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FIFTH
SECTION
CASE OF
DIALLO v. THE CZECH REPUBLIC
(Application
no. 20493/07)
JUDGMENT
(Merits)
STRASBOURG
23 June
2011
This
judgment will become final in the circumstances set out in Article 44
§ 2 of the Convention. It may be subject to editorial
revision.
In the case of Diallo v. the Czech Republic,
The
European Court of Human Rights (Fifth Section), sitting as a Chamber
composed of:
Dean
Spielmann,
President,
Karel
Jungwiert,
Boštjan
M. Zupančič,
Mark
Villiger,
Isabelle
Berro-Lefèvre,
Ann
Power,
Angelika
Nußberger,
judges,
and
Claudia Westerdiek,
Section Registrar,
Having
deliberated in private on 31 May 2011,
Delivers
the following judgment, which was adopted on the last mentioned
date:
PROCEDURE
- The
case originated in an application (no. 20493/07) against the Czech
Republic lodged with the Court under Article 34 of the Convention for
the Protection of Human Rights and Fundamental Freedoms (“the
Convention”) by two Guinean nationals, Mr Ibrahima Diallo (“the
first applicant”) and Mr Mamadou Dian Diallo (“the second
applicant”), on 15 May 2007.
- The
applicants were represented by Mr J. Větrovský, a lawyer
with Asociace pro právní otázky migrace,
a non-governmental organisation based in Prague. The Czech Government
(“the Government”) were represented by their Agent, Mr V.
A. Schorm, of the Ministry of Justice.
- On
19 May 2010 the President of the Fifth Section decided to give notice
of the application to the Government. It was also decided to examine
the merits of the application at the same time as its admissibility
(Article 29).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
A. Mr Ibrahima Diallo (“the first applicant”)
- On
8 November 2006 the first applicant arrived at Prague airport by
plane from Dakar (Senegal), having transferred in Lisbon. Immediately
after his arrival, he applied for asylum. For the whole period of his
stay in the Czech Republic, he was held at the reception centre for
asylum seekers at Prague airport.
1. Asylum proceedings
- In
his application for asylum he submitted that in Guinea he had
participated in a teacher's strike and that subsequently police had
come looking for him at home so he had had to flee. He feared that if
returned to Guinea, he would be detained or even murdered. In a
subsequent interview he specified that he had fled Guinea with the
help of an employee of UNICEF, who also secured the assistance of a
policeman.
- On
15 November 2006 the Department for Asylum and Migration Policy of
the Ministry of the Interior (odbor azylové a migrační
politiky ministerstva vnitra) dismissed his asylum application as
manifestly unjustified (zjevně nedůvodná)
under section 16(1)(e) of the Asylum Act without examining its
merits, stating that the first applicant had arrived from Portugal,
which was considered a safe third country.
- The
first applicant applied for judicial review which, however, in cases
rejected under section 16(1)(e) of the Asylum Act, did not have
a suspensive effect. On 19 April 2007 he requested that those
proceedings be terminated, which the Prague Municipal Court (městský
soud) did on 31 May 2007.
2. Expulsion proceedings
- On
23 November 2006 the Prague-Ruzyně Aliens and Customs Police
Service (referát cizinecké a pohraniční
policie) ordered the first applicant to leave the country by 2
December 2006. As the applicant did not comply with the order, the
Police Service instituted administrative expulsion proceedings
against him.
- In
the context of those proceedings the Police Service interviewed the
first applicant on 3 December 2006. He reiterated that he could not
return to his home country because he could be killed or injured
there and would most likely be imprisoned. He submitted that he had
been one of the initiators of a student demonstration in which
several participants were killed. The Police Service also requested,
as required by law, an opinion of the Ministry of the Interior as to
whether there were any obstacles to the applicant's removal. On 4
December 2006 the Ministry replied in the negative, stating that the
first applicant was facing expulsion to Portugal, which was a safe
country.
- On
4 December 2006 the Aliens and Customs Police Service issued an
administrative expulsion order (správní vyhoštění)
ordering the first applicant to leave the country within twenty days
and prohibiting him from entering the Czech Republic for six months.
It held that the first applicant had stayed in the Czech Republic
without a valid visa after his asylum request had been rejected.
- On
28 February 2007 the Prague Aliens and Customs Police Directorate
(ředitelství sluZby cizinecké a pohraniční
policie) rejected the first applicant's appeal, upholding the
reasoning of the Aliens and Customs Police Service. The first
applicant received this decision on 13 March 2007.
- On
15 May 2007 at about 4 a.m. and without prior notice, the first
applicant was removed from the Czech Republic to Guinea by plane via
Brussels. Later on, while the first applicant was in police custody
in Guinea, his lawyer managed to contact him by telephone, but he
refused to provide any information about his treatment in detention.
- The
first applicant is currently living in Saudi Arabia.
B. Mr Mamadou Dian Diallo (“the second applicant”)
- On
11 October 2006 the second applicant arrived at Prague airport by
plane from Dakar (Senegal) with a transfer in Lisbon. He was denied
permission to board a plane to Dubai and, subsequently, applied for
asylum. During his stay in the Czech Republic, the applicant was held
at both the reception centre for asylum seekers at Prague airport and
the detention centre in Velké Přílepy.
1. Asylum proceedings
- In
his application for asylum he submitted that his father had been an
active member of an opposition political party, Union for the New
Republic, and had been detained and killed in 2000. After the death
of his father, the applicant had created the Union for the Employment
of Youth and became its president. He had continued to have contact
with members of the opposition and his association had supported the
trade unions. In 2006 a conflict began between the Government
and trade unions and the Guinean Police had started looking for him.
- On
15 October 2006 the Department for Asylum and Migration Policy of the
Ministry of the Interior dismissed the second applicant's asylum
request under section 16(1)(e) of the Asylum Act without examining
its merits, holding that the second applicant had arrived from
Portugal, a safe third country.
- The
second applicant applied for judicial review and requested
a suspension of the legal force of the administrative decision.
He argued that according to the European Union Dublin Regulation, it
was the Czech Republic that should process his request for asylum and
not Portugal. Consequently, the Ministry should have considered the
merits of his application.
- On
15 March 2007 the Prague Regional Court (krajský soud)
upheld the administrative decision not to grant the second applicant
asylum. It agreed with the reasoning that the second applicant had
arrived from Portugal, which is a safe third country, and that he
should have asked for asylum there. The court did not deal with the
second applicant's request for suspension of the legal force of the
decision. The judgment was served on the second applicant on 10 May
2007. Having been removed from the Czech Republic before the
expiration of the statutory time-limit, he did not appeal on points
of law.
2. Expulsion proceedings
- On
22 November 2006 the Prague-Ruzyně Aliens and Customs Police
Service ordered the second applicant to leave the country by
1 December 2006. As the second applicant did not comply with the
order, the Police instituted administrative expulsion proceedings
against him.
- In
the context of those proceedings the Police Service held an interview
with the second applicant on 3 December 2006 in which he reiterated
his fears of returning to Guinea. It also requested, as required by
law, an opinion of the Ministry of the Interior whether there were
any obstacles to the second applicant's expulsion. On 4 December 2006
the Ministry replied in the negative, stating that the second
applicant was facing expulsion to Portugal, which was a safe country.
- On
4 December 2006 the Aliens and Customs Police Service issued an
expulsion order against the second applicant prohibiting him from
entering the Czech Republic for six months and ordering him to leave
the country within twenty days. It held that the applicant had stayed
in the country without a valid visa.
- On
2 March 2007 the Prague Aliens and Customs Police Directorate
rejected the second applicant's appeal, sharing the opinion of the
Aliens and Customs Police Service. The second applicant was notified
on 13 March 2007.
- On
15 May 2007 at about 4 a.m. and without prior notice, he was removed
from the Czech Republic to Guinea by plane via Brussels. His lawyer
was not informed about the removal beforehand and has not managed to
reach the second applicant since then.
- On
30 November 2006 the second applicant had signed a power of attorney
for Mr J. Větrovský, who is representing him in the
proceedings before the Court, authorising him to take any legal
action relating to his expulsion, including preventing the expulsion,
and to make any claims arising from the situation, including, if
necessary, representing him before the courts.
II. RELEVANT DOMESTIC LAW AND PRACTICE
A. Asylum Act (no. 325/1999) (as in force at the relevant time)
- Under
section 16(1)(e) an application for asylum had to be rejected as
manifestly unjustified if the applicant arrived from a country which
the Czech Republic considered to be a safe third country or a safe
country of origin, unless it was proven that in a particular case
this country could not be deemed to be safe.
- Section
32 stipulated:
“1. an action against the decision of the Ministry
concerning asylum shall be filed within 15 days of the serving of the
decision.
2. Within seven days of the serving of the decision, an
action may be filed against the decision on asylum
a) which rejects the application as manifestly
unjustified, ...
3. The filing of an action under subsections 1 and 2 has
a suspensive effect, except in the case of an action against
termination of the proceedings pursuant to section 25 or an action
against a decision under section 16(1)(e) and (f).
(4) The proceedings on an action fall within the
jurisdiction of the regional court ...
(5) The lodging of an appeal on points of law against
the decision of the regional court on the action against the decision
made by the Ministry in the matter of asylum pursuant to subsections
(1) and (2) shall have a suspensive effect.”
B. Aliens' Residence in the Czech Republic Act (no. 326/1999)
- Under
section 120a(1) the police, within the framework of making a decision
on administrative expulsion pursuant to section 119 or section 120,
are obliged to request from the Ministry of the Interior a binding
opinion as to whether the alien's departure is possible (section
179). Under subsection (3) the Ministry will issue its binding
opinion without delay.
- Section
171(c) ruled out judicial review of a decision on administrative
expulsion if prior to the proceedings on expulsion the alien had been
staying in the territory unlawfully. This provision was repealed by
the Constitutional Court as unconstitutional in its judgment of
9 December 2008 (Pl. ÚS 26/07).
- Section
179 regulates obstacles to an alien departing from the territory of
the Czech Republic:
(1) An alien's departure shall not be permitted if there
is reason to believe that, if returned to the state of which he is a
citizen, or, in the case of a stateless individual, to the state in
which he last held permanent residence, he would be in real danger of
serious harm as defined in subsection (2) below and that, due to this
danger, he is either unable or unwilling to accept protection from
the state of which he is a citizen or in which he last held permanent
residence.
(2) For the purposes of this Act, serious harm is
understood to be:
a) the imposition or execution of a death penalty;
b) torture, or inhuman or degrading treatment or
punishment;
c) serious threat to life or human dignity due to
unwarranted violence in situations of international or internal armed
conflict; or
d) if the alien's departure would be in conflict with
the Czech Republic's international obligations.
III. RELEVANT REPORTS PERTAINING TO THE SITUATION IN
GUINEA
- The
Court has described the situation in Guinea in M.A.D. v. France
(dec.), no. 50284/07, 12 October 2010. The following documents
pertain to the situation there at the time relevant for the present
application.
A. Documents drawn up in the context of the Universal Periodic
Review by the United Nations Human Rights Council
1. Compilation prepared by the United Nations Office of the High
Commissioner for Human Rights in accordance with paragraph 15 (b)
of the annex to Human Rights Council resolution
5/1 (A/HRC/WG.6/8/GIN/2), 19 February 2010
“19. On 13 June 2006, the Secretary-General stated
that he was deeply concerned by the killings of approximately 10
students during the demonstrations on 12 June 2006. He underlined the
need for the non-violent resolution of disputes and called on the
authorities to exercise restraint.
20. On 22 January 2007, the Secretary-General stated
that he was gravely concerned at the excessive use of force resulting
in the loss of life in clashes in Guinea. He strongly urged the
Government to carry out investigations into the killings with a view
to bringing those responsible to justice, and to take the necessary
measures to ensure the safety of all citizens throughout the country.
He urged the parties to engage in dialogue in order to find a
peaceful resolution to the dispute.
21. On 13 February 2007, the High Commissioner for Human
Rights condemned the reported killing of civilians in Guinea days
before, and recalled that fundamental human rights cannot be
curtailed even in a state of emergency. The same day, the
Secretary-General reiterated his grave concern over the worsening
political and security situation in Guinea, and stated that he
deplored the continued loss of lives and the wanton destruction of
property. He urged the Government and the security forces to exercise
maximum restraint and to scrupulously uphold the rule of law and
respect for human rights, and he urged the labour leaders to refrain
from inciting violence and the destruction of property.
...
40. In January 2007, the Special Rapporteurs on the
right to freedom of opinion and expression and on the question of
torture drew the Government's attention to the general strike, which
began on 10 January 2007 in Conakry, in protest against the
Government and its management of the country. During the strike four
persons were killed, many were injured and at least 60 were
arrested.”
2. Report of the Working Group on the Universal Periodic Review,
A/HRC/15/4, 14 June 2010
- During
the discussion in the Human Rights Council, the Guinean Government
admitted that “a lack of political will has affected the
implementation of national and international legislation on human
rights. That deficiency has led to serious and massive human rights
violations by successive Governments. Denunciations and complaints,
linked to political instability and lack of security, have resulted
in massive uprisings and general disputes. ... Human rights
violations, which commenced in June 2006, have continued up to
September 2009.”
B. US Department of State Human Rights Reports on Guinea
- In
2006 and 2007 the US State Department Country Reports on Human Rights
Practices reported serious human rights abuses in Guinea including
killings and ill-treatment of student demonstrators by security
forces, arbitrary arrests and intimidation of citizens during general
strikes and inhuman and life-threatening prison conditions. The
reports also noted instances when persons suspected of inciting
violence during the general strike were detained for a few days and
after release without any charges were repeatedly harassed by
security officers and threatened in anonymous phone calls.
- At
the same time the reports noted that political detentions rarely
exceeded a few days and those persons were generally extended more
protection than other detainees due to the NGO and media attention
their cases attracted.
C. Amnesty International Reports on Guinea
- According
to Amnesty International's 2008 annual report Guinean security forces
used excessive force against demonstrators, arbitrary detention and
killings by security forces were reported and torture and other
ill-treatment of protesters and detainees were widespread in 2007:
“Against the background of a serious economic
crisis, Guinea's two principal trade unions, supported by the main
opposition parties, called a general strike in January 2007. ...
President Lansana Conté ... attempted to suppress the movement
by force. Throughout January, at the beginning of the movement,
members of the security forces shot at peaceful demonstrators,
killing dozens of people and injuring others. Despite this use of
force and the arrest of some civil society leaders and trade
unionists, the general strike continued and in late January the trade
unions demanded the appointment of a consensus government.
In February ..., clashes between the demonstrators and
the security forces increased and a state of emergency was declared
on 12 February. ...
In May, members of the armed forces took to the streets
in the capital, Conakry, and other towns, demonstrating and firing
into the air. At least 13 people were killed and others were injured
by stray bullets.
...
An Independent Commission of Inquiry was established in
May 'charged with conducting investigations into grave human rights
violations and offences committed during the strikes of June 2006 and
January and February 2007'. Dozens of people, including demonstrators
and employees of a private radio station, were arrested for short
periods of time by the security forces during the general strike.
Some were tortured in custody.”
- Amnesty
International also reported on a particular case of a member of the
Union of the Guinean Youth who was arrested twice in February 2007:
“He was beaten with rifle butts and police officers walked on
him and kicked him in the chest while he was handcuffed with both
arms behind his back. Officers tied both his elbows behind his back
and inserted a baton between his arms, pulling on it at regular
intervals to increase the pain.”
D. Human Rights Watch Reports on Guinea
- In
its August 2006 report “The Perverse Side of Things”
Human Rights Watch documented cases of serious torture in detention
facilities and reported that “Security forces and other
government officials in Guinea routinely violate some of the most
basic civil and political rights, including the inherent right to
life, freedom from torture, freedom of expression, freedom of
assembly, and the right to a trial within a reasonable period. These
violations are committed against individuals accused of common crimes
as well as those persons security forces perceive to be government
opponents.”
- In
a note released on 15 February 2007 “Security Forces Abuse
Population Under Martial Law” it reported that Guinean security
forces were using martial law declared on 12 February 2007 as an
excuse to terrorize ordinary Guineans and, under the guise of
re-establishing law and order, were acting like common criminals,
beating, robbing and brutalizing the population they were supposed to
protect.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION IN
CONJUNCTION WITH ARTICLE 3 OF THE CONVENTION
- The
applicants complained that they had no effective remedy for their
arguable claim under Article 3 of the Convention that they would be
ill-treated if returned to Guinea. They relied on Article 13 of the
Convention, which reads as follows:
“Everyone whose rights and freedoms as set forth
in [the] Convention are violated shall have an effective remedy
before a national authority notwithstanding that the violation has
been committed by persons acting in an official capacity.”
- The
Government disputed the applicants' assertions.
A. Admissibility
1. Incompatibility ratione
personae and motion to strike out the application regarding
the second applicant
- The
Government objected that the second applicant had not submitted a
power of attorney for the representative that had lodged the present
application on his behalf which, consequently, had to be declared
inadmissible as incompatible ratione personae. Alternatively,
they maintained that since the applicant had not contacted his
counsel at any time after his expulsion, he must be deemed to have
lost interest in pursuing his application, which thus had to be
struck out of the list of cases under Article 37 § 1 (a) or (c)
of the Convention.
- The
second applicant's counsel maintained that he had only lost contact
with his client due to his unlawful expulsion to Guinea, of which he
had at no point been informed, having learned of it only later from
another person who had been detained with the second applicant. He
admitted that despite his continuous attempts he had so far not been
able to re-establish contact with the second applicant, but that this
was most probably due to the fact that he was in hiding. According to
information provided by the first applicant, who is, however, not in
direct contact with the second applicant either, the latter is
currently somewhere in Sierra Leone. Nevertheless, the representative
argued that he had submitted a general power of attorney duly signed
by the second applicant which, in the circumstances of the present
case, should be deemed sufficient.
42. With reference to Rules 36 and 45 of the Rules of Court, the
Court observes that the application form was signed by the second
applicant's lawyer. The form was accompanied by a power of attorney
signed by the second applicant, authorising his lawyer to act on his
behalf and to represent him before any court in relation with his
expulsion from the Czech Republic, including preventing the
expulsion, and to make any claims arising from the situation. It
notes that this power of attorney was not withdrawn (see, a
contrario, K.M. and Others v. Russia (dec.), no. 46086/07,
29 April 2010).
- In
these circumstances the Court considers that the applicant has
sufficiently demonstrated that he wished Mr J. Větrovský
to make an application to the Court on his behalf (see Ivan Kuzmin
v. Russia, no. 30271/03, § 49, 25 November 2010).
Accordingly, it holds that the application cannot be rejected as
incompatible ratione personae pursuant to Article 35 §§
3 and 4 of the Convention and dismisses the Government's objection.
- Regarding
the related and alternative objection of the Government, that is,
that the application should be struck out of the list of cases, the
Court observes that the inability of the lawyer to contact his client
is a direct consequence of the State's action in expelling the latter
to Guinea without any prior notice to that effect. The present case
is thus materially different from all the cases referred to by the
Government in which the lawyer lost all contact with the applicant
but not due to any act of the State (see Ali v. Switzerland,
5 August 1998, Reports 1998 V; Chirino v. the
Netherlands (dec.), no. 31898/04, 4 May 2006; Noor Mohammed v.
the Netherlands (dec.), no. 14029/04, 27 March 2008; and Ramzy
v. the Netherlands (striking out), no. 25424/05, 20 July 2010).
- The
Court further notes that the present case is different from those
cases referred to by the Government where there was either no power
of attorney (see Nehru v. the Netherlands (dec.), no.
52676/99, 27 August 2002), or the validity of which was questioned
(see Hussun and Others v. Italy (striking out), nos.
10171/05, 10601/05, 11593/05 and 17165/05, § 46, 19 January
2010).
- The
Court also considers that the situation of the second applicant is
akin to that of the applicants in Shamayev and Others v. Georgia
and Russia, § 312, no. 36378/02, ECHR 2005 III, where
the applicants' lawyers were unable to re-establish contact with
their clients because of acts of the respondent Governments. In that
case, the Court stressed that those circumstances could not be
attributable to the applicants.
- In
the present case the Court considers that it is similarly no fault of
the second applicant that he was deported to Guinea at 4 a.m. without
any prior notice either to him or his lawyer and, as a consequence,
the lawyer lost all contact with him. The Court considers that it
would be artificial and speculative to presume that the applicant
does not intend to pursue his application, as envisaged by Article 37
§ 1 (a) of the Convention.
- Accordingly,
in the special circumstances of the present case, where the inability
of the lawyer to contact the second applicant was a consequence
of the latter's deportation by the State, the Court dismisses the
Government's objection.
2. Non-exhaustion of domestic remedies
- The
Government further maintained that the applicants had not made use of
any remedies regarding their complaint that their right under Article
13 of the Convention had been violated. They held that a distinction
must be made between a remedy within the meaning of this provision,
taken together with Article 3 of the Convention, that is, proceedings
in which the applicants can raise their claim of the risk of a
violation of Article 3 of the Convention on the one hand, and
proceedings in which it is possible to remedy a violation of Article
13 of the Convention on the other hand. Given that the applicants
only allege a violation of Article 13 of the Convention, they should
have exhausted the latter remedies.
- According
to the Government, if an applicant claims that there has been a
violation of Article 13 of the Convention due to the absence of
effective proceedings in which claims of a violation of Article 3 of
the Convention would be reviewed, he is obliged, in accordance with
the principle of subsidiarity, to raise a claim about the
non-existence of an effective remedy before the domestic authorities,
provided such a possibility exists. The purpose of such proceedings
would not be to remedy the alleged violation of Article 3 of the
Convention but only to make right the alleged violation of Article 13
of the Convention.
- They
submitted that in this respect the applicants should have requested
judicial review of the administrative decisions on expulsion and
eventually lodged a constitutional appeal.
- The
applicants disagreed, arguing that the question of non-exhaustion of
remedies under Article 13 of the Convention is inextricably linked to
the merits of the complaint.
- The
Court reiterates that under Article 35 § 1 it may only deal with
a matter after all domestic remedies have been exhausted.
Applicants must have provided the domestic courts with the
opportunity, in principle intended to be afforded to Contracting
States, of preventing or putting right the violations alleged against
them. That rule is based on the assumption, reflected in Article 13
of the Convention – with which it has close affinity –
that there is an effective remedy available in the domestic system in
respect of the alleged breach of an individual's Convention rights
(see, among many other authorities, McFarlane v. Ireland [GC],
no. 31333/06, § 107, ECHR 2010 ... and Kudła v.
Poland [GC], no. 30210/96, § 152, ECHR 2000 XI).
Therefore, Article 13 of the Convention guarantees the existence of
effective domestic remedies, which the applicants must normally
exhaust under Article 35 § 1 of the Convention before lodging
their application with the Court.
- The
only remedies which Article 35 § 1 requires to be exhausted are
those that relate to the breach alleged and are available and
sufficient. The existence of such remedies must be sufficiently
certain not only in theory but also in practice, failing which they
will lack the requisite accessibility and effectiveness: it falls to
the respondent State to establish that these conditions are
satisfied. As the Court has held on many occasions, Article 13 of the
Convention guarantees the availability at national level of a remedy
to enforce the substance of the Convention rights and freedoms in
whatever form they may happen to be secured in the domestic legal
order. The effect of Article 13 is thus to require the provision of a
domestic remedy to deal with the substance of an “arguable
complaint” under the Convention and to grant appropriate
relief. The remedy required by Article 13 must be “effective”
in practice as well as in law, in the sense either of preventing the
alleged violation or its continuation, or of providing adequate
redress for any violation that had already occurred (see McFarlane
v. Ireland [GC], cited above, §§ 107-108 and Kudła
v. Poland [GC], cited above, §§ 157-158).
- The
close affinity between Article 13 of the Convention and the
obligation to exhaust domestic remedies under Article 35 § 1 of
the Convention means that if there are no effective domestic remedies
that the applicants must exhaust, an issue under Article 13 arises
and applicants can lodge a complaint under Article 13 in conjunction
with another substantive provision of the Convention. Consequently,
if the Court required exhaustion of domestic remedies regarding
Article 13 complaints then Article 13 of the Convention would have to
guarantee also effective remedies for alleged violations of Article
13 itself. In the view of the Court this interpretation is, however,
ruled out by the fact that Article 13 is only ancillary to other
“rights and freedoms as set forth” in the Convention and
applies only in conjunction with a substantive right provided for in
the Convention. It thus cannot be invoked independently or “in
conjunction” with itself.
- Moreover,
any separate domestic remedies for Article 13 complaints do not
necessarily need to be effective for the arguable claim under the
provision of the Convention with which Article 13 is invoked.
Applicants would thus be forced to exhaust domestic remedies that did
not provide an effective remedy for their main claim. The Court
considers that this would be against the object and purpose of
Article 13, which is to guarantee provision of an effective remedy
for arguable claims of breaches of the substantive provisions of the
Convention. The question whether the remedies suggested as effective
for Article 13 claims could also ultimately provide an effective
remedy for the arguable claim under the other substantive provision
of the Convention must be considered at the merits stage and not at
the admissibility stage.
- In
the present case, the applicants complain that none of the domestic
authorities reviewed the merits of their claim under Article 3 of the
Convention. They thus made a complaint before the Court that they had
no effective remedy under domestic law regarding their Article 3
claim that they would be subjected to ill-treatment if expelled to
Guinea. Their Article 13 complaint is only auxiliary to the
substantive matter and was made only when the applicants, in pursuing
their claims under Article 3, considered that they had no effective
remedy in that regard. The applicants' primary concern is a breach,
or the prevention of a breach, of the substantive provision of the
Convention in conjunction with which they made their Article 13
complaint. Whether their complaint is well-founded is a question to
be considered at the merits stage.
- In
view of the above considerations, the Court finds that the remedies
that need to be exhausted under Article 35 § 1 of the Convention
relate to the substantive provision in conjunction with which Article
13 of the Convention is being invoked. Accordingly, the Court does
not share the opinion of the Government that Article 35 § 1 of
the Convention requires applicants alleging a violation of Article 13
of the Convention to exhaust any separate domestic remedies
pertaining to that claim and thus dismisses this objection.
3. Arguable claim
- The
Government maintained that the applicants' claims of a violation
of Article 3 of the Convention were not arguable. Consequently, in
their view, the complaint under Article 13 had to be rejected as
incompatible with the Convention ratione materiae.
- The
Court, however, considers that this objection is more appropriately
considered as an objection on the ground that the complaint is
manifestly ill-founded (see Bolgov v. Russia (dec.), no.
28780/03, 6 May 2010; Svinarenkov v. Estonia (dec.),
no. 42551/98, 15 February 2000; or McParland v. the
United Kingdom (dec.), no. 47898/99, 30 November 1999).
- The
applicants maintained that their claims that they would be
ill-treated if expelled to Guinea were arguable given the general
situation in that country. They also noted that since no domestic
authority had reviewed their claims, the Government could not
maintain that they were not arguable. In response to the objection of
the Government on the ground that they had not challenged the binding
opinions of the Ministry of the Interior that there had been no
obstacle to them leaving the country, they held that there had been
no reason to do so, since those opinions had only dealt with their
possible expulsion to Portugal, which would not have been a problem.
- Regarding
the first applicant, the Government noted that he had been an
ordinary participant in the teacher's strike and that there was no
evidence that he faced an increased risk of persecution. They added
that in his interview on the application for asylum he had noted that
a policeman had assisted him in leaving the country, and thus his
claim that he was sought by the police was, at the least, disputable.
They also referred to reports of the US Department of State that even
though participants in the strikes and demonstrations were the target
of police violence they were kept in custody for short periods and
those arrested for political reasons were treated better than
“ordinary” prisoners and presumably were therefore not
subjected to treatment contrary to Article 3 of the Convention. In
any case the available reports did not indicate that the participants
in the strikes and demonstrations were continuously persecuted and
that the first applicant faced, several months after the strike, a
risk of ill-treatment within the meaning of Article 3 of the
Convention. Lastly, the Government noted that in his appeal against
the decision on administrative expulsion, the first applicant had not
challenged in any way the binding opinion of the Ministry of the
Interior that there was no obstacle to his leaving the country, which
cast doubts on the reality and depth of his fears of possible
ill-treatment in the Republic of Guinea.
- Regarding
the second applicant, the Government admitted that as the president
of an association that apparently had a political focus, he could
have faced a more serious risk than the first applicant.
Nevertheless, they believed that it had been an association of
secondary school students, and the information provided by the second
applicant had not indicated that the ruling regime ascribed any
particular importance to this association, or indeed that it had been
involved in any political activity. As in the case of the first
applicant, the Government stressed that in his appeal against the
decision on administrative expulsion the second applicant had not
challenged in any way the binding opinion of the Ministry of the
Interior that there was no obstacle to his leaving the country.
Moreover, in the asylum proceedings before the court, he did not
raise the claim that he would risk ill-treatment if returned to the
Republic of Guinea.
- The
Court reiterates that “arguable” does not mean that the
substantive right must have been violated (see Leander v. Sweden,
26 March 1987, § 79, Series A no. 116). “Arguability”
must be determined in the light of the particular facts and the
nature of the legal issue or issues raised (Boyle and Rice v. the
United Kingdom, 27 April 1988, § 55, Series A no. 131).
- In Shamayev and Others v. Georgia and Russia,
no. 36378/02, § 340 in conjunction with § 445, ECHR
2005 III the Court considered that the applicants' legitimate
fear, when in view of the situation in the target country, of being
confronted with a threat to their lives or treatment contrary to
Article 3 of the Convention, was subjectively well-founded and
genuinely perceived as such, and that their claim for the purpose of
Article 13 of the Convention was thus arguable.
- In determining whether substantial grounds have been
shown for believing that a real risk of treatment contrary to Article
3 exists, the Court will assess the issue in the light of all the
material placed before it or, if necessary, material obtained proprio
motu. Since the nature of the Contracting States' responsibility
under Article 3 in cases of this kind lies in the act of exposing an
individual to the risk of ill-treatment, the existence of the risk
must be assessed primarily with reference to those facts which were
known or ought to have been known to the Contracting State at the
time of the extradition (see Mamatkulov and Askarov v. Turkey
[GC], nos. 46827/99 and 46951/99, § 69, ECHR 2005 I).
- Examining
the facts of the present case, the Court takes account of the various
reports that documented serious human rights violations in Guinea at
the relevant time, that is, 2006 and 2007. The reports contain
information about the use of excessive force, occasionally resulting
in deaths, against demonstrators and participants in strikes, the
arbitrary arrest and persecution of such individuals and inhuman
conditions of detention.
- The
Government relied on the information from the US Department of State
Reports that persons arrested for political reasons were treated
better than “ordinary” prisoners and presumably were
therefore not subjected to treatment contrary to Article 3 of the
Convention. The Court is however of the opinion that better treatment
does not necessarily mean treatment in compliance with Article 3 of
the Convention. At the same time it notes other reports that torture
and other ill-treatment of protesters and detainees was widespread at
that time. It also notes the admission of the Guinean Government in
2010 before the UN Human Rights Council that “serious and
massive” human rights violations were committed between June
2006 and September 2009.
- Regarding
the individual circumstances of the applicants, the Court notes that
according to their statements the first applicant participated in
demonstrations and strikes against the Government and was sought by
the police. The second applicant was the president of a student youth
association, which supported the trade unions in their struggle
against the government. He was also sought by the police. The Court
notes that these statements have not at any time been disputed by the
domestic authorities or found to be untrue.
- The
Court reiterates that an arguable claim does not entail certainty.
Given the available information on the human rights situation in
Guinea 2006 and 2007 and the personal circumstances of the applicants
the Court considers that their fears were subjectively well-founded
and genuinely perceived as such. Accordingly, the claims of the
applicants under Article 3 of the Convention must be considered
arguable for the purposes of Article 13 of the Convention.
- The
Court thus considers that the complaint is not manifestly ill-founded
within the meaning of Article 35 § 3 (a) of the Convention or
inadmissible on any other ground. It must therefore be declared
admissible.
B. Merits
1. Observations of the parties
- The
applicants complained that none of the domestic authorities had
reviewed the merits of their claim that they faced treatment contrary
to Article 3 of the Convention in their country of origin. At the
same time the requests for judicial review of the decisions not to
grant them asylum had had no automatic suspensive effect. Replying to
an objection of the Government on the ground that he had withdrawn
his request for a judicial review in the asylum proceedings, the
first applicant stated that this had been due to the fact that he had
already been held at the airport for a long time and he intended to
lodge a new asylum application by which he hoped to be released from
the airport reception centre. However, he had not been able to do so
while his original application had been pending.
- The
Government maintained that the applicants could have obtained a
review of their claims in the asylum proceedings and that while
lodging the request for a judicial review they could have asked that
the legal force of the decisions be suspended. They held that the
first applicant had withdrawn his action and that a judgment had been
delivered prior to the expulsion of the second applicant. They also
maintained that the applicants should have requested judicial review
of the administrative expulsion decisions, notwithstanding that it
had been ruled out by law at that time, and ultimately should have
lodged constitutional appeals, which would have been successful as
evidenced by the judgment of the Constitutional Court of 9 December
2008.
2. The Court's assessment
- The
Court reiterates that in the circumstances of extradition or
expulsion and a claim in conjunction with Article 3 of the
Convention, given the irreversible nature of the harm which might
occur if the alleged risk of torture or ill-treatment materialised,
and the importance which the Court attaches to Article 3, the notion
of an effective remedy under Article 13 requires (i) close and
rigorous scrutiny of a claim that there exist substantial grounds for
believing that there was a real risk of treatment contrary to Article
3 in the event of the applicant's expulsion to the country of
destination, and (ii) a remedy with automatic suspensive effect (see
M.S.S. v. Belgium and Greece [GC], no. 30696/09, § 387, 21
January 2011; Baysakov and Others v. Ukraine, no. 54131/08, §
71, 18 February 2010; and Gebremedhin [Gaberamadhien] v. France,
no. 25389/05, § 66, ECHR 2007 V).
- Turning
to the present case, the Court notes that the applicants were parties
to two sets of proceedings in which their claim that there was a real
risk of ill-treatment in their country of origin could have been
examined, namely, the asylum proceedings and the administrative
expulsion proceedings.
- Regarding
the asylum proceedings, the Court notes that their asylum
applications were rejected by the Ministry of the Interior without
a consideration on the merits, on the ground that they had
arrived from Portugal, which was considered a safe third country. In
this context the applicants argued that under the European Union
Dublin Regulation it was the Czech Republic and not Portugal which
should have examined their asylum request. It is, however, not the
Court's task to interpret European Union law or domestic law; it
suffices to note that the applicants were not eventually expelled to
Portugal but to their country of origin.
- The
Court observes that the applicants' claims that there was a real risk
of ill-treatment in their country of origin were not subjected to
close and rigorous scrutiny by the Ministry of the Interior as
required by the Convention, or in fact to any scrutiny at all. At the
same time, their requests for judicial review did not have an
automatic suspensive effect because their asylum requests had been
considered manifestly unjustified. A constitutional appeal would
not have had an automatic suspensive effect either.
- Given
the lack of automatic suspensive effect as required by Article 13 of
the Convention, the first applicant cannot be faulted for not having
properly exhausted the judicial review proceedings as suggested by
the Government (see M.S.S. v. Belgium and Greece [GC], cited
above, § 396).
- Regarding
the second applicant, the Court notes that unlike the first applicant
the domestic court had reviewed his request for judicial review
before he was expelled. However, not even the Regional Court
subjected his arguable claim under Article 3 of the Convention to
careful scrutiny but only confirmed the decision of the Ministry that
his claim was manifestly unjustified because Portugal was a safe
third country.
- In
these circumstances, the Court considers that the asylum proceedings
did not provide the applicants with an effective domestic remedy
within the meaning of Article 13 of the Convention.
- Regarding the administrative expulsion proceedings,
the Court similarly notes that none of the authorities examined the
merits of the applicants' arguable claim under Article 3 of the
Convention. In particular, the conclusions of the compulsory opinions
of the Ministry of the Interior that there were no hindrances to the
applicants' expulsion were explicitly based on the assumption that
the applicants were liable to be expelled to Portugal only.
- The
Court observes that a judicial review of the administrative decisions
in these proceedings was explicitly ruled out by a provision of the
Aliens Act valid at that time. Yet, the Government argued that the
applicants should have, nevertheless, challenged that domestic
provision before the Constitutional Court.
- The
Court notes, however, that in the content of such proceedings the
Constitutional Court would not have reviewed the merits of the
applicants' arguable claims under Article 3 of the Convention but
would have dealt only with the question of conformity of the
particular provision of the Aliens Act with the Constitution.
Moreover, such proceedings would not have had an automatic suspensive
effect on the applicants' expulsion, and they would have been liable
to deportation at any time. Consequently, the Court does not consider
that lodging a request for judicial review of the decision on
administrative expulsion and a subsequent constitutional appeal would
have been an effective remedy in the present case.
- Regarding
the possibility of a direct constitutional appeal claiming
a violation of Article 3 of the Convention as suggested by the
Government, the Court likewise notes that it would not have an
automatic suspensive effect and thus does not satisfy the
requirements of Article 13 of the Convention in the present context.
- Accordingly,
none of the domestic authorities examined the merits of the
applicants' arguable claim under Article 3 of the Convention and
there were no remedies with automatic suspensive effect available to
the applicants regarding the authorities' decision not to grant them
asylum and to expel them. In view of the foregoing, the Court finds
that there has been a violation of Article 13 of the Convention
taken in conjunction with Article 3 of the Convention.
II. ALLEGED VIOLATION OF ARTICLE 34 OF THE CONVENTION
- The
applicants further complained that by deporting them without prior
notice the State had denied them an effective right of individual
application to the Court in that they could not request an interim
measure. They relied on Article 34 of the Convention, which reads:
“The Court may receive applications from any
person, non-governmental organisation or group of individuals
claiming to be the victim of a violation by one of the High
Contracting Parties of the rights set forth in the Convention or the
Protocols thereto. The High Contracting Parties undertake not to
hinder in any way the effective exercise of this right.”
- The
Court firstly observes that in the present case the applicants
complained that their rights under Article 13 in conjunction with
Article 3 of the Convention were violated. They did not allege a
violation of Article 3 of the Convention itself, in which case it
might have been appropriate to request an interim measure.
Consequently, the fact that they could not ask for an interim measure
to stay their expulsion under Article 3 of the Convention does not
raise an issue in the present case.
- Regarding
their claim under Article 13 of the Convention, the Court does not
consider that the applicants' expulsion has any bearing on it. The
subject matter of that complaint is the lack of an effective domestic
remedy regarding expulsion and not the expulsion itself. They were
able to duly submit this complaint to the Court, as evidenced by the
present application.
-
Consequently, the respondent State has not failed to comply with its
obligations under the last sentence of Article 34 of the Convention.
III. APPLICATION OF ARTICLE 41 OF THE CONVENTION
- Article
41 of the Convention provides:
“If the Court finds that there has been a
violation of the Convention or the Protocols thereto, and if the
internal law of the High Contracting Party concerned allows only
partial reparation to be made, the Court shall, if necessary, afford
just satisfaction to the injured party.”
A. Damage
- The
applicants claimed EUR 5,000 each in respect of non-pecuniary damage.
- The
Government considered that the finding of a violation would
constitute sufficient just satisfaction for any non-pecuniary damage
the applicants might have sustained. Regarding the second applicant,
the Government added that no damages should be awarded to him in any
case because since there was no contact between him and his lawyer,
the lawyer was not in a position to know about the second applicant's
claims.
- The
Court has found that no national authority subjected to close
scrutiny the applicants' arguable claim under Article 3 of the
Convention. In these circumstances, the Court considers that the
applicants' suffering and frustration cannot be compensated for by a
mere finding of a violation. Having regard to the nature of
the violations found and making an assessment on an equitable basis,
the Court awards the first applicant 5,000 euros (EUR) in respect of
non-pecuniary damage, plus any tax that may be chargeable.
- Regarding
the second applicant the Court notes that his whereabouts are
currently unknown. His representative's attempts to re-establish
contact with him were to no avail. Thus, the Court considers that the
question of the application of Article 41 regarding the second
applicant is not ready for decision (Muminov v. Russia, no.
42502/06, § 143, 11 December 2008). Accordingly, it should be
reserved and the subsequent procedure fixed, having regard to any
agreement which might be reached between the Government and the
second applicant (Rule 75 § 1 of the Rules of Court).
B. Costs and expenses
- The
applicants claimed together EUR 500 for costs and expenses comprising
of telephone communication between the lawyer and the applicants in
Saudi Arabia and Guinea and costs of photocopying and postal
services.
- The
Government maintained that no award should be made under this head
because the applicants had not submitted any documents to support
their claims.
- According
to the Court's case-law, an applicant is entitled to the
reimbursement of costs and expenses only in so far as it has been
shown that these have been actually and necessarily incurred and are
reasonable as to quantum.
- The
Court observes that had the applicants been represented by a regular
lawyer their expenses would be documented by invoices drawn up by
that lawyer. However, since the applicants in the present case were
represented by an NGO, they could not present such invoices.
- Nevertheless,
the Court considers that the administrative expenses are supported by
documents and information contained in the case file. Firstly, all
the documents that were sent to the Court evidently constitute an
expense, including the postal service fees. Secondly, it is clear
from the information in the case file that the lawyer was in contact
with the first applicant several times in Guinea and Saudi Arabia.
Regard being had to these considerations, to the documents in its
possession and to its case-law, the Court considers it reasonable to
award the sum of EUR 400 to the first applicant under this head.
C. Default interest
- The
Court considers it appropriate that the default interest should be
based on the marginal lending rate of the European Central Bank, to
which should be added three percentage points.
FOR THESE REASONS, THE COURT UNANIMOUSLY
- Declares the complaints under Article 13 of the
Convention in conjunction with Article 3 of the Convention
admissible and the remainder of the application inadmissible;
- Holds that there has been a violation of
Article 13 of the Convention in conjunction with Article 3 of
the Convention;
- Holds
(a) that
the respondent State is to pay to the first applicant, within three
months from the date on which the judgment becomes final in
accordance with Article 44 § 2 of the Convention,
the following amounts:
(i) EUR
5,000 (five thousand euros) to the first applicant, plus any tax that
may be chargeable, in respect of non-pecuniary damage;
(ii) EUR
400 (four hundred euros), plus any tax that may be chargeable to the
first applicant, in respect of costs and expenses;
(b) that
from the expiry of the above-mentioned three months until settlement
simple interest shall be payable on the above amounts at a rate
equal to the marginal lending rate of the European Central Bank
during the default period plus three percentage points;
- Dismisses the remainder of the first applicants'
claim for just satisfaction.
- Holds that the question of the application of
Article 41 regarding the second applicant is not ready for decision;
accordingly,
(a) reserves
the question;
(b) invites
the Czech Government and the applicant to submit, within three months
from the date on which the judgment becomes final in accordance with
Article 44 § 2 of the Convention, their written observations on
the matter and, in particular, to notify the Court of any agreement
that they may reach;
(c) reserves
the further procedure and delegates to the President of the
Chamber the power to fix the same if need be.
Done in English, and notified in writing on 23 June 2011, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
Claudia Westerdiek Dean Spielmann
Registrar President
