With the judgment in the case M.H. and Others v. Croatia, the ECtHR found multiple violations of the Convention concerning the push-back of an Afghan family at the Croatian-Serbian border, which also led to the death of one of the applicants, a six-year-old Afghan child. The Court also found the subsequent placement of the same family in a transit immigration centre – for a period of 2 months and 14 days – to be contrary to the Convention, in terms of detention conditions as well as of its lawfulness. More generally, the judgment of the ECtHR unveils several serious deficiencies in the management of the Croatian borders, pointing to numerous issues in terms of respect for human rights and the rule of law principle.
CJEU, judgment of 20 May 2021, L.R., case C-8/20, EU:C:2019:219 – It’s not one of us! The Dublin System and associated countries: the Court of Justice clarifies the position of Norway.
In L.R., the Court of Justice deals with the involvement of Norway in the Dublin system. The key issue is whether an asylum application previously examined and rejected in a Dublin-associated country (like Norway) may be declared inadmissible as ‘subsequent application’ by an EU Member State. The Court rules that this is not possible: an asylum application cannot be dismissed on the ground that Norway has already rejected it, which means that EU Member States have to re-examine the application and process it ex novo. Although Norway applies the Dublin Regulation, it is not bound by the EU Asylum Directives and is not a member of the EU, nor cannot be treated in the same way as a Member State.
European Court of Human Rights [GC], decision on Admissibility of 5 may 2020, M.N. and others v. Belgium, appl. no 3599/18 – Humanitarian visa: Does the suspended step of the stork become a hunting permit?
The European Court of Human Rights declared the case M.N. and others v. Belgium inadmissible by excluding that Belgium exercised extraterritorial jurisdiction over a family of Syrians requesting humanitarian visas from the Belgian embassy in Beirut. With its assessment as to jurisdiction, the Court insists upon keeping the status quo of access to asylum procedures.
CJEU, judgment of 2 april 2020, Joined cases C-715/17, C-718/17 and C-719/17, ECLI:EU:C:2020:257 – Rebel rebel, how could they know? The boundless imagination of Poland, Hungary and the Czech Republic in opposing the relocation mechanism.
In the case Commission v. Poland, Hungary and the Czech Republic, the Court of Justice of the EU, upholding the actions for failure to fulfill obligations brought by the European Commission, ruled that the defendant States breached EU law by failing to comply with the relocation decisions adopted in 2015 by the Council. The Court rejects the States’ argumentation as to the need to safeguard their national order and security, adduced as justification for not relocating asylum seekers, and confirms that solidarity is a legally binding obligation. It also does not accept the alleged existence of malfunctioning and flaws of the relocation mechanism as a valid reason not to cooperate and show solidarity: it is exactly when obstacles and difficulties arise that solidarity and a sincere, genuine spirit of cooperation are most needed.
ECtHR, 8 october 2019, Szurovecz v. Hungary, App. No. 15428/16 – Can I see it ? No you can’t ! Refusal to grant journalist access to Hungarian Reception Centre for asylum seekers contrary to the right to freedom of expression.
In the case Szurovecz v. Hungary the Court dealt with the issue of media access to reception facilities for asylum seekers. It held that refusing journalist access to a reception centre, which was meant to gather information on the living conditions of asylum seekers accommodated therein, was in breach of the right to freedom of expression protected under Article 10 ECHR. For the Court, journalistic research and newsgathering represent an essential component of investigative journalism and thus an inherent and protected part of press freedom. The “watchdog” role of the media is crucial and assumes even more importance in matters of great public interest, such as the treatment of asylum seekers arrived and hosted in Europe.
Ordinary Tribunal of Rome, 21 February 2019, X v. Ministry of Foreign Affairs and Ministry of Health – A “way out” of the human rights situation in Libya: the humanitarian visa as a tool to guarantee the rights to health and to family unity.
In the case X v. Ministry of Foreign Affairs and Ministry of Health the Ordinary Tribunal of Rome ordered the issuing of a visa on humanitarian grounds pursuant to Article 25(1)(a) of the EU Visa Code in favour of a Nigerian unaccompanied minor in Libya who was in urgent need of medical treatment, in this way allowing him to legally and safely travel to Italy, have access to a proper health care and join the mother who was residing there. The Italian judges ruled that, under certain circumstances, the provision of the Visa Code regarding the humanitarian visa may be directly invoked before the domestic jurisdictions and immediately applied, without needing further implementing acts and notwithstanding the possible denial of a visa by the diplomatic authorities. The issuing of the humanitarian visa represents for the minor the “way out” of his situation in Libya and becomes a tool to guarantee the effective protection of the rights to family unity and to health.
ECHR, 6 November 2018, K.G. v. Belgium, Appl. No. 52548/15 – Detention of an asylum seeker for reasons of public security: no violation of the right to liberty in the presence of a proper individualised necessity test
In K.G. v. Belgium the ECtHR dealt with a case concerning an asylum-seeker placed and kept in detention for security reasons for approximately 13 months, while his asylum application was pending. The Court found no violation of the applicant’s right to liberty as protection of public safety had justified his detention, moreover the applicant’s state of health had been properly assessed and taken into account with regard to his detention conditions. Lastly, in light of all the relevant circumstances of the case, the Court did not consider the duration of the applicant’s detention as excessive and unreasonable.
C.J.U.E., judgment of 25 July 2018, SERIN Alheto, c-585/16, EU:C:2018:584 – Palestine refugees in the European Union: Member States must verify the effectiveness of the protection from UNRWA through an exhaustive and up-to-date examination.
In the case Serin Alheto the Court of Justice deals with the issue of applications for international protection lodged in a Member State by a particular category of refugees: Palestinians registered with the United Nations Relief and Works Agency for Palestine Refugees in the Near East (“UNRWA”). In consideration of the very peculiar status accorded to such persons, the Court states that, in principle, a Palestinian who already has the refugee status from UNRWA and then later applies for international protection in a Member State cannot obtain the refugee status in the European Union, as long as he or she is receiving effective protection from such UN ad hoc agency. The protection granted to a Palestinian refugee from UNRWA, however, must exist not only in theory, but must be effective and real. The competent authorities of the Member States, therefore, must conduct an exhaustive and up-to-date examination of the application lodged by a Palestinian refugee in order to ascertain whether he or she is actually receiving effective protection from UNRWA.
Judgment of the European Court of Human Rights in the case J.R. and others v. Greece (Appl. No. 22696/16). Detention of migrants with the view to implement the EU-Turkey Statement: the Court of Strasbourg (un)involved in the EU migration policy.
In its judgment J.R. and others v. Greece the Court of Strasbourg deals for the first time with the implementation of the EU-Turkey Statement, assessing the circumstances and the conditions of the detention of three Afghan nationals in the Greek hotspot on the island of Chios. The Court ruled that the applicants’ deprivation of liberty in view of the implementation of the EU-Turkey Statement could not be regarded as arbitrary and unlawful, however they had not been properly informed about the reasons of their detention and the remedies available to challenge it. As to the living conditions in the Greek hotspot, despite multiple reports of national and international organisations denouncing the overcrowding and the poor standards of living, the Court found that they were not severe enough to amount to inhuman or degrading treatment.
ECtHR, 9 January 2018, X v. Sweden, Appl. No. 36417/16. National security and expulsion of a suspected terrorist; protection of human rights prevails over security.
With its judgment in the case X v. Sweden, the Court of Strasbourg deals with the issue of national security and human rights, assessing, in particular, the compatibility with the European Convention of Human Rights of the decision adopted by Sweden to expel a suspected terrorist to his home country, Morocco. The Court found that, in the light of the peculiar circumstances of the case, there are no sufficient elements to exclude that the applicant, if expelled, would face the risk of being subjected to torture or inhuman or degrading treatment prohibited under Article 3 of the Convention. For this reason, under Rule 39 of its Rules of Court, the Court also indicates to Sweden the interim measure not to proceed with the enforcement of the expulsion.
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