France: renvoi en Algérie en violation de la mesure provisoire de la Cour EDH

M.A. c. France, arrêt du 1er février 2018

Le requérant soutient que son renvoi en Algérie l’exposait à un risque sérieux de traitements  contraires à l’article 3 (interdiction de la torture et des traitements inhumains et dégradants), le  gouvernement algérien étant informé de sa condamnation en France pour des faits liés au  terrorisme. Il soutient avoir subi de tels traitements depuis son arrivée en Algérie et rester exposé à  des risques futurs. Il allègue qu’en le remettant aux autorités algériennes, en violation de la mesure  provisoire indiquée par la Cour, le gouvernement français a manqué à ses obligations au titre de  l’article 34 (droit de requête individuelle). Enfin, le requérant invoque également l’article 8 (droit au
respect de la vie privée et familiale), ainsi que l’article 3 au titre de son épouse et de ses enfants.

Violations constatées:

Article 3
La Cour réaffirme qu’il est légitime que les États contractants fassent preuve d’une grande fermeté à  l’égard de ceux qui contribuent à des actes de terrorisme. Elle observe, en l’espèce, que des rapports  du Comité des Nations Unies contre la torture et de plusieurs ONG décrivent une situation  préoccupante en Algérie. Ces rapports, qui datent de l’année au cours de laquelle le requérant a été  renvoyé en Algérie, signalent de nombreux cas d’interpellation par le Département du  renseignement et de la sécurité (DRS), particulièrement de personnes soupçonnées d’être  impliquées dans le terrorisme international. Ces personnes seraient alors placées en détention sans  contrôle judiciaire ou communication avec l’extérieur et pourraient être soumises à de mauvais  traitements, y compris à la torture.

La Cour note que le requérant a fait l’objet en France d’une condamnation motivée et détaillée, don’t  le texte est public. À son arrivée en Algérie, il a effectivement été arrêté par le DRS et emprisonné.
Au vu du profil du requérant, dont la condamnation pour des faits graves de terrorisme était connue  des autorités algériennes, la Cour considère qu’au moment de son renvoi en Algérie, il existait un  risque réel et sérieux qu’il soit exposé à des traitements contraires à l’article 3 de la Convention.
Les autorités françaises ont donc violé l’article 3 de la Convention.

Article 34
La Cour constate, comme le reconnait le Gouvernement, que la mesure provisoire n’a pas été  respectée. Pleinement consciente qu’il peut être nécessaire pour les autorités de mettre en oeuvre  une mesure d’expulsion avec rapidité et efficacité, elle rappelle que les conditions d’exécution d’une  telle mesure ne doivent pas avoir pour objet de priver la personne reconduite du droit de solliciter  de la Cour l’indication d’une mesure provisoire. La Cour observe que la décision de refus de  demande d’asile du 17 février n’a été notifiée au requérant que le 20 février, alors que les modalités
de son transport avaient déjà été retenues et qu’un laisser-passer avait été délivré par les autorités  algériennes à son insu. La Cour en conclut que les autorités françaises ont créé des conditions dans  lesquelles le requérant ne pouvait que très difficilement saisir la Cour d’une seconde demande de  mesure provisoire. Elles ont, délibérément et de manière irréversible, amoindri le niveau de  protection des droits énoncés par la Convention. L’expulsion a retiré toute efficacité à l’éventuel  constat de violation.
La Cour conclut que les autorités françaises ont manqué à leurs obligations découlant de l’article 34.

Voir communiqué de presse:http://hudoc.echr.coe.int/eng-press?i=003-5992943-7672730

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Migrant Ill-treatment in Greek Law Enforcement—Are the Strasbourg Court Judgments the Tip of the Iceberg? – article in European J’l of Migration & Law

Numerous instances of migrant ill-treatment, including torture, in Greek law enforcement have been recorded over a long period of time by international human rights monitoring organisations. The frequent reporting of such incidents though was not accompanied by any major judgments by the Strasbourg Court until Alsayed Allaham and Zontul in 2007 and 2012 respectively. The article provides an analysis of these first major judgments which usefully shed light on the underlying, long-standing systemic failures of the Greek law, as well as of the law enforcement and judicial authorities’ practice. It is argued that the above judgments are in fact only the tip of the iceberg. For this, the author looks into the process of supervision of these judgments’ execution by Greece, which is pending before the Council of Europe Committee of Ministers, as well as into alarming reports issued notably by the European Committee for the Prevention of Torture and the Greek Ombudsman. The article also highlights the question of racial violence that has not been tackled in the aforementioned judgments. However, the national Racist Violence Recording Network and the Greek Ombudsman have recorded numerous cases of racist violence by law enforcement officials targeting migrants and the ineffective response by the administrative and judicial authorities. The article concludes with certain recommendations in order to enhance Greek law and practice and eradicate impunity.

Link to article: http://booksandjournals.brillonline.com/content/journals/10.1163/15718166-12340005

An earlier version was published in February 2017 at SSRN: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2921109

 

Ill-Treatment of Migrants in Greek Law Enforcement – Are the Strasbourg Court Judgments the Tip of the Iceberg?

Originally posted on the Blog of Border Criminologies, Oxford University.

A number of reports by international human rights organisations, like CPT and Amnesty International, have recorded  numerous cases of ill-treatment, including torture, suffered by migrants while under the control of Greek law enforcement officials. Despite the frequent reporting of such incidents there have not been any major cases brought before the European Court of Human Rights (‘Strasbourg Court’ or ‘the Court’) until recently. In 2003 the first application (Alsayed Allaham), concerning the ill-treatment of a Syrian migrant by police in Athens, was lodged. The 2007 judgment against Greece in Alsayed Allaham was followed by another judgment in 2012 in the Zontul case condemning Greece once more for failing to investigate the rape of a Turkish asylum-seeking detainee by a coast guard officer in Crete. Both cases demonstrated the need for structural changes in Greek law and practice in order to eradicate impunity and ill-treatment in the law enforcement sector.

In both cases the Court found violations of Article 3 (prohibition of torture) of the European Convention on Human Rights (ECHR) highlighting faults in judicial and administrative proceedings. In Alsayed Allaham it was noted that the appeal court that acquitted the policeman for ill-treatment relied on testimonies of five eye-witnesses, three of whom were police officers, and gave no credit to medical reports that had verified the applicant’s injuries. In addition, no weight was given to the fact that the Head of the Greek police himself had sanctioned the two policemen involved in the applicant’s ill-treatment.

In Zontul the Strasbourg Court found that the administrative investigation and the subsequent criminal proceedings had been seriously flawed. Among the major shortcomings identified by the Court in the coast guard investigation was the failure to ensure the examination of the victim by a medical doctor despite the victim’s request and the improper recording of the victim’s statement as a ‘slap’ and ‘use of psychological violence’, instead of a rape. The sentence imposed on the officer, a suspended term of six months’ imprisonment for bodily injury and sexual dignity-related offences, was commuted to a fine of €4.40 per day of detention.

These two cases highlighted some key failings of the domestic criminal law system. First, the clemency of the criminal sanction imposed on the coast guard officer was manifestly disproportionate in relation to the gravity of the ill-treatment. It also did not demonstrate a deterrent effect nor did it provide an adequate remedy to the victim.

Second, Zontul shed light on a major flaw in Greek law and practice concerning the definition of torture in the criminal code (see more in author’s blog post). The  Court  stressed that, on the basis of its own and other international courts’ case law, such as the International Criminal Tribunal for the former Yugoslavia, rape with an object constitutes an act of torture and consequently a clear and substantive violation of Article 3 ECHR. However, according to Article 137A§2 of the Greek criminal code, in order for an act to be defined as torture it requires a ‘planned’ (μεθοδευμένη) infliction of severe physical, and other similar forms of pain on a person by a public official. This requirement, which does not exist in the  definition of torture contained in Article 1 of the 1984 Convention against Torture, makes prosecution and sanctioning extremely difficult, if not impossible.

The culture of impunity of ill-treatment is compounded by the enactment in recent years of a number of laws (e.g. Laws 3904/2010, 4093/2012) that aim to decongest Greek prisons by converting custodial sentences into pecuniary penalties and community service. Regrettably these laws have been applied indiscriminately to cases of ill-treatment by the police. This practice raises serious issues of compatibility with international standards, including the Strasbourg Court’s case law (e.g. Gäfgen v. Germany), according to which penalties imposed in this context should be adequate and dissuasive.

Another fault noted by the Court concerns the prescription terms for serious offences, including torture, by state officials. Because these are subject to ordinary prescription provisions, even where the Strasbourg Court finds a violation of Article 3 ECHR for torture that occurred more than 15 years earlier (as in Zontul), the offender cannot be prosecuted and sanctioned. According to the Greek code of criminal procedure, reopening a case may occur only if this could ameliorate the defendant’s position. However, under the Strasbourg Court’s case law (e.g. Yeter v. Turkey,) when a state agent is accused of crimes that violate Article 3 ECHR, the prosecution must not be time-barred and the granting of an amnesty or pardon should not be permissible.

Unfortunately, the Court in its judgments in Alsayed Allaham and Zontul failed to highlight the the potential racial bias by law enforcement officers in the ill-treatment of migrants. According to the CPT visit reports on Greece, since 1997 there has been a clear pattern of migrant ill-treatment among Greek law enforcement occasionally with flagrantly racist overtones. In addition, the yearly incidents of racist violence involving law enforcement officials, which were recorded from 2012 to 2015 by the national Racist Violence Recording Network (RVRN) ranged  from 11 to 31 per year, pointing to the prevalence of racist incidents in Greek territory.

Yet, Alsayed Allaham and Zontul reveal the institutionalised ill-treatment against migrants by Greek law enforcement officials. As noted in the 2015 CPT visit report on Greece, in defiance of the overwhelming evidence to the contrary, the national authorities consistently refuse to consider the violence of the police as a serious, systematic problem. As a consequence, the authorities have not taken adequate measures to combat it and eliminate impunity for serious human rights violations.

Evidence of the ill-treatment of migrants can also be found in the Greek Ombudsman’s reports. In 2007, for example, the annual report referred to cases of serious ill-treatment of migrants by coast guard officers. In a special report on racist violence in Greece issued in 2013 the Ombudsman noted that in 2012 their office received 17 complaints (involving migrants and a national of migrant origin) concerning inappropriate attitudes of police officers which were probably racially biased. The Ombudsman’s 2015 annual report referred to two more cases concerning the ill-treatment of five migrants following their arrest by police officers in Athens.

Three things need to change. First, Greece needs to establish an effective administrative mechanism to eradicate impunity and to provide adequate redress to all victims of ill-treatment. The latest complaint mechanism established by Law 4443/2016 is certainly a positive step. Yet it falls short of fulfilling the condition of effectiveness given the national complaint mechanisms is chaired by the Ombudsman, who is only empowered to issue non-binding reports.

Secondly, there is a need for a holistic overhaul of criminal law and practice concerning torture and other forms of ill-treatment, as well as of the relevant sentencing policy. The definition of torture contained in the Greek criminal code is in breach of international and European standards. This is one of the major reasons for the long-standing state of impunity for serious human rights violations in the country. At the same time, the criminal law provisions on prescription, conversion of custodial sentences and reopening of cases after Strasbourg Court’s judgments need to be reviewed and amended to ensure victim’s full redress.

Last but not least, particular attention needs to be given by the authorities to migrants who are easily subject to abusive behaviour, including ill-treatment, by law enforcement officials and very often remain voiceless victims. To this end, the European Commission against Racism and Intolerance (ECRI) has usefully recommended that states place law enforcement agencies under a statutory obligation to promote equality and prevent racial discrimination, including racist violence, in carrying out their functions. Enshrining this obligation in law would oblige these agencies to design and implement specific programmes, such as systematic training and awareness-raising of all staff.

In view of the above, the ill-treatment of migrants in Greek law enforcement cannot but be considered as a long-standing systemic problem that calls for sustained and determined action by the state. In a rule-of-law based democracy, law enforcement officers are and should act as professional upholders of the law and providers of services to the public. A precondition for achieving this is the development of policies and practices that oblige all state agents to respect human dignity, irrespective of one’s origin and status.

Paper on migrant ill-treatment in Greek law enforcement and Strasbourg Court case law

Sitaropoulos, Nikolaos, Migrant Ill -Treatment in Greek Law Enforcement – Are the Strasbourg Court Judgments the Tip of the Iceberg? (2017).  Available at SSRN: https://ssrn.com/abstract=2921109

The paper provides an analysis of the first major judgments of the Strasbourg Court which usefully shed light on the underlying, long-standing systemic failures of the Greek rule of law. The author argues that these judgments are in fact only the tip of the iceberg. For this the paper looks into the process of supervision of these judgments’ execution by Greece, which is pending before the Council of Europe Committee of Ministers, as well as into alarming reports issued notably by CPT as well as by the Greek Ombudsman. The paper also highlights the question of racial violence that has not been so far the subject of analysis in the Court’s judgments concerning ill-treatment in Greece. However, a number of reports, especially the annual reports of the Greek Racist Violence Recording Network since 2012, record numerous cases of racist violence by law enforcement officials targeting migrants and the ineffective responses by the administrative and judicial authorities.  The paper’s concluding observations provide certain recommendations in order to enhance Greek law and practice and eradicate impunity.

 

 

The incompatibility of the definition of torture in Greece with international law

In the course of its visits since 1993 and reports on Greece the European Committee for the Prevention of Torture (CPT) has recorded numerous cases of torture and other forms of ill-treatment. In its 2015 visit report on Greece, CPT noted that infliction of ill-treatment by law enforcement agents, particularly against foreign nationals, including for the purpose of obtaining confessions, continues to be a frequent practice. As noted in an earlier post, ill-treatment in Greece has in fact acquired an institutionalised form. For this, CPT considered essential for the Greek authorities to promote a “culture change where it is regarded as unprofessional to resort to ill-treatment”.

The latest report by CPT made also clear that one of the major reasons for this state of affairs is impunity due to lack of convictions. One of the major reasons for this is the problematic definition of torture in Greek law. This definition was introduced into the criminal code (Article 137A§2) in 1984 by Law 1500, although introduction of statutory legislation was prescribed already by Article 7§2 of the 1975 Greek Constitution. Torture is defined in Article 137A§2 primarily as the “planned” (μεθοδευμένη) infliction by a state official on a person of severe physical, and other similar forms of, pain. Under the established Greek case law and doctrine in order for the infliction of pain to be considered as “planned” it must be repeated and have a certain duration.

Domestic Greek law and practice on torture is clearly at variance with international human rights law standards. This was highlighted by the European Court of Human Rights (“the Strasbourg Court” or “the Court”) in 2012 in Zontul c. Grèce, a case concerning a Turkish asylum seeker who in 2001, while in detention on Crete, was raped with a truncheon by a coast guard officer. The naval tribunals, both in first instance and on appeal, did not qualify the applicant’s rape with a truncheon as torture but as an affront to the victim’s sexual dignity, an offence that, under Article 137A§3 of the criminal code, is sanctioned with imprisonment of at least three years (while torture is a felony and punished with at least five years’ imprisonment). In Zontul the actual penalties that were finally imposed on the main perpetrator and his accomplice were six and five months’ imprisonment, which were suspended and commuted to fines. The Strasbourg Court found a violation of Article 3 (prohibition of torture) ECHR noting, inter alia, that a detainee’s rape by a state agent has been considered as torture in its own case law as well as by other international courts, such as the International Criminal Tribunal for the former Yugoslavia.

Indeed, the conditioning of torture upon the existence of a “planned” infliction of severe pain raises serious issues of compatibility of the Greek criminal law with international human rights law. Firstly, it finds no ground in ECHR and the Strasbourg Court’s case law. In 2010 in Gäfgen v. Germany, the Grand Chamber of the Court noted that in determining whether ill-treatment can be classified as torture, consideration must be given to the distinction  between this notion and that of inhuman or degrading treatment. The Court added that  it appears that it was the intention that ECHR should, through this distinction, attach a special stigma to deliberate inhuman treatment causing very serious and cruel suffering. Apart from the severity of the treatment, there is a purposive element to torture. To support this the Court noted, as primary treaty-reference, the 1984 Convention against Torture (CAT), where (Article 1) torture is defined in terms of the intentional infliction of severe pain or suffering with the aim, inter alia, of obtaining information, inflicting punishment or intimidating.

As noted by the Strasbourg Court in Zontul (para. 47) in fact the draft text of CAT provided the model for defining torture in Law 1500/1984 that introduced the definition of torture into the criminal code. In addition, Greece by Law 1782/1988 ratified CAT, without any substantive reservations to the text of that treaty. Actually Law 1782/1988 constitutes a literal transposition into Greek law of CAT, including the definition of torture contained in Article 1 CAT. In view of the above it is hard to understand the deviation of the criminal code definition from international standards that appeared to guide the Greek law makers in 1984. The only logical explanation may be a wrong translation into Greek of the wording of Article 1 CAT.

In addition, the word “planned” is a vague term from a legal point of view that may ignite various interpretations. By its 2012 concluding observations, the UN Committee against Torture called on Greece to amend the torture definition in the criminal code so that it is “in strict conformity with and covers all the elements” provided for by Article 1 CAT and meets “the need for clarity and predictability in criminal law”.

The current wording of the Greek criminal code, and its application by the Greek courts, is clearly at variance with both CAT and ECHR and needs to be amended. Under Article 28§1 of the Greek Constitution, CAT and ECHR upon their ratification became an integral part of domestic law and prevail over any contrary provision of domestic law. As noted by A.A. Fatouros, when debating the above provision in 1975 in parliament, there was an overall agreement among the law makers that the Greek Constitution by Article 28§1 gives enhanced formal validity to both customary and conventional international law so that they prevail over both prior and subsequent statutory legislation. In fact the then Minister of Justice stated that the Greek government accepted the increased validity of treaties par excellence.

The execution by Greece of Zontul is still subject to supervision, under Article 46 ECHR, by the Council of Europe Committee of Ministers (CM), along with ten more cases (Makaratzis group of cases) against Greece concerning, inter alia, excessive use of force, ill-treatment by law enforcement officials and lack of effective investigations. The CM supervision has so far focused on the need for Greece to establish an effective administrative complaint mechanism for such cases. A mechanism provided for by Law 3938/2011 never became operational. Law 4443/2016, published on 9 December 2016, defined the Greek Ombudsman as the new national complaint mechanism covering all law enforcement and detention facility agents. The Ombudsman was given the competence for collecting, registering and investigating (also ex officio) individual complaints, and was accorded the power of issuing a report with non-binding recommendations addressed to the disciplinary bodies of the law enforcement authorities concerned.

Although this is a positive step, concern about the effectiveness of this new mechanism has been voiced by the Council of Europe Commissioner for Human Rights in a letter on the draft law which he addressed to the Greek government in July 2016. The primary reason for this concern is the non-binding force of the Ombudsman’s recommendations. However, even if the new complaint mechanism had been provided with stronger safeguards of effectiveness it would not have been in a position, on its own, to provide redress to victims of torture without an amendment of the criminal code or a change of the established domestic case law.

As stressed by the Strasbourg Court (see e.g. Zontul; Gäfgen) in cases of a person’s ill-treatment while in detention, or wilful ill-treatment contrary to Article 3 ECHR, adequate means of remedy is the one provided by criminal law. In order for an investigation to be effective in practice the state should enact criminal law provisions penalising practices that are contrary to Article 3. The Court in Zontul made it clear that the current Greek criminal code and case law do not fulfil this vital requirement. The best solution and way forward would be an amendment of Article 137A§2 of the criminal code so that it is fully aligned with the standards contained in ECHR and CAT.

Published at: http://verfassungsblog.de/the-incompatibility-of-the-definition-of-torture-in-greece-with-international-law/

 

 

Strasbourg Court cautions against return of asylum seeker to Turkey from Greece

In B.A.C. v. Greece, judgment of 13 October 2016, the Strasbourg Court found (potential) violations of ECHR highlighting two major issues: the non-delivery by Greece of a final decision on the Turkish asylum seeker’s application for approx. 12 years; and the substantial risk of ill-treatment by Turkey in case of a forced return.

The case concerned a political activist who had been detained and tortured in Turkey in mid- late 1990s. His extraditions request had been rejected by Greece.

The judgment has potential ramifications for other similar cases of Turkish asylum seekers pending in (or forthcoming)  Greece/Strasbourg.

Link to press release: http://hudoc.echr.coe.int/eng-press?i=003-5517200-6939523

 

Social rights of failed asylum seekers and Art. 3 ECHR

In an interesting decision, Hunde v. Netherlands, 05/07/2016, the Strasbourg Court elaborated on a question concerning fundamental social rights (housing and emergency social assistance) of a failed asylum seeker and their interplay with Art. 3 ECHR. The decision is of particular interest because it differentiates the status of a failed, and allegedly uncooperative, asylum seeker from that of an asylum seeker whose application is pending as was the case in M.S.S.

The decision contrasts with those adopted by the European Committee of Social Rights in 2014 in  Conference of European Churches (CEC) v. the Netherlands (complaint no. 90/2013) and in European Federation of National Organisations working with the Homeless (FEANTSA) v. the Netherlands (complaint no. 86/2012). Therein ECSR  found that the Netherlands had violated Article 13 §§ 1 and 4 of the European Social Charter, which guarantees the right to social assistance, and Article 31 § 2 of the Charter, the right to housing, by failing to provide adequate access to emergency assistance (food, clothing and shelter) to adult migrants in an irregular situation

Excerpts of decision:

1. General principles

45. Article 3 of the Convention enshrines one of the most fundamental values of democratic societies and prohibits in absolute terms torture and inhuman degrading treatment or punishment irrespective of the circumstances and of the victim’s conduct (see, among many authorities, Labita v. Italy [GC], no. 26772/95, § 119, ECHR 2000‑IV). The prohibition of torture and inhuman or degrading treatment or punishment is a value of civilisation closely bound up with respect for human dignity (Bouyid v. Belgium [GC], no. 23380/09, § 81, ECHR 2015).

46. Unlike most of the substantive clauses of the Convention, Article 3 makes no provision for exceptions, and no derogation from it is permissible under Article 15 § 2 even in the event of a public emergency threatening the life of the nation. Even in the most difficult circumstances, such as the fight against terrorism and organised crime, the Convention prohibits in absolute terms torture and inhuman or degrading treatment or punishment, irrespective of the conduct of the person concerned. (see, among other authorities, Chahal v. the United Kingdom, 15 November 1996, § 79, Reports of Judgments and Decisions 1996-V; Georgia v. Russia (I) [GC], no. 13255/07, § 192, ECHR 2014 (extracts); and Svinarenko and Slyadnev v. Russia [GC], nos. 32541/08 and 43441/08, § 113, ECHR 2014 (extracts)).

47. The Court has held on numerous occasions that to fall within the scope of Article 3 the ill-treatment must attain a minimum level of severity. The assessment of this minimum is relative: it depends on all the circumstances of the case, such as the duration of the treatment and its physical or mental effects and, in some instances, the sex, age and state of health of the victim (see for example Kudła v. Poland [GC], no. 30210/96, § 91, ECHR 2000‑XI).

48. Ill-treatment that attains such a minimum level of severity usually involves actual bodily injury or intense physical or mental suffering. However, even in the absence of these aspects, where treatment humiliates or debases an individual, showing a lack of respect for or diminishing his or her human dignity, or arouses feelings of fear, anguish or inferiority capable of breaking an individual’s moral and physical resistance, it may be characterised as degrading and also fall within the prohibition set forth in Article 3 (see, among other authorities, Vasyukov v. Russia, no. 2974/05, § 59, 5 April 2011; Gäfgen v. Germany [GC], no. 22978/05, § 89, ECHR 2010; Svinarenko and Slyadnev, cited above, § 114; and Georgia v. Russia (I), cited above, § 192).

49. The present case concerns the question whether the State had a positive obligation under Article 3 to provide the applicant – a rejected asylum-seeker at the material time – emergency social assistance. In that regard, the Court reiterates that Contracting States have the right, as a matter of well-established international law and subject to their treaty obligations, to control the entry, residence and expulsion of aliens (see, for example, Hirsi Jamaa and Others v. Italy [GC], no. 27765/09, § 113, ECHR 2012; Üner v. the Netherlands [GC], no. 46410/99, § 54, ECHR 2006-XII; Abdulaziz, Cabales and Balkandali v. the United Kingdom, 28 May 1985, § 67, Series A no. 94; and Boujlifa v. France, 21 October 1997, § 42, Reports 1997-VI). The corollary of a State’s right to control immigration is the duty of aliens to submit to immigration controls and procedures and leave the territory of the Contracting State when so ordered if they are lawfully denied entry or residence (Jeunesse v. the Netherlands [GC], no. 12738/10, § 100, 3 October 2014).

50. Aliens who are subject to expulsion cannot, in principle, claim any entitlement to remain in the territory of a Contracting State in order to continue to benefit from medical, social or other forms of assistance and services provided by the expelling State (see N. v. the United Kingdom [GC], no. 26565/05, § 42, 27 May 2008).

51. Moreover, Article 3 cannot be interpreted as obliging the High Contracting Parties to provide everyone within their jurisdiction with a home (see Chapman v. the United Kingdom [GC], no. 27238/95, § 99, ECHR 2001‑I). Nor does Article 3 entail any general obligation to give refugees financial assistance to enable them to maintain a certain standard of living (see Müslim v. Turkey, no. 53566/99, § 85, 26 April 2005).

52. In the case of M.S.S. v. Belgium and Greece ([GC], no. 30696/09, ECHR 2011), the Court, attaching “considerable importance to the applicant’s status as an asylum-seeker and, as such, a member of a particularly underprivileged and vulnerable population group in need of special protection” (§ 251), considered, in so far as relevant:

“252. … the Court must determine whether a situation of extreme material poverty can raise an issue under Article 3.

253. The Court reiterates that it has not excluded the possibility ‘that State responsibility [under Article 3] could arise for “treatment” where an applicant, in circumstances wholly dependent on State support, found herself faced with official indifference when in a situation of serious deprivation or want incompatible with human dignity’ (see Budina v. Russia (dec.), no. 45603/05, 18 June 2009).”

2. Application of the general principles to the present case

53. The main thrust of the applicant’s complaint pertains to Articles 13 and 31 of the Charter and the decisions adopted by the ECSR on 1 July 2014 (see paragraph 37) which, in his view, lead to the conclusion that the denial of shelter and social assistance diminished his human dignity in a manner incompatible with Article 3 of the Convention. The Court acknowledges the importance of the economic and social rights laid down in the Charter and the issues raised in the two decisions by the ECSR. However, it cannot accept the applicant’s argument that the findings by the ECSR under the Charter should be considered to lead automatically to a violation of Article 3 of the Convention.

54. Whilst the Convention sets forth what are essentially civil and political rights, many of them have implications of a social or economic nature (see Airey v. Ireland, 9 October 1979, § 26, Series A no. 32). Furthermore, inherent in the whole of the Convention is a search for a fair balance between the demands of the general interest of the community and the requirements of the protection of the individual’s fundamental rights (see Soering v. the United Kingdom, 7 July 1989, § 89, Series A no. 161). While it is necessary, given the fundamental importance of Article 3 in the Convention system, for the Court to retain a degree of flexibility to prevent expulsion in very exceptional cases, Article 3 does not place an obligation on the Contracting State to alleviate such disparities through the provision of free and unlimited health care to all aliens without a right to stay within its jurisdiction. A finding to the contrary would place too great a burden on the Contracting States (see A.S. v. Switzerland, no. 39350/13, § 31, 30 June 2015).

55. In the case at hand and during the period complained of, the applicant was not entitled to any social assistance in the Netherlands. Referring to M.S.S. v. Belgium and Greece (cited above), the applicant argued that the situation he found himself in was very similar to the situation in that case. However, there are crucial differences in that, unlike the applicant in M.S.S who was an asylum-seeker, the applicant in the present case was at the material time a failed asylum-seeker under a legal obligation to leave the territory of the Netherlands. Furthermore, even though the applicant’s loss of entitlement to legal residence in the Netherlands after the rejection of his asylum claim did not automatically affect his vulnerability as a migrant, the situation in which he found himself remained significantly different from that of M.S.S.. In the latter case, the relevant facts which had culminated in a finding of violation of Article 3, were the long duration in which the applicant had lived in a state of the most extreme poverty (the lack of food, hygiene and a place to live), and of fear of being attacked and robbed together with the fact that there had been no prospect of improvement. Furthermore, that situation was linked to his status as an asylum-seeker and, consequently, the applicant’s suffering could have been alleviated if the Greek authorities had promptly assessed his asylum application. By failing to do so the applicant was left in uncertainty.

56. Turning back to the present case, and emphasising once more that the applicant was a failed asylum-seeker at the material time, the uncertainty he found himself in was inherently different from M.S.S. in that it was not linked to the Netherlands authorities’ assessment of his asylum request. His asylum statement had already been examined and his asylum application refused, of which the applicant has not complained before the Court. Furthermore, it cannot be said that the Netherlands’ authorities have shown ignorance or inaction towards the applicant’s situation. After the applicant’s asylum proceedings had come to an end, the applicant was afforded a four week grace period to organise his voluntary return to his country of origin during which period he retained his entitlement to State-sponsored care and accommodation. Moreover, after he had overstayed this grace period, the applicant had the possibility of applying for reception facilities at a centre where his liberty would be restricted (see paragraph 31 above). The fact that admission to this centre was subject to the condition that he would cooperate in organising his departure to his country of origin cannot, as such, be regarded as incompatible with Article 3 of the Convention.

57. The Court also takes into account the fact that if it had been impossible for the applicant to return to his country of origin – either voluntarily or involuntarily – for reasons which cannot be attributed to him, he had the possibility of applying for a residence permit for persons who, through no fault of their own, are unable to leave the Netherlands (see paragraph 32 above). Nothing in the case file shows, however, that he has ever applied for such a residence permit. Nor has he ever contended at any stage during the domestic proceedings that he could not leave the Netherlands through no fault of his own.

58. The Court further observes that according to the general information provided by the Repatriation and Departure Service, returns to Ethiopia – voluntary or not – are possible, albeit with the alien’s cooperation if he or she is not in the possession of an original passport (see paragraph 39 above). The applicant submitted that he was released from immigration detention in July 2013 because an effective removal to his country of origin proved impossible, however without explaining why this was so. As the applicant was an undocumented migrant at the material time (see paragraph 6 above), his cooperation – in the form of expressing a willingness to return to Ethiopia and signing the request for a laissez-passer – was required in order to obtain a laissez-passer. However, in the applicant’s own admission, he did not wish to cooperate with the domestic authorities in organising his departure to Ethiopia.

59. The Court reiterates that there is no right to social assistance as such under the Convention and to the extent that Article 3 requires States to take action in situations of the most extreme poverty – also when it concerns irregular migrants – the Court notes that the Netherlands authorities have already addressed this in practical terms. In the first place, the applicant had the possibility of applying for a “no-fault residence permit” and/or to seek admission to a centre where his liberty would be restricted. It is furthermore possible for irregular migrants to seek a deferral of removal for medical reasons and to receive free medical treatment in case of emergency (see paragraph 30 above). In addition, the Netherlands have most recently set up a special scheme providing basic needs for irregular migrants living in their territory in an irregular manner (see paragraph 5 above). It is true that that scheme was only operational as from 17 December 2014, one year after the applicant had taken shelter in the Refuge Garage. However, it is inevitable that the design and practical implementation of such a scheme by local authorities of different municipalities take time. Moreover, the scheme was brought about as a result of a series of elements at the domestic level, including the applicant’s pursuit of domestic remedies in connection with his Article 3 claim. In these circumstances it cannot be said that the Netherlands authorities have fallen short of their obligations under Article 3 by having remained inactive or indifferent.

60. Considering the above, the Court finds that this part of the application is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.

Link: http://hudoc.echr.coe.int/eng?i=001-165569