Judicial Review of Migrant Detention in Europe: In Search of Effectiveness and Speediness

Detention has been highlighted in recent years by a number of international and non-governmental organisations as an ineffective and inefficient tool of migration control employed by a large number of states. In 2013, the European Court of Human Rights continued to find violations of Article 5(4) of the Convention for the Protection of Human Rights and Fundamental Freedoms  (“ECHR”) by various state parties and even rendered a quasi-pilot judgment in the case of Suso Musa v. Malta.

The grounds of these violations related to the lack of an effective judicial review mechanism, and, in the majority of the cases, to national procedures that did not respect the speediness requirement of Article 5(4) ECHR. The possibility of detention for a maximum period of 18 months in EU member states, established by Article 15 of the ‘Return Directive’ in 2008, has rendered even more evident the need for an effective, speedy judicial review in immigration and asylum cases.

Article 5(4) ECHR entitles a detainee to institute proceedings challenging the procedural and substantive conditions upon which his deprivation of liberty is based. The general principles applied by the Court in this regard are set out in M.A. v. Cyprus, as follows:

• Article 5(4) does not guarantee a right to judicial review of such a scope as to empower the court, on all aspects of the case including questions of pure expediency, to substitute its own discretion for that of the decision-making authority. The review should, however, be wide enough to bear on those conditions which are essential for “lawful” detention.
• The remedies must be made available during a person’s detention with a view to that person obtaining speedy judicial review of the lawfulness of his detention capable of leading, where appropriate, to his release.  The accessibility of a remedy implies, inter alia, that the circumstances voluntarily created by the authorities must be such as to afford applicants a realistic possibility of using the remedy.
• The existence of the remedy required by Article 5(4) must be sufficiently certain, not only in theory, but also in practice.
• The requirement of procedural fairness under Article 5(4) does not impose a uniform, unvarying standard to be applied irrespective of the context, facts and circumstances.
• Under Article 5(4), all detainees also have a right, following the institution of such proceedings, to a speedy judicial decision concerning the lawfulness of their detention and to its termination if it proves unlawful.  In this context, the Court has laid down strict standards. For example, in the cases of Sarban v. Moldova, Kadem v. Malta  and Rehbock v. Slovenia, the Court concluded that time periods of twenty-one, seventeen and twenty-three days, respectively, were excessive.
• Although Article 5(4) does not require the existence of bi-level judicial review, in cases where it exists, both levels should meet the speediness requirement (Djalti v. Bulgaria, para. 64).

Of importance in this context is legal aid. Although the ECHR does not require provision of free legal aid in the context of detention proceedings, if legal representation is required under domestic law, the non-existence of legal aid raises issues of compatibility with Article 5(4) (Suso Musa v. Malta, para. 61).

In the case of Suso Musa, the Strasbourg Court took an exceptional step and adopted a quasi-pilot judgment, indicating to Malta (in the non-operative part of the judgment (para. 119 et seq.)) the necessity of general measures at the national level establishing, inter alia, a judicial- character mechanism providing for speedy and fair judicial review of migrant detention. What actually prompted the Court to act in this manner was its conclusion that the problems detected in the case could give rise to numerous other well-founded applications that would excessively burden the Court’s docket. The Court had already found a similar violation by Malta in 2010, in another case concerning migrant detention, Louled Massoud.

The above guidelines provided by the Strasbourg Court’s case law are significant, especially in a period when deprivation of migrants’, including asylum seekers’, liberty upon arrival or in view of forced return from Europe has been trivialised.

published at: http://ohrh.law.ox.ac.uk/?p=4126

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Iranian political activist converted to Christianity in Sweden fails to prove real risk upon return

F. G. v. Sweden, 16 January 2014

“32. The Court reiterates that the Contracting States have the right as a matter of international law and subject to their treaty obligations, including the Convention, to control the entry, residence and expulsion of aliens. However, expulsion by a Contracting State may give rise to an issue under Article 3, and hence engage the responsibility of that State under the Convention, where substantial grounds have been shown for believing that the person concerned, if expelled, faces a real risk of being subjected to treatment contrary to Article 3. In such a case, Article 3 implies an obligation not to expel the person in question to that country (Saadi v. Italy [GC], no. 37201/06, § 125, ECHR 2008).

33. The assessment of whether there are substantial grounds for believing that the applicant faces such a real risk inevitably requires the Court to assess the conditions in the receiving country against the standards of Article 3 of the Convention (Mamatkulov and Askarov v. Turkey [GC], nos. 46827/99 and 46951/99, § 67, ECHR 2005-I). These standards imply that the ill-treatment the applicant alleges he or she will face if returned must attain a minimum level of severity if it is to fall within the scope of Article 3. The assessment of this is relative, depending on all the circumstances of the case (Hilal v. the United Kingdom, no. 45276/99, § 60, ECHR 2001-II).

34. Moreover, the Court acknowledges that, owing to the special situation in which asylum seekers often find themselves, it is frequently necessary to give them the benefit of the doubt when it comes to assessing the credibility of their statements and the documents submitted in support thereof. However, when information is presented which gives strong reasons to question the veracity of an asylum seeker’s submissions, the individual must provide a satisfactory explanation for the alleged discrepancies (see, inter alia, Collins and Akaziebie v. Sweden (dec.), no. 23944/05, 8 March 2007, and N. v. Sweden, no. 23505/09, § 53, 20 July 2010). In principle, the applicant has to adduce evidence capable of proving that there are substantial grounds for believing that, if the measure complained of were to be implemented, he would be exposed to a real risk of being subjected to treatment contrary to Article 3 of the Convention. Where such evidence is adduced, it is for the Government to dispel any doubts about it (see NA. v. the United Kingdom, no. 25904/07, § 111, 17 July 2008).

35. Thus, in order to determine whether there is a risk of ill-treatment, the Court must examine the foreseeable consequences of sending the applicant to Iran, bearing in mind the general situation there and his personal circumstances (see Vilvarajah and Others v. the United Kingdom, 30 October 1991, § 108 Series A no. 215).

36. The above principles apply also in respect to Article 2 of the Convention (see, for example, Kaboulov v. Ukraine, no. 41015/04, § 99, 19 November 2009). The Court therefore finds that the applicant’s complaints under Articles 2 and 3 of the Convention are indissociable and it will therefore examine them together.

37. The Court notes that the applicant’s request for asylum was carefully examined by the domestic authorities. There are no indications that these proceedings lacked effective guarantees to protect the applicant against arbitrary refoulement or were otherwise flawed. The Court will therefore continue by examining whether the information presented before it could lead it to depart from the domestic authorities’ conclusions.

38. As regards the applicant’s political activities in Iran, the Court observes that he has claimed, inter alia, that he participated in the campaign for the opposition before and during the elections in 2009, that he worked with persons who were known to be opposed to the regime and that his work mainly entailed creating and publishing web pages. The Court finds that no information has emerged to indicate that the applicant’s political activities and engagement were anything more than peripheral. Furthermore, the Court notes that the domestic authorities considered that the applicant’s statements concerning his political activities were vague and lacking in details. The Court can see no reason to deviate from this assessment. Even at this late juncture, the applicant has failed to submit any detailed description of the webpages in question and their alleged critical content. Furthermore, and as the Government have underlined, the applicant has not submitted anything, apart from his own statements, to substantiate the existence of these web pages.

39. The Court also notes that the applicant has claimed that he was able to work with the web pages that contained the critical material until the elections in 2009. In other words, he was able to continue to publish material which was critical of the regime until the elections in 2009, even though he had been questioned in 2007 and despite the Iranian authorities being aware of his activities. The Court finds this remarkable, especially given that the applicant has stated that the material he had in his possession in 2007 did not differ from the material he had in his possession in 2009.

40. Furthermore, the Court observes that the applicant has not been summoned to appear before the Revolutionary Court since November 2009. It is also noted that the applicant has stated that his family in Iran has not been targeted because of his political activities. Lastly, it is observed that the applicant has not claimed to have continued his political activities following his arrival in Sweden.

41. As regards the applicant’s conversion, the Court observes that the applicant expressly stated, before the domestic authorities, that he did not wish to invoke his religious affiliation as a ground for asylum, since he felt that this was a private matter. The Court notes that the applicant had the opportunity to raise the question of his conversion during the oral hearing before the Migration Court but chose not to. This stance ultimately changed when the expulsion order against him became enforceable. Moreover, the applicant has claimed that he converted to Christianity only after arrival in Sweden and he has kept his faith a private matter. Against this background, and apart from the possible publication of the applicant’s image in connection with broadcasted church services, the transmission of which to the Iranian authorities is merely speculative, the Court finds that there is nothing to indicate that the Iranian authorities are aware of his conversion. Consequently, the Court considers that the applicant would not face a risk of ill‑treatment by the Iranian authorities on this ground.

42. In conclusion, the Court considers that the applicant has failed to substantiate that, if returned to Iran, he would face a real and concrete risk of being subjected to treatment contrary to Article 2 or 3 of the Convention. Consequently, his expulsion to Iran would not involve a violation of Article 2 or 3.”

Political activism in host country and fear of ill-treatment in case of return to Sudan

A.A. v. Switzerland, 07 January 2014

“38. As established in the Court’s case-law, Contracting States have the right as a matter of international law and subject to their treaty obligations, including the Convention, to control the entry, residence and expulsion of aliens (see Üner v. the Netherlands [GC], no. 46410/99, § 54, ECHR 2006‑XII). Expulsion by a Contracting State may however give rise to an issue under Article 3, and hence engage the responsibility of that State under the Convention, where substantial grounds have been shown for believing that the person concerned, if deported, faces a real risk of being subjected to treatment contrary to Article 3. In such a case, Article 3 implies an obligation not to deport the person in question to that country (see Saadi v. Italy [GC], no. 37201/06, § 125, ECHR 2008).

39. As established in the case of Mohammed v. Austria (no. 2283/12, § 109, 6 June 2013) the security and human rights situation in Sudan is alarming. Country reports further indicate that the situation has even deteriorated in the last few months (see paragraphs 20-28 above). However, while the Court has never ruled out the possibility of a situation of general violence in a country of origin triggering the application, and subsequently a breach of Article 3 upon the deportation of an applicant to the said country, it has also held that such an approach would only be adopted in the most extreme cases. It has generally insisted that an applicant shows that special distinguishing features existed in his case that could or ought to have enabled the Contracting State’s authorities to foresee that he or she would be treated in a manner incompatible with Article 3 (see, mutatis mutandis, NA. v. the United Kingdom, no. 25904/07, §§ 114-115, 17 July 2008).

40. With regard to the situation of political opponents of the Sudanese government, the Court nevertheless holds that the situation is very precarious. From the Country reports and the relevant case law above (see paragraphs 20-30), it is evident that suspected members of the SPLM-North, members of other opposition parties, civil society leaders and journalists are frequently harassed, arrested, beaten, tortured and prosecuted by the Sudanese authorities. Because of the ongoing war in different states, the SPLM-North has been banned by the Sudanese government and accordingly many people were detained because of their real or perceived links with that organisation. Furthermore, not only leaders of political organisations or other high-profile people are at risk of being detained, ill-treated and tortured in Sudan, but anyone who opposes or is only suspected of opposing the current regime. Moreover, it has been acknowledged that the Sudanese government monitors activities of political opponents abroad.

41. In the applicant’s case, the Court notes that he has been a member of the SLM-Unity in Switzerland for several years. The Government however disputed the genuineness of his activities. In this regard, the Court acknowledges that it is generally very difficult to assess in cases regarding sur place activities whether a person is genuinely interested in the political cause or has only become involved in it in order to create post-flight grounds. In similar cases, the Court has therefore taken into account factors such as whether the applicant was a political activist prior to fleeing his home country, and whether he played an active role in making his asylum case known to the public in the respondent State (see S.F. and Others v. Sweden, no. 52077/10, §§ 66-67, 15 May 2012, and N. v. Finland, no. 38885/02, § 165, 26 July 2005). In the present case, the Court however also has regard to the fact that the applicant joined the SLM-Unity in Switzerland several years before he launched his second asylum request, at a time when it still might not have been foreseeable for him to apply for asylum in Switzerland a second time. In view of the importance which the Court attaches to Article 3 of the Convention as set out above (see paragraph 38), and the irreversible nature of the damage which results if the risk of torture or ill-treatment materialises, the Court therefore prefers to assess the applicant’s claim on the grounds of the political activities he effectively carried out.

42. In this regard, the Court considers that the applicant’s political activities have increased in importance over time, as illustrated by his appointment as human rights officer of the SLM-Unity in Switzerland and his participation in international meetings on the human rights situation in Sudan. The Court however agrees with the Government insofar as the applicant’s political profile had not been very exposed. He had not, for example, delivered any talks in those conferences, and in the interview broadcast on the TV channel in Eastern Switzerland, he had not mentioned his political activities. The Court therefore considers that if the applicant were to be expelled to a country where the human rights situation of political opponents was less worrying than in Sudan, he would, on account of his political activities, not be exposed to a risk of treatment contrary to Article 3 of the Convention.

43. However, as set out above (see paragraph 40), not only leaders and high-profile people, but also those merely suspected of supporting opposition movements are at risk of treatment contrary to Article 3 of the Convention in Sudan. In the case of politically involved Sudanese nationals abroad, in particular those who had been seen to be affiliated with the SLM at the international meetings in Geneva, it has furthermore been established that they had been registered by the Sudanese authorities (see paragraph 30 above). In view of the applicant’s participation in the international human right meetings, where representatives of the Sudanese government were present and where usually only a few citizens of one country participate so that they are relatively easily identifiable, as well the applicant’s argument with the current Sudanese president’s brother, the Court cannot therefore rule out that he, as an individual, attracted the Sudanese government’s attention. Having also participated in some of those meetings on behalf of the SLM-Unity Switzerland, the Court believes that the applicant might, at least, be suspected of being affiliated with an opposition movement by the Sudanese government. It therefore finds that there are substantial grounds for believing that he might be known to the Sudanese government and would be at risk of being detained, interrogated and tortured as soon as he arrived at the airport in Sudan. Moreover, he would not have the opportunity to relocate. Accordingly, the Court finds that the implementation of the deportation order against the applicant would give rise to a violation of Article 3 of the Convention.”