nature and which involves the taking of reasonable steps to protect those who otherwise faced a real risk of persecution or serious harm.

The Court found that there was a violation of Article 2 of the ECHR as State authorities used unreliable evidence to conclude their investigation into the death of an applicant. Moreover, the Court concluded that the State authorities violated Article 5 ECHR by failing to conduct an effective investigation into whether there was an alternative to detaining the applicants. As such, the detention of the children in a detention centre was further found to have violated Article 3, especially given the severity of the circumstances of the case and the period of their detention. The Court also concluded that the applicants had been subject to “expulsion” within the meaning of Article 4 of Protocol No. 4, since they were forcibly returned by the Croatian police outside official border crossings and without prior notification to the authorities of the country to which they were being returned.

With regard to the granting of subsidiary protection, the existence of real risks to the rights under Art. 2, 3 ECHR must be examined, which includes the obligation to consider ongoing developments on the basis of available information. If a deterioration of the security situation is disregarded, this could be seen as arbitrariness.

To determine whether there is a violation of Articles 2 and 3 ECHR in the context of expulsion, the Court analyses if the Applicant has presented substantial grounds on (i) whether he faces a real risk of ill-treatment or death in the country of destination, and (ii)whether the national authorities carried out an adequate assessment of the evidence. States have an obligation to analyse the risk ex propio motu when they are aware of facts that could expose an individual to the risk of treatment prohibited by Articles 2 and 3 ECHR.  If the domestic jurisdictions didn’t carry out a proper assessment, the Court analyses the risk on its own on the basis of the parties submissions, international reports and its own findings.

States have an obligation, under Article 5 § 1 ECHR, to act with due diligence and impose a reasonable period of detention pending expulsion. Article 5 § 4 ECHR is breached if detained individuals can’t obtain a revision of their detention before a domestic court. 

The current case concerns the expulsion of Mr. Arif Savran “the applicant” from Denmark to his country of origin, Turkey in 2015 because of his criminal convictions in Denmark. The applicant argued that his expulsion to Turkey had been in violation of Article 3 and Article 8 of the European Convention on Human Rights because he was suffering paranoid schizophrenia and that he was a “settled migrant”.

The Court found that expulsion of the applicant to Turkey did not violate Article 3 under the Paposhvili threshold test, because the evidence was not “capable of demonstrating that there are substantial grounds” for believing that as a “seriously ill person”, the applicant “would face a real risk… resulting intense suffering or to a significant reduction in life expectancy”.  Also, there was no evidence to show that applicant was causing harm to himself.

In relation to the violation of Article 8, the Court found that Danish authorities failed to consider the mental conditions of the applicant and the applicant expulsion to Turkey violated his “private life” under the Article 8 of the Convention.

The Court decides that the Bosnian administrative authorities unlawfully disregarded the legal provisions pursuant to which the applicant was entitled to other, similar benefits, despite the fact that she specifically invoked those provisions in her appeal. The Sarajevo Cantonal Court thus did not give the applicant’s case a fair hearing. Moreover, the applicant’s case was not remedied by the Constitutional Court.

The Court decides that the proceedings were excessive and failed to meet the ‘reasonable time’ requirement; the Bosnian Government did not put forward any fact or argument capable of justifying the length of the proceedings.