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Voting rights of Greek expatriates

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.

N. Sitaropoulos

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Detention in UK of asylum seeker with mental health problems led to violation of ECHR

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

 

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

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Forced Migration Forum

Commentary, discussion and debate for scholars, practitioners in the field, and policy-makers

Rights!

A free, open platform to read, write, share, discuss and act on human rights and democratisation

Human Rights centre blog

University of Essex

Völkerrechtsblog

Der Blog des Arbeitskreises junger Völkerrechtswissenschaftler*innen

blogdroiteuropéen

blogguer différemment sur le droit européen

All for National Archaeological Museum Athens

The official blog of the museum with snapshots from its daily life

East Ethnia

Balkan politics and academics

Inforrm's Blog

The International Forum for Responsible Media Blog

ΣΥΓΧΡΟΝΑ ΘΕΜΑΤΑ

Τριμηνιαία Έκδοση Επιστημονικού Προβληματισμού και Παιδείας

UK Constitutional Law Association

affiliated to the International Association of Constitutional Law

European Western Balkans

The most influential portal on European integration in the Western Balkans

LancsLaw

The official blog of Lancaster University Law School

A Gael in Greece

... news, history and much more ...