NO ESCAPE: - PowerPoint Presentation

Slide1

NO ESCAPE: ASYLUM SEEKING AND STATE TACTICS IN LIGHT OF RECENT INTERNATIONAL DECISIONS

Boldizsár Nagy’s presentation at the

X.

Nemzeti

Ülés és Képzés a Migráció és a Menekültügy Uniós Vonatkozásairól

Budapest, 17 October 2012,Slide2

The gap between the promises and the deedsThe role of international courts in forming the MS’s practice

No escape from responsibility:

The (extended) limits to jurisdiction: Al Skeini v. UKNo escape from the non-refoulement obligation by returning asylum seekers after interception on the high seas: Hirsi Jamaa v. ItalyDublin: not a pretext to escape the obligation to decideMSS v Belgium, C…. NS and ME v UK and IrelandConclusion

Scheme of the talkSlide3

WORDS AND DEEDSTHE GAPSlide4

The message of the Tampere European Council Conclusions (1999)

2. ... The challenge of the Amsterdam Treaty is now to ensure that

freedom, which includes the right to move freely throughout the Union, can be enjoyed in conditions of security and justice accessible to all. ...

3. This freedom

should not, however, be regarded as the exclusive preserve of the Union’s own citizens

. Its very existence acts as a draw to many others world-wide who cannot enjoy the freedom Union citizens take for granted. It would be

in contradiction with Europe’s traditions to deny such freedom

to those whose circumstances lead them

justifiably to seek access

to our territory.

This in turn requires the Union to develop

common policies on asylum and immigration

, while taking into account the need for a consistent

control of external borders to stop illegal immigration

and to combat those who organise it and commit related international crimes….. Slide5

4. The aim is an open and secure European Union, fully committed to the obligations of the

Geneva Refugee Convention and other relevant human rights instruments

, and able to respond to humanitarian needs on the basis of solidarity. A common approach must also be developed to ensure the integration into our societies of those third country nationals who are lawfully resident in the Union. The message of the Tampere

European Council Conclusions (1999)Slide6

THE STOCKHOLM PROGRAM PROGRAM, 2009

The development of a Common Policy on Asylum should be based on a

full and inclusive application of the 1951 Geneva Convention relating to the Status of Refugees and other relevant international treaties.

THE ACTION PLAN IMPLEMENTING THE STOCKHOLM PROGRAMME, 2010 APRIL

…

the

European Union has more than ever the duty to

protect and project our values

and

to

defend our interests

. Respect for the

human person and human dignity

,

freedom,

equality

,

and

solidarity

are our everlasting values at a time of unrelenting societal and technological

change. These values must therefore be at the heart of our

endeavo

urs

.Slide7

A boat carrying 72 passengers, including several women, young children and political refugees, ran into trouble in late March after leaving Tripoli for the Italian island of Lampedusa. Despite alarms being raised with the Italian coastguard and the boat making contact with a military helicopter and a warship, no rescue effort was attempted.

All but 11 of those on board died from thirst and hunger after their vessel was left to drift in open waters for 16 days.

"Every morning we would wake up and find more bodies, which we would leave for 24 hours and then throw overboard," said Abu Kurke, one of only nine survivors. "By the final days, we didn't know ourselves … everyone was either praying, or dying."Guardian, reporting on 8 May 2011

Source_

http://www.guardian.co.uk/world/2011/may/08/nato-ship-libyan-migrants

, visited 9 May 2011

Presentation by Boldizsár NagySlide8

The Berlin Wall 1961 – 1989 and the frontier around Europe

During the Wall's existence there were around 5,000 successful escapes into West Berlin. Varying reports claim that either

192 or 239 people were killed trying to cross and many more injured. http://en.wikipedia.org/wiki/Berlin_Wall visited 25 February 2006

Source

:

http://www.unitedagainstracism.org/pdfs/listofdeaths.pdf

visited

13

September

2012

Presentation by Boldizsár NagySlide9

THE ROLE OF THE COURTSSlide10

European Court of Human RightEuropean Convention on Human Rights, Preamble

„Being resolved, as the governments of European countries which are like-minded and have a common heritage of political traditions, ideals, freedom and the rule of law, to take the first steps for the collective enforcement of certain of the rights stated in the Universal Declaration”

- common values („like minded”) - an imagined common political tradition (in fact working on it) - giving teeth (enforcement) - creating a shared judicial space of HRCourt of Justice of the EUFull entitlement to adjudicate asylum and migration cases„Monopoly” of (final) interpretation of union law – decisions binding and to be followed not only in the affected stateSource of innovation by stretching the law

__________________________________________________________

Both courts are instruments counteracting „The political,” the shortsighted forces willing to sacrifice values for short term gain (political and economic)

The role of the international courts Slide11

FOUR LANDMARK DECISIONSSlide12

CASE OF AL-SKEINI AND OTHERS v. THE UNITED KINGDOM(Application no. 55721/07) JUDGMENTSTRASBOURG

7 July 2011Slide13

FactsSix Iraqi nationals, all civilians, die in the period of 1 May 2003 to 28 June 2004 when the United Kingdom qualifies as „occupying power”British soldiers are involved in various ways (directly shooting them, being engaged in a fire exchange leading to civilian’s death, throwing one young man into the river, beating leading to death in British custody)

On 26 March 2004, the Secretary of State for Defence decided, in connection with the deaths (1) not to conduct independent inquiries into the deaths; (2) not to accept liability for the deaths; (3) not to pay just satisfaction.

British courts find that there was no jurisdiction (except in the case of the person held at the prison)CASE OF AL-SKEINI AND OTHERS v. THE UNITED KINGDOMSlide14

ECtHR applicants claim: Violation of Article 2 (right to life) by way of not investigating appropriately the cases (except in the prison-death case)

Government: the Court has no jurisdiction as the victims were not within UK jurisdiction (except the prison-death case, where appropriate compensation had been paid – no longer victim status)

The jurisdiction debateECHR, Art. 1.: “The High Contracting Parties shall secure to everyone within their jurisdiction the rights and freedoms defined in Section I of [the] Convention.”The

government

’s argument: merely being affected by a Contracting state’s act does not create jurisdiction

Banković and Others v. Belgium and Others, 2001

Jurisdiction is essentially territorial , limited to the Contracting States’ territory („The Convention’s legal space”)

exceptions (extraterritorial jurisdiction) to be interpreted narrowly

Northern Cyprus, Transdniestria: parts of contracting states where another contracting state exercised effective control as a consequence of military action

UK was not exercising effective control in Iraq

Being an occupying power does not necessarily mean effective control

CASE OF AL-SKEINI AND OTHERS v. THE UNITED KINGDOMSlide15

The applicants:Two main arguments „State agent authority” - authorised agents of the State not only remain under its jurisdiction when abroad but bring any other persons or property 'within the jurisdiction' of that State, to the extent that they exercise authority over such persons or property.

„effective control of an area” - occupying power has effective control (1907 Hague regulations

ICJ in the Wall in the Occupied Palestinian territory opinion: the occupying power must apply international human rights law.CASE OF AL-SKEINI AND OTHERS v. THE UNITED KINGDOMSlide16

The Court:As to the state agent doctrine:

§136 „… The Court does not consider that jurisdiction in the [reviewed] cases arose solely from the control exercised by the Contracting State over the buildings, aircraft or ship in which the individuals were held.

What is decisive in such cases is the exercise of physical power and control over the person in question.137. It is clear that, whenever the State through its agents exercises control and authority over an individual, and thus jurisdiction, the state is under an obligation under Article 1 to secure to that individual

the rights and freedoms

under Section 1 of the Convention

that are relevant

to the situation of that individual. In this sense, therefore, the Convention rights can be “

divided and tailored

”.

CASE OF AL-SKEINI AND OTHERS v. THE UNITED KINGDOMSlide17

The Court:As to the

effective control

doctrine:Extraterritorial jurisdiction is established „when, as a con-sequence of lawful or unlawful military action, a Contracting State exercises effective control of an area outside [the] national territory. The obligation to secure, in such an area, the rights and freedoms set out in the Convention, derives from the fact of such control, whether it be exercised directly, through the Contracting State's own armed forces,

or through a subordinate local administration”

(§ 138)

§ 138 „

detailed control

” over the subordinate local administration is

not required

, the „fact that the local administration

survives

as a result of the Contracting State's

military and other support

entails that State's responsibility”

§ 142 Jurisdiction can exist outside the Convention’s juridical space (

espace juridique)

§ 149 „United Kingdom (together with the United States) assumed in Iraq the exercise of some of the public powers normally to be exercised by a sovereign government. In particular, the United Kingdom assumed authority and responsibility for the maintenance of security. … .

the United Kingdom

, through its soldiers engaged in security operations in Basrah during the period in question,

exercised authority and control over individuals killed

in the course of such security operations,

so as to establish a jurisdictional link

between the deceased and the United Kingdom for the purposes of Article 1 of the Convention.

CASE OF AL-SKEINI AND OTHERS v. THE UNITED KINGDOMSlide18

Hirsi Jamaa and others v. ItalyAppl. No. 27765/09

Grand Chamber judgment of 23 February 2

012Slide19

Hirsi Jamaa and others v. ItalyAppl. No. 27765/09

Grand Chamber judgment of 23 February 2012

FactsEleven Somali nationals and thirteen Eritrean nationals left Libya aboard vessels with the aim of reaching the Italian coast.

On

6 May 2009

, when the vessels were 35 nautical miles south of Lampedusa (Agrigento) they were

intercepted by ships from the Italian Revenue Police

and were

transferred onto Italian military ships and returned to Tripoli

. The applicants alleged that during that voyage the Italian authorities did not inform them of their real destination and took no steps to identify them.

On arrival in the Port of Tripoli, following a ten-hour voyage, the migrants were handed over to the Libyan authorities. According to the applicants’ version of events, they objected to being handed over to the Libyan authorities but were

forced to leave the Italian ships.

The Italian Minister of the Interior stated that the operation to intercept the vessels on the high seas and to

push the migrants back to Libya

was the consequence of the entry into force on 4 February 2009 of

bilateral agreements concluded with Libya

,

Between

6 and 10 May

2009,

more than 471 irregular migrants had been intercepted

on the high seas and transferred to Libya

Presentation by Boldizsár NagySlide20

Hirsi Jamaa and others v. ItalyAppl. No. 27765/09

Grand Chamber judgment of 23 February 2012

Legal issues Jurisdiction Art. 3 treatmentJurisdictionApplicants’ claim

Boarding the Italian vessels put them under the exclusive jurisdiction of Italy. According to Italian law vessels flying the flag of Italy fall within Italian jurisdiction

The government’s claim

Italy denied that it had exercised “absolute and exclusive control” over the applicants.

The operation was a „rescue on the high seas of persons in distress” and not a maritime police operation. The rescue in itself did not create jurisdiction over the saved persons.

As regards the applicants’ “rescue”, which in total had lasted no more than ten hours, the authorities had provided the parties concerned with the necessary humanitarian and medical assistance and had in no circumstances used violence; they had not boarded the boats of the immigrants and had not used weapons.

Third party interveners

(UNHCR HRW, AI, Aire centre and others together) Decisive is if under the authority and effective control of the state (not territory)

Presentation by Boldizsár NagySlide21

Hirsi Jamaa and others v. ItalyAppl. No. 27765/09

Grand Chamber judgment of 23 February 2012

The CourtGeneral principles governing jurisdictionRights and freedoms to be „secured” to everyone „within their jurisdiction”Jurisdiction is essentially

territorial

- but there are

exceptions

Lawful or unlawful military action

Loizidou

(but not if ”only an instantaneous extra-territorial act is at issue” (

Banković) )

Whether

exceptional circumstances

exist leading to extra-territorial jurisdiction must be determined with reference to the particular facts, for example

full and exclusive control over a prison or a ship

State agents operating outside the state’s territory but exercising

„control and authority over an individual „ = jurisdiction

= an obligation to secure those right which are „relevant to the situation”

In this sense

Convention rights can be divided and tailored

Application to the case

The events at issue occurred on the

high seas

, on board

military ships flying the Italian flag

- even Italy admits that

the ships were within Italian jurisdiction

– that means exclusive jurisdiction of the flag state.

The case was

not

an example of

extra-territorial

exercise of jurisdiction

Italy

cannot circumvent its “jurisdiction”

under the Convention by describing the events at issue

as rescue operation

That the control exercised was allegedly

minimal does not matter

either

Between boarding the ships of the Italian armed forces and being handed over to the Libyan authorities, the applicants were under the continuous and exclusive

de jure

and

de facto

control of the Italian authorities. … Accordingly,

the events giving rise to the alleged violations fall within Italy’s “jurisdiction” within the meaning of Article 1 of the Convention

.

Presentation by Boldizsár NagySlide22

Hirsi Jamaa and others v. ItalyAppl. No. 27765/09

Grand Chamber judgment of 23 February 2012

Article 3 issuesTwo claims of breaching art 3: - Treatment in Libya - Potential refoulement to Eritrea and SomaliaTreatment in LibyaApplicants (and third party interveners) : inhuman and degrading conditions in which irregular migrants, notably of Somali and Eritrean origin, were held in Libya and the precarious living conditions experienced by clandestine migrants in that country. Torture, physical violence, rape was widespread. Libya never granted any formal status to those whom UNHCR recognised in Libya as refugees

Government:

Could not sufficiently prove past treatment contrary to art 3.

EU encouraged migration co-operation between Mediterranean countries

As this was a rescue operation Italy was under no duty to identify potential refugees

The applicants resistance to be handed over to Libyan authorities could not be interpreted as a request for asylum

Libya was a safe host country (sic-BN) Although not a party to the 1951 Geneva Convention. It authorised UNHCR and IOM to operate in Tripoli

UNHCR could recognise refugees in Tripoli – another proof that return to Libya did not entail danger

Presentation by Boldizsár NagySlide23

Hirsi Jamaa and others v. ItalyAppl. No. 27765/09

Grand Chamber judgment of 23 February 2012

The CourtGeneral principlesStates control – subject to „their treaty obligations” – the entry, the residence and the expulsion of „aliens”. There is no right to asylum in the ConventionIf the person to be removed faces a

real risk of being subjected to treatment contrary to Article 3

in the receiving country then states are

obliged not to expel

the individual to that country

As the proscribed ill treatment would be the „direct consequence” of expulsion the

Court must assess the situation

in the receiving country (not party to the Convention)

Assessment is based on material presented to it and on the basis of „material obtained

proprio motu

”

The Court must examine the

foreseeable consequences

of the removal in the light of

the general situation

there as well as the affected individual’s

personal circumstances

Presentation by Boldizsár NagySlide24

Hirsi Jamaa and others v. ItalyAppl. No. 27765/09

Grand Chamber judgment of 23 February 2012

Court, general principles (continued)Where an applicant alleges that a group is systematically exposed to a practice of ill-treatment, then Art. 3 applies when „there are substantial grounds for believing in the existence of the practice”

in question

and his

or her

membership of the group

concerned

Article 3 rights are absolute

Danger of its violation may stem from

non state agents

(„persons who are not public officials”) – then „ it must be shown that the

risk is real

and that the

authorities

of the receiving State

are not able to obviate the risk

by providing appropriate protection.”

Decisive moment: the time of removal - risk = facts known or „ought to have been known” to the Contracting State (diligence standard!)

Application to the case

Difficulties of states forming the external border

acknowledged, but that

can not absolve

the states of their obligations under

Art 3 as they are absolute obligations

Libya

did not comply with the rules on protecting refugees

. Asylum seekers and other irregular migrants were not distinguished

Presentation by Boldizsár NagySlide25

Hirsi Jamaa and others v. ItalyAppl. No. 27765/09

Grand Chamber judgment of 23 February 2012

Court, Application to the case (continued)Torture, poor hygiene lack of appropriate medical care and refoulement were reportedThe existence of domestic laws and international treaty obligations are not sufficient to ensure adequate protection where reliable sources have reported practices manifestly contrary to the principles of the Convention

Italy

can not evade its responsibility

by relying on its

obligations arising out of bilateral agreements

with Libya

UNHCR’s activity in Tripoli did not lead to any safety of the recognised persons

Italian authorities

knew or should have known

that, as irregular migrants, they

would be exposed in Libya to treatment in breach

of the Convention

The national authorities have to find out what expects the returnees – it is immaterial whether they have applied for asylum or not.

Neither recue at sea nor fight against illegal migration justify refoulement

The Vice president of the Commission of the EU expressly warned against refoulement in the context of operations at high sea

The fact that

many were threatened

with ill treatment in

Libya „does not make the risk any less individual”

Presentation by Boldizsár NagySlide26

Hirsi Jamaa and others v. ItalyAppl. No. 27765/09

Grand Chamber judgment of 23 February 2012

Potential refoulement to Eritrea and SomaliaApplicants and third party interveners: Breach of article 3 threatens in Eritrea and Somalia – many of them recognised as refugees by UNHCRLibya frequently conducted collective expulsions

Government:

According to their bilateral treaty Libya was bound by the principles of the UN Charter and the universal Declaration of Human Rights

UNHCR could recognise refugees and they were not „arbitrarily expelled”

The Court:

Indirect removal

of an alien

leaves the responsibility

of the Contracting State

intact,

and that State is required…to

ensure

that the person in question

would not face a real risk of being subjected to treatment contrary to Article

3 in the event of repatriation

The returning state must ensure that the intermediary state „offers sufficient guarantees” against refoulement

Individuals forcibly repatriated to Eritrea face being tortured and detained in inhuman conditions merely for having left the country irregularly.

Presentation by Boldizsár NagySlide27

THE DUBLIN SYSTEM - CONTEXT OF THE NEXT TWO JUDGMENTSSlide28

Every asylum seeker

should gain access

to the procedure. There must be a MS to determine the caseOnly one procedure should be conducted within the Union. A decision by any MS be taken in the name of others = no parallel or subsequent application should take placePurpose and philosophy of DublinSlide29

The philosophy of Dublin: under what conditions is taking charge by another state –without investigation of the merits in the first state fair

If the substantive law (the refugee definition) is identical

If procedural rules guarantee equal level of protection at least in terms of legal remedies (appeals) access to legal representationphysical conditions (support) during the procedureSlide30

The Dublin system as seen by the CJEU

(

NS and ME, para 79)Secondary aims

NOT BURDEN SHARING !

Based on mutual confidence

of

MSSlide31

 CASE OF M.S.S. v. BELGIUM AND GREECE (Application no. 30696/09)   

GRAND CHAMBER JUDGMENT

STRASBOURG 21 January 2011Slide32

Facts:The applicant is M.S.S. is an Afghan man, who worked as an interpreter in Afghanistan and chose Belgium as the destination country because of his contacts with Belgian troops in Kabul

He travelled through Iran, Turkey Greece and France. He was caught in Greece in December 2008 but did not apply for asylum. On 10 February 2009 he arrived in Belgium, presented himself to the Aliens office and applied for asylum.

Feared persecution: reprisal by the Taliban for his having worked as an interpreter for the international air force troops stationed in Kabul. He produced certificates confirming that he had worked as an interpreter.Belgian authorities denied appeal against transfer, ECtHR did not grant Rule 39 relief (provisional measure to halt transfer)15 June 2009: M.S.S. was returned to Greece which was obliged to take charge (as it had remained silent for two months)M.S.S v. Belgium and Greece – main pointsSlide33

Facts continued15-18 June 2009 detention of M.S.S. in Greece under harsh conditions

§34: „locked up in a small space with 20 other detainees, had access to the toilets only at the discretion of the guards, was not allowed out into the open air, was given very little to eat and had to sleep on a dirty mattress or on the bare floor.”

After living in the park (and not reporting to the police) on 1 August 2009: attempt to leave Greece with a false Bulgarian passport second detention, expulsion order, later revoked due to the pending asylum procedure. The applicant contacted the police, had his residence card renewed twice for 6 months, but no accommodation was provided to him.August 2010: another attempt to leave Greece, towards Italy – caught again, almost expelled to TurkeyHis family back in Afghanistan, strongly advised him not to go home because the insecurity and the threat of reprisals had grown steadily worseThe case was pending in the Court since 11 June 2009

Facts as to Greece:

88 % of illegal arrivals into Europe through Greece (in 2009)

Recognition rates 0,04 % Convention status, 0,06 Subsidiary protection =

1 out of 10 000 at first instance

Appeal: 25 Convention status and 11 subsid prot out of 12 905

M.S.S v. Belgium and Greece – main pointsSlide34

M. S. S. – the applicant’s claimsA) Both periods of detention amounted to inhuman and degrading treatment.

B) The state of extreme poverty in which he had lived since he arrived in Greece amounted to inhuman and degrading treatment

C) He had no effective remedy concerning the above claimsThe issue of the detention (A)The GovernmentThe rooms were suitable equipped for a short stay + (in August 2009) on 110 m2 there were 9 rooms and two toilets +public phone and water fountainThe Court

General principles

to be applied (as to detention) – the meaning of Article 3.

„confinement of aliens, .. is acceptable only in order to enable States to prevent unlawful immigration while complying …. the 1951 Geneva Convention …. and the European Convention on Human Rights.” (§ 216)

„

Article 3

of the Convention, … enshrines one of the most fundamental values of democratic societies and

prohibits in absolute terms

torture and inhuman or degrading treatment or punishment irrespective of the circumstances and of the victim's conduct”

(§218)

M.S.S v. Belgium and Greece – Claims against GreeceSlide35

Ill treatment „must attain a certain level of severity”

Severity is relative: duration, physical, mental effects, and sex, gender and age of the victim matter as well as his/her state of health (§ 219)

Inhuman treatment = when it was “premeditated, was applied for hours at a stretch and caused either actual bodily injury or intense physical or mental suffering” (§ 220)„Treatment is considered to be “degrading” when it 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”. (ibid) „It may suffice that the victim is humiliated in his or her own eyes, even if not in the eyes of others.” The purpose f the treatment need not be humiliation.

M.S.S v. Belgium and Greece – Claims against GreeceSlide36

„Article 3 of the Convention requires the State to ensure that detention conditions are compatible with respect for human dignity

, that the manner and method of the execution of the measure

do not subject the detainees to distress or hardship of an intensity exceeding the unavoidable level of suffering inherent in detention and that, given the practical demands of imprisonment, their health and well-being are adequately secured” (§ 221)Application of the principle to the present case – the Court’s dictumThe Court acknowledges the increased hardship of external border states because of Dublin, but Art. 3 is absoluteAfter return to Greece the authorities new, that M.S.S. did not „have the profile of an ‘illegal migrant’”145 persons on 110 m2

usually locked up, without hygienic tools

+ the asylum seeker especially vulnerable -->

„taken together,

the feeling of arbitrariness

and the

feeling of inferiority

and

anxiety

often associated with it, as well as the profound

effect such conditions of detention

indubitably have on a person's dignity

,

constitute degrading treatment

contrary to Article 3 of the Convention.

In addition,

the applicant's distress was accentuated

by the vulnerability

inherent in his situation as an

asylum seeker.”

(§ 233)

VIOLATION of Article 3 held UNANIMOUSLY

M.S.S v. Belgium and Greece – Claims against GreeceSlide37

The issue of the living (reception) conditions during the procedure (B)The government

The applicant has not visited the police station as advised.

After December 2009 when he showed up, efforts were made to find an accommodation bit M.S.S. had no address where to inform him. Homelessness is widespread in States, parties to the ECHR – it is not contrary to the Convention.The CourtGeneral principles: as above +There is no duty under Article 3 to provide home or financial assistance.Application to the present case

The reception conditions directive binds Greece

Asylum seekers constitute a special group in need of special protection

The reception capacity of Greece is clearly inadequate,

„an adult male asylum seeker has virtually no chance of getting a place in a reception centre”(§ 258) none of the Dublin returnees between February and April 2010 got one.

The authorities have not informed M.S.S. of the available accommodation even when they saw him in June 2010

There was no realistic access to the job market due to administrative riddles

M.S.S v. Belgium and Greece – Claims against GreeceSlide38

.  ”..the Court considers that the Greek authorities have not had due regard to the applicant's vulnerability as an asylum seeker

and must be held

responsible, because of their inaction, for the situation in which he has found himself for several months, living in the street, with no resources or access to sanitary facilities, and without any means of providing for his essential needs. The Court considers that the applicant has been the victim of humiliating treatment showing a lack of respect for his dignity and that this situation has, without doubt, aroused in him feelings of fear, anguish or inferiority capable of inducing desperation. It considers that such living conditions, combined with the

prolonged uncertainty

in which he has remained and t

he total lack of any prospects of his situation improving

, have

attained the level of severity

required to fall within the scope of Article 3 of the Convention.” (§ 263)

= VIOLATION OF ARTICLE 3. HELD 16 : 1

M.S.S v. Belgium and Greece – Claims against GreeceSlide39

The issue of effective remedies with respect to Articles 2 and 3 - claim (C)(Only protected from refoulement because of ECtHR interim measure, no serious examination of the merits of the asylum claim. The appeal to the Supreme Court would not have suspensive effect, practically nobody is recognised by the Greek authorities)

The Government

The applicant failed to cooperate, assumed different identities (when trying to leave Greece), had access to interpreter.The review by the Supreme Court is effective remedy, Asylum seekers were not entitled to a right to appeal under the ECHR and Article 6 (Right to a fair hearing) of the Convention did not apply to asylum cases, No danger to transfer to Turkey as the readmission agreement with Turkey does not cover returnees from other EU MS.

The applicant did not appear at the hearing planned for 2 July = did not exhaust local remedies

M.S.S v. Belgium and Greece – Claims against GreeceSlide40

The CourtGeneral principles

The remedy must be linked to a Convention right and must

deal with the substance of an arguable complaintIt must be available in law and in practiceIt must grant appropriate relief and must not be of excessive duration

„In view of the importance which the Court attaches to Article 3 of the Convention and the irreversible nature of the damage which may result if the risk of torture or ill-treatment materialises, the effectiveness of a remedy within the meaning of Article 13 imperatively requires …,

independent and rigorous scrutiny

of any claim that there exist substantial grounds for fearing a real risk of treatment contrary to Article 3 .., as well as a particularly

prompt response

In cases of Article 3 threat the remedy must have

automatic suspensive effect

M.S.S v. Belgium and Greece – Claims against GreeceSlide41

Application to the present caseThe gravity of the situation in Afghanistan and the risks that exist there are not disputed by the parties - arguable claim

(but the Court does not rule on the possible consequences of return only on whether there was an effective remedy against removal within Greece) (§§ 296 – 298)M.S.S. had not enough information and his non-appearance is the result of lack of reliable communication.Uncertainty about the hearing on 2 July – perhaps only told in Greek.„The Court is not convinced by the Greek Government's explanations concerning the policy of returns to Afghanistan

organised on a voluntary basis

. It cannot ignore the fact that forced returns by Greece to high-risk countries have regularly been denounced by the third-party interveners and several of the reports consulted by the Court” (314)

His efforts to escape from Greece can not be held against him as he tried to escape Art 3 treatment.

Conclusion: violation of Art 13 in conjunction with Article 3: „…because of the

deficiencies in the

Greek authorities'

examination of the applicant's asylum request

and the

risk h

e faces

of being returned directly or indirectly

to his country of origin

without any serious examination of the merits

of his asylum application and

without having access to an effective remedy.

VIOLATION of Article 13 in conjunction with Article 3 held UNANIMOUSLY

M.S.S v. Belgium and Greece – Claims against GreeceSlide42

M. S. S. – the applicantSending him by Belgium to Greece exposes him to the risk of violating Article 2 and 3 by way of refoulement

The application of the Dublin Regulation did not dispense the Belgian authorities from verifying whether sufficient guarantees against

refoulement existed in Greece (and they were insufficient)BelgiumWhen needed Belgium applied the sovereignty clause (§3 (2) ) of the Dublin regulationM.S.S did not complain about Greece, nor had he told that he had abandoned an asylum claim in GreeceGreece assured that it would investigate the merits of the case

In the

K.R.S v. UK

case Greece gave assurances that no refoulement would occur

M.S.S v. Belgium and Greece – Claims against BelgiumSlide43

IntervenersThe Netherlands: „It was for the Commission and the Greek authorities, with the logistical support of the other Member States, and not for the Court, to work towards bringing the Greek system into line with Community standards.”(§ 330)

„In keeping with the Court's decision in

K.R.S. (cited above), it was to be assumed that Greece would honour its international obligations and that transferees would be able to appeal to the domestic courts and subsequently, if necessary, to the Court. To reason otherwise would be tantamount to denying the principle of inter-State confidence on which the Dublin system was based…” (§ 330) UK: Dublin is to speed up the process – calling to account under § 3 ECHR would slow it downUNHCR:

each Contracting State remained responsible

under the Convention for not exposing people to treatment contrary to Article 3 through the automatic application of the Dublin system.

AIRE Center and AI: transferring to a state violating Art 3 entails the responsibility of the transferring state

M.S.S v. Belgium and Greece – Claims against BelgiumSlide44

The CourtDifference from the Bosphorus case: there sovereign powers were transferred to an organsiation which entailed protection of fundamental rights equivalent with the Convention protection. (Namely the EU legal order and the CJEU) and the state was obliged to act.

Here Belgium could refrain from the transfer so it was not an international obligation (§ 340)

Lessons from T.I and K.R.S.: „When they apply the Dublin Regulation, … the States must make sure that the intermediary country's asylum procedure affords sufficient guarantees to avoid an asylum seeker being removed, directly or indirectly, to his country of origin without any evaluation of the risks he faces from the standpoint of Article 3 of the Convention.”„the Court rejected the argument that the fact that Germany was a party to the Convention absolved the United Kingdom from verifying the fate that awaited an asylum seeker” (ibid)



rejection was based on the fact that Germany had an adequate asylum procedure

.

In K.R.S the Court

could assume that Greece was complying

with the reception conditions directive and the asylum procedures directive , nor was a danger that a rule 39 intervention by the Court would not be observed.

M.S.S v. Belgium and Greece – Claims against BelgiumSlide45

The Court had to consider whether the Belgian authorities ought to have regarded as rebutted the presumption that the Greek authorities would respect their international obligations.The situation changed since December 2008 (K.R.S v UK decision)

more and more reports about the conditions in Greece

UNHCR’s letter to Belgium to suspend transfersCommissions proposal for Dublin recast – entailing a rule on suspension of transfersThe Belgian Aliens Office Regulation left no possibility for the applicant to state the reasons militating against his transfer to GreeceAdequate protection: existence of domestic laws and accession to treaties not enough when reliable sources report contrary practicesGuarantee by the Greek Government was too general, not about the person„the Court deems that its analysis of the obstacles facing asylum seekers in Greece clearly shows that applications lodged there at this point in time are illusory” (§ 357)

M.S.S v. Belgium and Greece – Claims against BelgiumSlide46

The Courts conclusion on the application of DublinThe „Court considers that at the time of the applicant's expulsion the Belgian authorities knew or ought to have known that he had no guarantee that his asylum application would be seriously examined

by the Greek authorities. They also had the means of refusing to transfer him.” (§ 358)

„…it was in fact up to the Belgian authorities, …to first verify how the Greek authorities applied their legislation on asylum in practice. Had they done this, they would have seen that the risks the applicant faced

were real and individual enough to fall within the scope of Article 3

. The fact that a

large number

of asylum seekers in Greece find themselves in the same situation as the applicant

does not make the risk concerned any less individual

where it is sufficiently real and probable.” (§ 359)

VIOLATION OF ARTICLE 3. by the transfer and exposing him to the deficiencies of the asylum procedure (threat of refoulement)

HELD 16 : 1

VIOLATION OF ARTICLE 3. by returning him to the Greek the detention and living conditions

HELD 15 : 2

M.S.S v. Belgium and Greece – Claims against BelgiumSlide47

N. S. (C‑411/10) v Secretary of State for the Home Department (UK) and

M. E. and others (C

‑493/10) v Refugee Applications Commissioner, Minister for Justice, Equality and Law Reform, (Ireland) CJEU judgment, 21 December 2011Slide48

N. S. (C‑411/10) v Secretary of State for the Home Department (UK) and M. E. and others (C

‑

493/10) v Refugee Applications Commissioner, Minister for Justice, Equality and Law Reform, (Ireland) CJEU judgment, 21 December 2011Importance of the case: The Commission, UNHCR, Amnesty International (+other NGOs) and Austria, Belgium, the Czech Republic, Finland, Germany, Greece, France, Italy, The Netherlands, Poland, Slovenia and Switzerland submitted observations.FactsC-411/10NS Afghan national arrested in Greece, Sept, 2008 - does not apply for asylum - order to leave – later expelled to Turkey (2 month in prison there) – 12 January arrival in

UK

– Request to Greece to take charge – silence- 18 June Greece deemed to have accepted responsibility – 30 July removal order without an appeal with suspensive effect as Greece „safe” according to the 2004 British Act on Asylum – NS seeks judicial review – granted – March 2010 High Court dismisses application but allows further appeal –Court of Appeal raises preliminary questions to the Court of the European Union

N.S. and M.E (UK and Ireland) CJEU preliminary judgment C 411/10 and C-493/10 joined casesSlide49

Facts continuedC-493/10Five unconnected individuals from Afghanistan, Iran and Algeria – none apply for asylum in Greece – application in Ireland –Eurodac shows hit – no argument based on Art 3 ECHR – resistance to return based on claim that reception conditions and the asylum procedures in Greece are inadequate

Questions, as grouped by the Court

A ) Does a decision adopted by a Member State to apply the „sovereignty clause” (Article 3(2) of The Dublin II regulation /343/2003/) fall within the scope of European Union law for the purposes of Article 6 TEU and/or Article 51 of the Charter.

N.S. and M.E (UK and Ireland) CJEU preliminary judgment C 411/10 and C-493/10 joined casesSlide50

B) Whether the transferring Member State Ba) is obliged to assess

the

compliance of the other Member State, with EU law Bb) may operate on the basis of a conclusive presumption that the responsible State will observe the claimant’s fundamental rights and the minimum standards imposed by the directives Bc) may maintain a provision of national law which requires a court to treat the responsible Member State as a ‘safe country’

as compatible with the rights set out in Article 47 of the Charter.

Bd) is obliged to accept responsibility (

must apply the sovereignty clause)

if the responsible state is found not to be in compliance with fundamental rights

C) Is the extent of

protection

offered

by the Charter

articles 1 (human dignity), 18 8Right to asylum), 47 (effective remedy)

wider than

that of

Art 3

of the ECHR?

D) Whether

Protocol 30

to the Treaties on the application of the Charter to the UK (and Poland)

qualifies the answers

on the duty to assess the destination country’s circumstances and the on the applicability of the safe country presumption

N.S. and M.E (UK and Ireland) CJEU preliminary judgment C 411/10 and C-493/10 joined casesSlide51

Ad A) Exercising discretion – still within the Dublin system („becoming responsible”) – part of CEAS – applying EU law – Charter is applicable (51 (1)).

Ad B) Combined answers:

„The Common European Asylum System is based on the full and inclusive application of the Geneva Convention and the guarantee that nobody will be sent back to a place where they again risk being persecuted.” (§ 75) secondary rules must be interpreted as not in being conflict with fundamental rights the Dublin system is based on mutual confidence, it must be assumed that asylum seekers are treated according to the Charter, GC51 and ECHR – that is the raison d’être of creating the CEAS slight infringements do not prevent transfer by contrast systemic flaws in the procedure or in reception conditions do (see next slide!)

N.S. and M.E (UK and Ireland) CJEU preliminary judgment C 411/10 and C-493/10 joined casesSlide52

„if there are substantial grounds for believing

that there are

systemic flaws in the asylum procedure and reception conditions for asylum applicants in the Member State responsible, resulting in inhuman or degrading treatment, within the meaning of Article 4 of the Charter, of asylum seekers transferred

to the territory of that Member State,

the transfer would be incompatible

with that provision” (§ 86)

in Greece there are systemic deficiencies in procedure and reception conditions as acknowledged in the M

.S.S.

v.

Belgium and Greece

judgment of the ECtHR

states

must assess

the situation in other member states based

on available reports and judgments

„ Member States,

… [must] not transfer

an asylum seeker to the ‘Member State responsible’ …. where they

cannot be unaware

that

systemic deficiencies in the

asylum

procedure

and in the

reception conditions

of asylum seekers in that Member State amount to substantial grounds for believing that the asylum seeker would face

a real risk of being subjected to inhuman or degrading treatment

within the meaning of Article 4 of the Charter. „ (§ 94)

N.S. and M.E (UK and Ireland) CJEU preliminary judgment C 411/10 and C-493/10 joined cases

Answer

to Ba

Answer

to Bd

First

part

Answer

to Bd

First

part (con-

tinued)Slide53

if no transfer is possible he MS must examine further (possible) criteria for transfer but: no unreasonable delay in transferring

an

application of the Dublin II regulation on the basis of the conclusive presumption that the asylum seeker’s fundamental rights will be observed in the responsible Member State is incompatible with the duty of the Member States to interpret and apply the Dublin II

regulation in a manner

consistent with fundamental rights.

Safety

of a country must be a

rebuttable presumption

! (§ 104)

If criteria do not lead

to finding another state responsible

or

if transfer would entail

unreasonable delay

the „Member

State must itself examine

the application in accordance with the procedure laid down in

Article 3(2)

of” the Dublin II Regulation.

N.S. and M.E (UK and Ireland) CJEU preliminary judgment C 411/10 and C-493/10 joined cases

Answer

to Bb

Answer

to Bc

Answer

to Bd

second

partSlide54

Ad C) The Court in an obscure response states that (in light of the MSS judgment of the ECtHR) if systemic deficiencies in the procedure and in the reception conditions exist, then the Charter provisions „do not lead to a different answer” than given in the preceding paragraphs

Ad D) The Charter applies to the UK, just it blocks the extension of the already existing powers of the courts.

It does not qualify the essence of this judgmentN.S. and M.E (UK and Ireland) CJEU preliminary judgment C 411/10 and C-493/10 joined casesSlide55

Territorial limits are not decisive in determining whether a state is responsible for actions of its organs/staff/officials (

all four judgments

)If those persons state authority or effective control over the foreigner - on another state’s territory (Al Skeini) - on the high seas (Hirsi Jamaa) the state may still be responsible for violations of human rights including refoulementActs of other states may also lead to the transferring state’s responsibility if the state could not be unaware of what expects the transferred (removed) person there (

MSS, NS and ME

)

No conclusive presumption of safety of any state may be applied (

NS and ME

)

The principle of mutual confidence (and of mutual recognition) within the EU is subordinate to the obligation to observe fundamental rights – individual assessment is required (

NS and ME

)

Inadequate procedures and reception conditions may amount to inhuman and degrading treatment. (

MSS, NS and ME

)

In sum

A state may not escape its moral and legal responsibility by acting outside its territory or relying on (unfounded) presumptions about other states’ respect for fundamental rights

These findings led a number of foreign decision makers to withhold transfer to Hungary due to procedural deficiencies and reception conditions

General conclusion – with relevance to HungarySlide56

THANKS!

E-mail:

nagyboldi[the usual symbol here]ajk.elte.hu www.nagyboldizsar.hu CEU International Relations and European Studies Department Budapest, 1051Nádor u. 9.

and

Eötvös Loránd University

International Law Department

Budapest 1053

Egyetem

tér 1-3.

Phone: +36 1 24246313

Presentation by Boldizsár Nagy