One of the legal provisions of the Greek Constitution that struck me most as a young law student was Article 120, paragraph 4. I still remember its impact on my thinking during my first year at the Law School of the Aristotle University of Thessaloniki. This provision, whose origins can be found in the post-1821 years of the Greek Revolution and early constitutions of the country, says that ‘Greeks’ patriotism’ is entrusted with the observance of the constitution. It adds that Greeks have the right and the duty to resist by all possible means any attempts to abolish the Constitution by violence.
As far as I know this is a somewhat rare constitutional provision. Moreover, I think it is an example of one of the paradigm principles of democracy, because apart from indicating the rights of citizens, it also recalls that they have duties, both collectively and individually. Indeed, one of the major factors that may make democracies function properly is the effective participation of citizens in the evolution of their polities. As Pericles famously said, a citizen who is not involved in public matters is useless.
One of the fundamental rights and duties of a citizen is to vote for his/her country’s parliamentary elections. In this regard, ever since 1975, Article 51, paragraph 4, of the Greek constitution provides for the enactment of legislation that would enable Greek expatriates to vote in parliamentary elections wherever they happen to reside. However, more than forty years have passed and this law has not been adopted. It is clearly an area of policy which needs further thought and attention.
It was against this background and the government’s decision on 18 August 2007 to carry out early parliamentary elections on 16 September 2007 that Christos Giakoumopoulos, Stephanos Stavros and myself met up in early September 2007 and, after some discussion on the subject, decided to ‘do something’ in order to exercise our voting rights.
This ‘something’ was no less than an application to the European Court of Human Rights claiming that Greece had violated our ‘right to free elections’ as enshrined in Article 3 of the First Protocol to the European Convention on Human Rights (ECHR). This Article provides for the obligation of states to create conditions that ‘ensure the free expression of the opinion of the people in the choice of the legislature’, an obligation that Greece had not fulfilled at that time, and still has yet to do so. Yes, we were determined to act, and to do so speedily since the early parliamentary elections were due in two weeks’ time.
Nonetheless, we were far from sure that we would have any impact on Greek state practice, let alone win the case in Strasbourg. Actually I remember discussing the lodging of this application in London with a well-known human rights lawyer who told me ‘forget it’. He was sure that we had no chance whatsoever to win. And he was not alone to warn me. Others also told me, in rather derisory tones, that we could surely afford to pay the €500 or so travel expenses in order to get ourselves to Greece in time to vote. But this was not the point. Nor did it concern me alone. The question was much more fundamental: should Greek citizens really have to pay money to exercise their basic human rights?
Although, according to the ECHR, we did not need to exhaust any domestic legal remedies before addressing the Court, we thought it was proper to make a formal contact with the Greek authorities beforehand. So I drafted a joint letter to the Ambassador of Greece to France in Paris and faxed it to his offices on 10 September 2007. By this means, the three of us – Greek citizens, staff members of the Council of Europe, and residents of Strasbourg – were formally submitting a request to the Greek authorities to take urgent and appropriate measures to enable us to vote in France for the forthcoming parliamentary elections.
On 12 September 2007 we received an urgent reply from the Greek ambassador. He noted that the Greek state intended to facilitate the voting by Greek expatriates in their countries of residence but given that no law to that effect had been adopted yet, our voting in France was de facto impossible. It was an important admission. In other words, the Greek authorities not only acknowledged the long-standing existence of a legal obligation, under ECHR and the Greek Constitution, to pass the appropriate legislation, but also admitted the state’s failure to fulfill this obligation which had been pending, unimplemented, since 1975.
Eight days later I crossed the bridge between the Palais de l’Europe and the Palais des Droits de l’Homme and handed a blue folder to the secretary of the Court’s Greek division. It contained the application that I had drafted in co-operation with my other two Greek colleagues, and was formally identified as No: 42202/07, Sitaropoulos et autres c. Grèce. The case was later renamed Sitaropoulos et Giakoumopoulos c. Grèce, given that the third colleague subsequently withdrew his participation.
I will not elaborate on the legal arguments put forward to substantiate a violation of the Convention due to the fact that we could not vote in Greece on 16 September 2007. The essence of our claim was that to travel from Strasbourg to Samos, Corfu and Thessaloniki, where each of us had our respective voting venues, would involve a total of about two days of travel, including multiple flights or very long drives, the distance from Strasbourg to Thessaloniki being around 2 000 kms. We added that we found unreasonable the fact that while expatriates can vote for the elections of the European Parliament in Greek consulates in whatever country they happened to reside , Greece was unable to organize similar arrangements in the case of their parliamentary elections.
On 8 July 2010, the Court’s First Chamber delivered its judgment. It was in our favour, by five against two deciding judges. Although the judgment noted that states are autonomous when it came to regulating their voting procedures, it found that Greece had indeed violated the Convention; it confirmed that there had been no enactment of the law provided for by the Greek constitution enabling expatriates to vote from abroad for more than three decades. The Court took also into account the relevant state practices in Europe which indicated that the vast majority of European states authorized and made it possible for their expatriates to vote from abroad for parliamentary elections.
Particularly heartening to me was the partly dissenting opinion of Judges Spielmann and Jebens. They believed that, given the finding of a violation of a fundamental right, the Court should have awarded us just satisfaction in order to redress the moral harm that we had suffered. This opinion is just one page long but its tone and sensitivity touched me a great deal. It brought to my mind the famous acclamation of the humble miller in Potsdam, ‘There are still judges in Berlin’.
The judgment was a cause for celebration and gave us all much joy. It was an outcome that could benefit not just us as applicants but also around four million Greeks living abroad. With a group of Greek friends I fêted our victory by drinking beer at the terrace of Franchi’s, opposite the Court. Our hope was that there would be no appeal of this judgment by the government, that it would become final and that we would be able to exercise our voting rights from Strasbourg for the next elections.
As was to be expected, the Chamber judgment attracted considerable international and national media attention. It even seemed to trigger or at least accelerate legislative changes in Turkey, which created an overseas voters registry in 2012, allowing Turkish expatriates to vote in the countries of their residence for parliamentary elections. In recent years, Albania too appears to be moving in this direction, another European country whose government has reportedly made clear its aim to grant out-of-country voting rights to expatriates.
This was not, however, the case with Greece. Our hopes proved to be only wishful thinking. On 7 October 2010 the Greek government requested that the Chamber’s judgment be referred to the Grand Chamber. One of the government’s main arguments was that the judgment distanced itself from the Court’s established case law that grants national authorities a large margin of appreciation in matters relating to voting rights.
On 22 November 2010 the Court accepted the government’s request and the case was referred to the Grand Chamber which delivered its judgment on 15 March 2012. This followed a hearing on 4 May 2011 in which I participated along with the Greek lawyer, Yannis Ktistakis, who had taken over the case. Although I was familiar with the Court, having worked in its building for more than three years, it was quite stressful to be sitting there for almost three hours, alone with my lawyer and his assistant, having the entire mechanism of the Greek state, represented by two lawyers, ranged before me. A couple of questions which were posed by the judges at the end of the hearing made me realize that at least some members of the Grand Chamber were not entirely certain that Greece was under an obligation, under ECHR, to give effect to our voting rights abroad.
Regrettably, my fear proved to be true. The Grand Chamber overturned the 2010 judgment by a unanimous vote. All 17 judges concluded that there was no violation of the Convention given that the very essence of our voting rights had not actually been impaired. Some of the major arguments on which this conclusion was based were that under international law, states had no obligation to enable expatriates to exercise their right to vote. The Court, therefore, could not instruct Greece on how and when and in what manner it should give effect to Article 51, paragraph 4, of its Constitution. The judgment also noted that the government had actually made an unsuccessful attempt to pass relevant legislation in 2009. In addition, it determined that the disruption to our financial, family and professional lives caused by our travel to vote in Greece in 2007, would not have been disproportionate.
Like most Grand Chamber judgments, this too became a cause célèbre and gave rise to a number of academic publications and press releases in Greece and elsewhere in Europe. Notably, Lina Papadopoulou, a Constitutional Law Professor, clearly pointed out in an article she published a day after the Grand Chamber judgment, that although Greece might be absolved from an international duty to regulate expatriates’ voting rights, it remained under its own constitutional obligation to do so.
Sitaropoulos and Giakoumopoulos also became a textbook case taught in constitutional and European human rights law courses from that time. In the major ECHR reference book by Harris, O’Boyle and Warbrick (OUP 2014) the Grand Chamber judgment is cited with disappointment noting that ‘the unanimous ruling did not acknowledge – as the Chamber judgment did- the crippling impact on voting rights that the lack of absent voting facilities may have on expatriates unable to afford to travel to Greece to vote’.
So perhaps our efforts were not in vain. Apart from the above-mentioned electoral policy changes in certain states following these judgments, experts have noted that there is now a clear trend in favour of out-of-country voting in Europe. In this context, Sitaropoulos and Giakoumopoulos is mentioned as a landmark case and has definitely contributed to this evolution. More recent case law of the Strasbourg Court has also indicated that globalization and modern technology changes should be considered as factors favouring out-of-country voting nowadays.
As regards Greece in particular, the efforts to give Greek expatriates their voting rights have not ceased. As of April 2016, a law proposal to this effect, tabled by seventy-five Greek MPs, has been pending in the Greek parliament, while earlier this year the government announced its intention to launch a public debate on this issue, expressly acknowledging the existence in Europe of a trend that favours out-of-country voting.
Application No. 42202/07 was an enriching adventure for me. Although its end was not an entirely happy one, the journey towards it gave me great satisfaction because I felt that it contributed to the evolution of law and policy concerning a fundamental political right for every human being: that of voting for one’s national parliament. In addition, it was the fulfillment of a civic obligation I believe I had towards my country’s democratic institutions and values that, as a first year law school student, I had discovered that I had the constitutional right and duty to defend. In addition, it fulfilled a moral obligation I felt I had as a staff member of the Council of Europe, an international organization which enshrined the highest standards of democracy and human rights whose protection, I also believe, should start at home.
SMM v. UK, ECtHR judgment of 22 June 2017
This is an interesting Chamber judgment that highlights the need for prompt state action and review of the lawfulness of detention of particularly vulnerable migrants, such as those suffering from mental illness.
In addition, the judgment sheds some light at the long-standing issue of migrant detention in the UK which remains with no fixed time limits, despite the repeated recommendations made by national and international human rights institutions.
In view of these two major elements, the Court found a violation of Article 5§1 ECHR having considered the fact that the applicant (national of Zimbabwe) had been detained for over two and a half years.
Link to judgment: http://hudoc.echr.coe.int/eng?i=001-174442
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.
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.
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
PACE Resolution 2109 (2016) The situation of refugees and migrants under the EU-Turkey Agreement of 18 March 2016
1. The Parliamentary Assembly takes note of the European Union-Turkey Agreement of 18 March 2016, adopted against the background of the unprecedented numbers of refugees and migrants arriving in western Europe via the Eastern Mediterranean and Western Balkans route in 2015, which had generated political tensions in many States and an institutional crisis in the European Union. It recalls the fact that Turkey currently hosts over 2.7 million Syrian refugees, on whom it estimates to have spent over €7 billion.
2. The Assembly considers that the EU-Turkey Agreement raises several serious human rights issues relating to both its substance and its implementation now and in the future, in particular the following:
2.1. the Greek asylum system lacks the capacity to ensure timely registration of asylum applications, issue of first instance decisions or determination of appeals; the new Greek Law 4375/2016 may help to address earlier shortcomings but will not ensure adequate capacity;
2.2. detention of asylum seekers in the “hotspots” on the Aegean islands may be incompatible with the requirements of the European Convention on Human Rights (ETS No. 5), due notably to procedural failures undermining the legal grounds for detention and inadequate detention conditions;
2.3. children and vulnerable persons are not systematically referred from detention to appropriate alternative facilities;
2.4. returns of Syrian refugees to Turkey as a “first country of asylum” may be contrary to European Union and/or international law, as Turkey may not ensure protection that is “sufficient”, according to the position of the Office of the United Nations High Commissioner for Refugees (UNHCR), and there have been reports of onward refoulement of Syrians;
2.5. returns of asylum seekers, whether Syrians or not, to Turkey as a “safe third country” are contrary to European Union and/or international law, as Turkey does not provide them with protection in accordance with the 1951 Convention relating to the Status of Refugees, non-Syrians do not have effective access to the asylum procedure and there have been reports of onward refoulement of both Syrians and non-Syrians;
2.6. remedies against decisions to return asylum seekers to Turkey do not always have automatic suspensive effect, as required by the European Convention on Human Rights;
2.7. resettlement of Syrian refugees from Turkey is made conditional on the number of returns from Greece and will subsequently depend on a “Voluntary Humanitarian Readmission Scheme”, which is likely in practice to generate unacceptably low levels of resettlement;
2.8. there have been unreasonable delays in the European Union’s disbursement of Financial assistance promised to Turkey to help support Syrian refugees in Turkey, which should not depend on developments in the Aegean Sea.
3. The Assembly also has concerns relating to certain parallel initiatives in areas closely related to the EU-Turkey Agreement, in particular the following:
3.1. the closure by “the former Yugoslav Republic of Macedonia” of its southern border, coupled with the EU-Turkey Agreement, has added to the pressure on Greece, a country already struggling with the effects of budgetary and financial austerity;
3.2. most European Union member States have effectively failed to honour their pledges to relocate refugees from Greece, despite the growing pressure that country is under;
3.3. it is premature to consider resuming transfers to Greece under the Dublin Regulation given the continuing inadequacies of its asylum system, the additional pressure of its current situation and the fact that the Committee of Ministers of the Council of Europe has not yet closed supervision of execution by Greece of the judgment of the European Court of Human Rights in the case of M.S.S. v.Belgium and Greece.
4. The Assembly therefore recommends that Greece, as an implementing party of the EU-Turkey Agreement, and the European Union, insofar as it provides relevant operational assistance to the Greek authorities:
4.1. refrain from automatic detention of asylum seekers and ensure strict adherence to the requirements of national law, the European Convention on Human Rights and European Union law concerning both the grounds for and conditions of detention, with adequate provision for alternatives where detention is not justified or otherwise inappropriate, including following the expiry of time limits;
4.2. systematically ensure that children and vulnerable persons are promptly excluded from detention and referred to appropriate alternative facilities;
4.3. ensure that the rights and provisions under the European Union Reception Conditions Directive are fully respected for all refugees and migrants arriving in Greece;
4.4. refer the question of interpretation of the concept of “sufficient protection” in Article 35 of the
European Union Asylum Procedures Directive to the Court of Justice of the European Union and, until such interpretation has been given, refrain from involuntary returns of Syrian refugees to Turkey under this provision;
4.5. refrain from involuntary returns of asylum seekers to Turkey in reliance on Article 38 of the Asylum Procedures Directive;
4.6. ensure that sufficient resources, from within the Greek administration and seconded from other European Union member States, are rapidly made available so as to allow effective access to a proper asylum procedure and rapid first instance decisions and appeal determination, in accordance with European Union law, especially for applicants in detention;
4.7. revise the legislation to ensure that all appeals against decisions to return to Turkey have an automatic suspensive effect;
4.8. ensure that all migrants and asylum seekers whose applications are not accepted are treated with dignity and in full compliance with the European Union Return Directive.
5. The Assembly also recommends to the European Union, its member States, and States participating in European Union resettlement schemes, as appropriate:
5.1. resettlement pledges made under the 20 July 2015 European Union agreement on resettlement should be rapidly and fully honoured, regardless of developments in the implementation of the EUTurkey Agreement; beyond that, substantial numbers of Syrian refugees should be resettled from Turkey;
5.2. family reunion of refugees should be allowed without any delay or complicated procedures, in order to prevent family members from being forced to take an irregular route to reunification;
5.3. the financial assistance promised to Turkey in November 2015 to help support Syrian refugees should be disbursed without further delay;
5.4. commitments to relocate refugees from Greece should be rapidly fulfilled;
5.5. there should be no further consideration of resuming transfers to Greece under the Dublin
Regulation until the Committee of Ministers has closed its supervision of execution by Greece of the M.S.S. judgment.
6. Finally, the Assembly recommends that Turkey:
6.1. withdraw its geographical limitation to the 1951 Refugee Convention and recognise the status and fully respect the rights of refugees under that convention;
6.2. refrain from any onward refoulement of asylum seekers returned from Greece, ensuring access to the asylum system and to an effective remedy with suspensive effect against removal as required by the European Convention on Human Rights;
6.3. ensure that all migrants and asylum seekers returned from Greece are treated in full accordance with international standards, including on detention.
The case F.G. v. Sweden (application no. 43611/11) concerned the refusal of asylum to an Iranian national converted to Christianity in Sweden. The applicant, F.G., notably alleged that, if expelled to Iran, he would be at a real risk of being persecuted and punished or sentenced to death owing to his political past in the country and his conversion from Islam to Christianity.
In the Grand Chamber judgment (23/03/2016) in the case the European Court of Human Rights held, unanimously:
that there would be no violation of Article 2 (right to life) and Article 3 (prohibition of torture and of inhuman or degrading treatment) of the European Convention on Human Rights, on account of F.G.’s political past in Iran, if he were deported to his country of origin, and
that there would be a violation of Articles 2 and 3 of the Convention if F.G. were to be returned to Iran without a fresh and up-to-date assessment being made by the Swedish authorities of the consequences of his religious conversion.
The Court pointed out that the case involved important issues concerning the duties to be observed by the parties in asylum proceedings.
The Court considered that there was no evidence to support the allegation that the national authorities, in their decisions refusing asylum, had been wrong to come to the conclusion that F.G. had been a low-profile activist or political opponent and was not therefore in need of protection in Sweden. Indeed, they had taken into account F.G.’s political activities against the Iranian regime, as well as the fact that he had been arrested on a number of occasions and summoned before the Iranian courts. Nor could the Court conclude that the asylum proceedings had in any way been inadequate as concerned its assessment of F.G.’s political activities.
However, as concerned F.G.’s conversion to Christianity, the Swedish authorities had so far never made an assessment of the risks that F.G. could encounter upon returning to Iran. Regardless of F.G.’s conduct (namely, the fact that he declined to invoke his conversion as an asylum ground in the original proceedings), the Court considered that the Swedish authorities would now be under an obligation – given the absolute nature of Articles 2 and 3 of the Convention – to make a fresh assessment, of their own motion, of all the information brought to their attention before taking a decision on his removal.
Court’s press release: http://hudoc.echr.coe.int/app/conversion/pdf?library=ECHR&id=003-5334476-6650466&filename=Grand%20Chamber%20judgment%20F.G.%20v.%20Sweden%20-%20refusal%20of%20asylum%20to%20an%20Iranian%20national%20converted%20to%20Christianity%20in%20Sweden.pdf
Judgment delivered on 7 July 2015 by the ECtHR
The applicants are seven Serbian nationals, a father and mother and their five children. They were born in 1981, 1977, 2001, 2004, 2007 and 2011 respectively and live in Serbia. Their eldest daughter,
who was born in 2001 and was mentally and physically disabled from birth, died in December 2011.
The applicants are of Roma origin and were born in Serbia, where they have lived for most of their lives.
In March 2010 the applicants travelled to France, where they submitted an asylum application which was rejected. In March 2011 they travelled to Belgium and lodged an asylum application there. On
12 April 2011 the Belgian authorities submitted a request to the French authorities to take back the family. On 6 May 2011 France accepted the request under the Dublin II Regulation2. On 17 May 2011 the Aliens Office in Belgium issued the applicants with an order to leave Belgian territory for France, on the ground that Belgium was not responsible for considering the asylum application under the Dublin II Regulation. On 25 May 2011 the time-limit for enforcement of the order to leave the territory was extended until 25 September 2011 owing to the mother’s pregnancy and imminent
On 16 June 2011 the applicants submitted to the Aliens Appeals Board a request for the suspension and setting-aside of the decision refusing them leave to remain and ordering them to leave the country. On 22 September 2011 the applicants applied for leave to remain on medical grounds on behalf of their disabled eldest daughter. The Aliens Office rejected their application. On 26
September 2011, on expiry of the time-limit for enforcement of the order to leave the country, the applicants were expelled from the Sint-Truiden reception centre where they had been staying, as
they were no longer eligible for the material support provided to refugees. They travelled to Brussels, where voluntary associations directed them to a public square in the Schaerbeek municipality in the centre of the Brussels-Capital district, together with other homeless Roma families. They remained there until 5 October 2011. On 7 October 2011 they were assigned to a new reception facility as a mandatory place of registration in the Province of Luxembourg, 160 km from Brussels. The applicants eventually took up residence in Brussels North railway station, where they remained for three weeks until their return to Serbia was arranged on 25 October 2011 by a charity under the return programme run by Fedasil, the federal agency for the reception of asylum seekers.
In a judgment of 29 November 2011 the Aliens Appeals Board set aside the impugned decisions (the refusal of leave to remain and the order to leave the country) on the grounds that the Aliens Office had not established on what legal basis it considered France to be the State responsible for the applicants’ asylum application. The Belgian State lodged an appeal on points of law with the
Conseil d’État against the judgment of the Aliens Appeals Board. In a judgment of 28 February 2013 the Conseil d’État declared the appeal inadmissible for lack of current interest, given that the
applicants had returned to Serbia and that the Belgian State had been released from its obligations under the procedure for determining the Member State responsible for their asylum application.
Complaints, procedure and composition of the Court:
Relying on Article 3 (prohibition of inhuman or degrading treatment), the applicants complained that their exclusion from the reception facilities in Belgium from 26 September 2011 onwards had
exposed them to inhuman and degrading treatment. Under Article 2 (right to life), they alleged that the reception conditions in Belgium had caused the death of their eldest daughter. Lastly, under
Article 13 (right to an effective remedy), they complained that they had been unable to assert before the courts their claim that their removal to Serbia and the refusal to regularise their residence status had exposed them to a risk to their eldest daughter’s life (Article 2) and to a risk of suffering inhuman and degrading treatment (Article 3).
Article 3 (prohibition of inhuman or degrading treatment):
The Court reiterated that neither the Convention nor its Protocols conferred the right to political asylum and that Contracting States had the right, subject to their international undertakings
including the Convention, to control the entry, residence and expulsion of non-nationals.
Nevertheless, the State’s responsibility could be engaged in relation to asylum seekers’ conditions of reception. The Court observed3 that, in order to determine whether the threshold of severity required under Article 3 was met in a given situation, particular importance should be attached to the person’s status as an asylum seeker and, as such, a member of a particularly underprivileged and vulnerable population group in need of special protection. Asylum seekers’ vulnerability was heightened in the case of families with children, and the requirement of special protection had been even more important in the applicants’ case in view of the presence of small children, including one infant, and of a disabled child.
The Court had to ascertain in this case whether the applicants’ living conditions in Belgium between 26 September and 25 October 2011 engaged the responsibility of the Belgian State under Article 3.
The Court’s review related only to that period, between their eviction from the accommodation centre and their departure for Serbia, since the applicants’ reception and the fulfilment of their
needs prior to that period were not the subject of dispute. Between 26 September and 25 October 2011 their situation had been particularly serious as they had spent nine days on a public
square in Brussels and then, after two nights in a transit centre, a further three weeks in a Brussels train station. The Court noted that this situation could have been avoided or made shorter if the
proceedings brought by the applicants seeking the setting-aside and suspension of the decisions refusing them leave to remain and ordering them to leave the country, which had lasted for two
months, had been conducted more speedily.
However overstretched the reception network for asylum seekers in Belgium may have been at the time of the events5, the Court considered that the Belgian authorities had not given due
consideration to the applicants’ vulnerability and had failed in their obligation not to expose the applicants to conditions of extreme poverty for four weeks, leaving them living on the street,
without funds, with no access to sanitary facilities and no means of meeting their basic needs. The Court found that these living conditions, combined with the lack of any prospect of an improvement
in the applicants’ situation, had attained the level of severity required under Article 3. The applicants had therefore been subjected to degrading treatment, in breach of that provision.
Article 2 (right to life):
The Court noted that, although the Belgian authorities must have been aware that the applicants were living in poverty following their eviction from the centre, and must have known about their
eldest daughter’s medical conditions, the medical certificate had not mentioned the degree of severity of those conditions. It also noted, with regard to the timing of the events, that a number of
factors may have contributed to the child’s death, including having spent several weeks in insalubrious conditions after the family’s return to Serbia. Accordingly, the Court considered that the
applicants had not shown that their eldest daughter’s death had been caused by their living conditions in Belgium, or that the Belgian authorities had failed in their obligation to protect her life.
The Court therefore found no violation of Article 2.
Article 13 (right to an effective remedy) taken in conjunction with Article 3 (prohibition of inhuman or degrading treatment):
On the basis of its analysis of the Belgian system as in force at the time of the events, the Court considered that the applicants had not had an effective remedy available to them, in the sense of
one that had automatic suspensive effect and enabled their allegations of a violation of Article 3 to be examined in a rapid and effective manner.
The order for the applicants to leave the country had been liable to be enforced at any time by the Belgian authorities, and the application to set aside and the request for suspension of the measure lodged by the applicants did not have suspensive effect. The Court observed in particular that the lack of suspensive effect had resulted in the material support granted to the applicants being
withdrawn and had forced them to return to their country of origin without their fears of a possible violation of Article 3 having been examined. The Court also noted that the length of the proceedings concerning the application to set aside had been unsatisfactory, given that the Aliens Appeals Board had not delivered its judgment until 29 November 2011, after the applicants had left for Serbia, thereby effectively depriving them of the opportunity to continue the proceedings in Belgium and France. Accordingly, since the applicants had not had an effective remedy, there had been a violation of Article 13 taken in conjunction with Article 3.
From Court’s press release: http://hudoc.echr.coe.int/webservices/content/pdf/003-5127554-6327501
Strasbourg, 17/02/2015 – “Despite advances in legislation and measures to combat intolerance and racism, discrimination and hate speech not only persist in France but are on the rise. There is an urgent need to combat this in a sustained and systematic manner,” Nils Muižnieks, the Council of Europe Commissioner for Human Rights, said today, publishing the report on his visit to France from 22 to 26 September 2014. In this report, the Commissioner addresses issues of intolerance, racism, and respect for the human rights of migrants, Travellers, Roma and persons with disabilities.
“In recent years, there has been a huge increase in antisemitic, anti-Muslim and homophobic acts. In the first half of 2014 alone, the number of antisemitic acts virtually doubled, while the number of Jews leaving France for Israel tripled compared with 2012, which is a telling indication of their feeling of insecurity. The rising number of anti-Muslim acts, 80% of which are carried out against women, and homophobic acts, which occur once every two days, is also cause for great concern. It is essential to put an end to such acts, including on the Internet, and to punish those responsible.”
The Commissioner welcomes France’s sound legal and institutional framework for combating racism and discrimination and urges the authorities to continue to fight resolutely against these phenomena. “To this end, it would be helpful to give full effect to the criminal law provisions recognising “testing” as evidence of discriminatory conduct and to include the fight against discrimination in a national plan to promote and protect human rights. Ratifying Protocol No. 12 to the European Convention on Human Rights on the general prohibition of discrimination would also help to further strengthen the legal framework.”
The trend towards more stringent and more complex rules in the asylum and immigration field raises serious questions of compatibility with France’s international commitments, particularly with regard to being granted asylum and the reception of asylum seekers. “The serious and chronic inadequacies in the reception of asylum seekers force many of them to live in extremely vulnerable and degrading conditions. Lasting solutions need to be found as a matter of urgency to ensure that everyone has effective access to reception centres and social protection.”
The reception and care of unaccompanied migrant minors highlights a further shortcoming in the French migration system. “There are between 7,000 and 12,000 such children living in France, 3,000 of whom are in Mayotte. Many are left without any social or educational support or medical care and some are even homeless. Their age is often determined following certain highly questionable procedures, especially when these involve bone age tests. It is not uncommon for these children to be deprived of their liberty when they arrive at the border unlawfully. The French authorities must put an end to these practices and provide better reception conditions, including overseas.”
The Commissioner also calls on the French authorities not only to honour their commitment to take in 500 Syrian refugees, but to take in even more and to remove all barriers, such as the obligation to have an airport transit visa, which undermine their chances of being granted asylum. The Commissioner also calls on the authorities to improve the living conditions of migrants in Calais and to afford them greater protection against violent xenophobic attacks.
Commissioner Muižnieks urges France not to adopt or implement legislative or other measures to accelerate asylum procedures still further, until the structural problems in the national asylum authorities have been resolved. He underlines the need to improve the effectiveness of remedies in the asylum and immigration field, by expediting the introduction of suspensive appeals against all decisions taken in these matters, including overseas. In addition, he recommends that the authorities improve the legal aid and procedural guarantees offered to immigrants and asylum seekers and cease the practice of holding hearings by the ‘liberties and detention judges’ in the annexes of regional courts located in the immediate vicinity of administrative detention centres or waiting zones.
High levels of anti-Gypsyism have prevailed in France for a very long time, and the Commissioner calls on the authorities to firmly tackle hostile speech and acts directed at migrant Roma and Travellers, including on the Internet. He recommends that the authorities put an end to the discriminatory system applied to Travellers, provide appropriate camping areas and ensure effective access to education for the children of Travellers by promoting solutions more in keeping with their lifestyle.
Like Travellers, migrant Roma continue to be targeted and stigmatised by hate speech emanating from certain politicians and by sometimes harmful media coverage. They are also the victims of violence perpetrated by individuals and at times even by members of law enforcement agencies, in particular during forced eviction operations. The Commissioner also underlines the urgent need to guarantee Roma access to healthcare, education, housing and employment, and to conduct public awareness-raising activities to combat stereotypes and prejudice against Roma and Travellers.
With regard to the situation of persons with disabilities, the Commissioner notes that despite a well-developed legal framework and the priority given to independence and social inclusion, these are not always guaranteed in practice. “There is an urgent need to rectify a situation which continues, de facto, to perpetuate the social exclusion and marginalisation of persons with disabilities. The serious delays in ensuring that public places are accessible and the shortcomings in the arrangements concerning guidance and support for these persons should be dealt with as a matter of priority.”
The Commissioner is also concerned that thousands of persons with disabilities are obliged to leave France to find more appropriate solutions to their situation abroad, particularly in Belgium. He also condemns difficulties in access to employment and the discriminatory conditions applying to workers with disabilities within certain specialised facilities.
Lastly, while welcoming the measures adopted to promote the education of children with disabilities in mainstream schools, the Commissioner notes with concern that no education solution has yet been found for some 20,000 of these children, and particularly for those with autism spectrum disorder. “The authorities should step up their efforts to ensure that all children receive appropriate education. The authorities should also attach priority to setting up local services promoting the social inclusion of people with disabilities, and improve the support provided to those with autism, in particular by making greater use of educational, behavioural and developmental methods in the care they are given.”
Link to press release & docs: http://bit.ly/1FmkGZ9