Case summaries

The administrative detention of an Afghan national was imposed on the basis of a procedural error due  to the lack of relevant documentation and unjustified information by the French authorities (Prefect and Prosecutor).

Law 12/2009 establishes a special guarantee for applications for international protection filed at the border, providing that legal assistance is mandatory at the time of formalising the request, and has to be provided even if the applicant does not ask for it or rejects it.

Moreover, communication must be in the language preferred by the applicant unless there is another language that he understands and in which he is able to communicate clearly.

The Court found that the new DL 34/2008 in no way affects the legal regime established by the previous Law 27/2008, which secures the right to a legal procedure free of judicial costs in asylum claims. The Law 27/2008, altered by the new Law 26/2014, does not establish a cost exemption, which, if it did, would be then regulated by the DL 34/2008.

The case concerns three unconnected Iranian nationals who unsuccessfully claimed asylum in the Republic of Cyprus then came to the UK where they made asylum claims.  A further right to appeal remained with the Cypriot Supreme Court.  The case is a challenge by the applicants to the SSHD’s refusal to decide their asylum claims substantively; certification of their asylum claims on safe third country grounds; and certification of their human rights claims as clearly unfounded.

The Court concluded that there was no real risk that the applicants, if returned to Iran from Cyprus, would be refouled there and the inclusion of Cyprus on the list of safe third countries involves no incompatibility with the ECHR.  The Court was wholly unpersuaded that there was any flagrant breach of Article 5 in Cyprus for Dublin returnees who have had a final decision on their claim.

If an appellant provides substantiated reasons that call into question the consideration of evidence in the administrative proceedings, the facts cannot be regarded as “well established on basis of the records in combination with the complaint”. Thus, an oral hearing has to be held. The same applies if there is a necessity to consider up-to-date country of origin information as well as an up-to-date medical report due to the long duration of the judicial proceedings.

In the opinion of the court, the absence of a legal representative in the oral hearing, in spite of an explicit request by the appellant, does not constitute a grave violation of procedural rules. The relevant provisions does not provide for any legal consequences for such failure to act. However, this interpretation is not mandatory due to the lack of explicitly regulated legal consequences and requires further clarification by the Supreme Administrative Court. 

The ECtHR holds that Russia is in violation of Article 5 ECHR and of Article 4 of Protocol 4 through the implementation of an unlawful administrative practice against a large number of Georgian nationals as a means of identifying them. This led to the arrest, detention and collective expulsion of 4634 Georgians from the Russian Federation and further violations of Articles 3 and 13 of the Convention.