ECtHR - Budrevich v. the Czech Republic, Application No. 65303/10

The lack of close and rigorous scrutiny during the relevant period by the Czech authorities of the Applicant’s claim that expulsion would violate his rights under Article 3, including the ignoring of an important judgment blocking his extradition, constituted a violation of Article 13 in conjunction with Article 3.

Facts:

The Applicant, from Belarus, sought asylum under an assumed name in the Czech Republic in 2006 due to a fear of imprisonment for importing advertisements in support of an opposition candidate in the presidential elections. He alleged he had been fined and detained for 45 days, had his car and passport confiscated, and had his house searched multiple times. He alleged that, since his departure, the police had warned his sister and mother that he would be prosecuted. The Czech Ministry of the Interior rejected his original request as not credible and contradictory in 2007. They noted that his importation of advertisements was a one-off instance for financial profit, for which he had already been prosecuted and convicted. They did not believe that the Applicant was politically active and faced future prosecution.

This decision was upheld on appeal in 2008 by the regional court, who noted that his importation of other non-political goods undermined the allegedly political nature of his persecution. His appeal to the Supreme Administrative Court in 2009 was also rejected, this time due to a failure to give grounds of appeal.

Throughout 2010, the Applicant made three subsequent concurrent requests for asylum, which were all rejected. The final request, however, resulted in the granting in October 2011 of subsidiary protection under s.12 of the Asylum Act, in light of recent developments following President Lukashenko’s re-election. This protection was then extended in June 2013 for 24 months, with the possibility of further extension.

There were expulsion and extradition proceedings against the Applicant alongside the asylum proceedings. His commission of several criminal offences of theft in 2008 and 2009 resulted in an expulsion order. However, in 2010, a Rule 39 Interim Measure halted his removal to Belarus. The extradition request from Belarus, issued in 2009, was rejected as inadmissible by the regional court in 2010 due to country of origin information that evidenced a risk of criminal proceedings contravening Articles 3 and 6 ECHR.

The Applicant complains before the ECtHR that his removal to Belarus would violate Article 3 and that the Czech authorities have not provided him with an effective remedy against removal, contrary to Article 13.

Decision & Reasoning:

The Court began by deciding that the relevant time for considering a complaint under Article 3 is the time at which the Court examines the case. It went on to rule that the Applicant, upon being granted subsidiary protection in 2011, which prevents deportation, had lost his status as a victim. In light of this finding, the Court discontinued the Rule 39 Interim Measure.

However, the Court found in favour of the Applicant on Article 13 in conjunction with Article 3. The Court described the present case as an exceptional situation, in that the facts forming the basis of his Article 3 objection to expulsion – criminal proceedings in Belarus for drugs-related offences - only became known to him after the two expulsion orders (arising from the criminal proceedings) became final. The Court therefore excluded from consideration the ordinary remedies within the criminal proceedings. The Court also noted that the regional court’s inadmissibility ruling in April 2010 on the extradition request changed the factual circumstances. The Court therefore decided that the period for consideration of Article 13 was from April 2010 (the date of the regional court ruling) to October 2010 (when the custodial sentence ended and expulsion could be executed).

The Court then reviewed the available remedies for this period. The first asylum proceedings, which had automatic suspensive effect, were concluded before this period and therefore were unavailable. The Court ruled that neither the availability of a request of waiver against the expulsion orders, nor an administrative appeal, constituted an effective remedy because neither remedy was suspensive. The Court finally considered the effectiveness of the remedy of making a fresh asylum application. The Court noted that the suspensive effect of the Applicant’s fresh asylum request during the relevant period was Article 13 compliant in theory, but not in practice. This was chiefly because the Czech Interior Ministry did not subject the asylum request during this period to a ‘close and rigorous scrutiny’ of the risk of treatment contrary to Article 3, as required by Article 13 in this context. In particular, the Ministry made no mention of the important judgment of the regional court that dismissed the extradition request.

Outcome:

Violation of Article 13 in conjunction with Article 3. No violation of Article 3. Rule 39 Interim Measure lifted.

The finding of a violation constituting adequate redress, no award of damages for non-pecuniary loss was granted. No award for costs and expenses was made, due to a lack of supporting documents.

Subsequent Proceedings :

In September 2015 the CoE Committee of Ministers adopted a final resolution (CM/ResDH(2015)135) wherein it found that adequate execution measures had been adopted. In this respect, the Court noted that the subsidiary protection of the applicant was extended until 24 July 2017 and that he will have the possibility to apply for a further extension of this protection with a new assessment of a risk of ill treatment.

Due to the absence of any systemic problem in the Czech legal framework, the Court considered that no general measure to prevent future violations was necessary.

Case Law Cited:

ECtHR - Ghosh v. Germany, Application No. 24017/03

ECtHR - M.S.S. v Belgium and Greece [GC], Application No. 30696/09

ECtHR - Jabari v Turkey, 11 July 2000, (Application no. 40035/98)

ECtHR - I.M. v France, Application No. 9152/09 - unpub

ECtHR - De Souza Ribeiro v France [GC], Application No. 22689/07

ECtHR - Diallo v. the Czech Republic, Application No. 20493/07

ECtHR - Sufi and Elmi v. the United Kingdom, Application Nos. 8319/07 and 11449/07

ECtHR - Nasrulloyev v. Russia, Application No. 656/06

ECtHR - Y.P. and L.P. v. France, Application No. 32476/06

ECtHR - Husák v. the Czech Republic, Application No. 19970/04

ECtHR - Kozhayev v. Russia, Application No. 60045/10