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

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Country of Applicant: 
Guinea
Date of Decision: 
28-11-2011
Citation: 
20493/07
Court Name: 
European Court of Human Rights - Fifth Section
Headnote: 

This case concerned access to an effective remedy in the context of expulsion proceedings from the Czech Republic. It deals with access to an effective remedy and the reliance on Art. 13 ECHR for arguable claims under Article 3 ECHR on the basis that the Appellants would be ill-treated if returned to Guinea. The Court held that there was a violation of Article 13 of the Convention in conjunction with Article 3.

Facts: 

This case concerned two Applicants. The first Applicant, Mr. Ibrahima  Diallo arrived in Prague airport by plane from Dakar (Senegal) having transferred in Lisbon. He applied for asylum in the Czech Republic but the Czech authorities dismissed his application as ‘manifestly unjustified’ without examining the merits on the basis that the Applicant had first arrived in a safe third country, Portugal. An administrative expulsion order was issued against him and his appeal was rejected. On 15 May 2007 and without prior notice, he was removed from the Czech Republic to Guinea by plane via Brussels. The second Applicant, Mr. Mamadou Dian Diallo arrived via Lisbon as well and his asylum request was dismissed on the basis that he arrived from Portugal, a safe third country. Upon appeal to the Prague Regional Court, the Court upheld the decision not to grant Mr. Diallo asylum and he was removed from the Czech Republic to Guinea via Brussels. The Appellants complained that they had no effective remedy for their arguable claim under Art. 3 that they would be ill-treated if returned to Guinea and relied on Art. 13 ECHR.

Decision & Reasoning: 

In terms of admissibility, the Court found that, as the second Appellant’s application form was signed by his lawyer along with a power of attorney signed by the Applicant himself, the Appellant had sufficiently demonstrated that he wished his lawyer to act on his behalf and the application cannot be rejected as incompatible ratione personae pursuant to Art. 35 of the Convention. The State claimed that application should be struck off the list as the client had lost interest in the case due to lack of contact but the Court observed (para. 44) that the inability of the lawyer to contact his client was a direct consequence of the State’s action in expelling the latter to Guinea without any prior notice. Therefore, the Court distinguished this from the cases referred to by the government and dismissed the government’s objection. The State then maintained that there had been non-exhaustion of domestic remedies in the case. The Court noted that Art. 13 ECHR guarantees the existence of effective domestic remedies, which the Applicants must normally exhaust under Art. 35 of the Convention before lodging their application with the Court. The Court provided reasoning as to the effect of Art. 13 and held that ‘the question whether the remedies suggested as effective for Art. 13 claims would 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.’

The Court, in determining whether substantial grounds have been shown for believing that a real risk of treatment contrary to Art. 3 exists, will assess the issue in light of all the material placed before it or, if necessary, material obtained proprio motu (para. 66). In examining the facts of the case the Court took account of the various reports that documented serious human rights violations in Guinea. The Court reiterated that an arguable claim does not entail certainty and that, given the available information on the human rights situation there and the personal circumstances of the Applicant, the Court considered that their fears were subjectively well-founded and genuinely perceived as such. Accordingly, the claims were found to be arguable under Art. 3 for the purposes of Art. 13 ECHR. The complaint was therefore found to be admissible. As regards the merits, given the irreversible nature of the harm which might occur under Art. 3 ECHR, the notion of an effective remedy under Art. 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 Art. 3 in the event of the Applicant’s expulsion to the country of destination, and (ii) a remedy with automatic suspensive effect. Regarding the asylum proceedings at the national level, the Court noted that their asylum applications were rejected by the Ministry of the Interior with a consideration on the merits on the basis that they had arrived from a safe third country, Portugal. The Court noted that the Applicants were eventually expelled to their country of origin and not Portugal. It held that there was no close and rigorous scrutiny of their claim by the Ministry of the Interior as required by the Convention or in fact any scrutiny at all. The Court noted that a constitutional appeal would not have had an automatic suspensive effect either. In light of this and the individual circumstances of both Applicants (Para. 78-79), the Court considered that the asylum proceedings did not provide the Applicants with an effective domestic remedy within the meaning of Art. 13 ECHR. Regarding the administrative expulsion proceedings the Court also noted that none of the authorities examined the merits of the Applicants’ arguable claim under Art. 3. In terms of judicial review it took into account that the Constitutional Court would not have reviewed the merits of the claim and that it did not have automatic suspensive effect so they would have been liable for deportation at any time. The same points were taken into account regarding a direct constitutional appeal claiming a violation of Art. 3 ECHR. In view of that, the Court found that there was a violation of Art. 13 taken in conjunction with Art. 3.

The Applicants also complained that removing them without prior notice meant that 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 Art. 34 of the Convention. With respect to this, the Court noted that the Applicants had complained that their rights under Article 13 in conjunction with Art. 3 had been violated. They did not allege a violation of Art. 3 itself in which case it might have been appropriate to request an interim measure. Consequently, the Court held that the fact that they could not ask for an interim measure to stay their expulsion under Art. 3 does not raise an issue in this case. The Court also found that the Respondent State had not failed to comply with its obligations under Art. 34.

As regards damage, the Court found that since ‘no national authority subjected to close scrutiny the Applicants’ arguable claims under Art. 3’ then in those circumstances the Court considered that ‘the Applicants suffering and frustration cannot be compensated for by a mere finding of a violation.’ The Court awarded the first Applicant 5000 Euros. Regarding the second Applicant, the Court noted that his whereabouts were unknown, therefore the decision with respect to him under Art. 41 was reserved.

Outcome: 

Violation of Art. 13 ECHR in conjunction with Art. 3 ECHR found.

Subsequent Proceedings : 

On 26 April 2012 the Court delivered its judgment of a friendly settlement with respect to the second Applicant. The Court received a friendly settlement declaration signed by the parties under which the second Applicant agreed to waive any further claims against the Czech Republic in respect of the facts giving rise to the application. Accordingly the remainder of the case was stuck out of the list. http://hudoc.echr.coe.int/sites/eng/pages/search.aspx?i=001-110689

Case Law Cited: 

ECtHR - McParland v UK, Application No. 47898/99

Czech Republic - Constitutional Court, 9 December 2008, Pl. US 26/07

ECtHR - Shamayev v Georgia (April 2005) (Application no. 36378/02)

ECtHR - McFarlane v Ireland [GC], Application No. 31333/06

ECtHR - Kudla v Poland [GC], Application No. 30210/96

ECtHR - Baysakov and Others v. Ukraine, Application No. 54131/08

ECtHR - Boyle and Rice v. the United Kingdom, Application Nos. 9659/82 and 9658/82

ECtHR - Muminov v. Russia, Application No. 42502/06

ECtHR - K.M. and Others v Russia, Application No. 46086/07

ECtHR - Svinarenkov v Estonia, Application No. 42551/98

ECtHR - Ivan Kuzmin v Russia, Application No. 30271/03

ECtHR - Chirino v the Netherlands, Application No. 31898/04

ECtHR - Ali v Switzerland, 5 August 1998, Reports 1988-V

ECtHR - Noor Mohammed v the Netherlands, Application No. 14029/04

ECtHR - Ramzy v the Netherlands, Application No. 25424/05

ECtHR - Nehru v the Netherlands, Application No. 52676/99

ECtHR - Bolgov v Russia, Appliation No. 28780/03

ECtHR - Mamatkulov Askarov v Turkey, Applications nos. 46827/99 and 46951/99
Other sources cited: 

Relevant reports pertaining to the situation in Guinea: A) Documents drawn up in the context of the Universal Periodic Review by the United Nations Human Rights Council; B) US Department of State Human Rights Reports on Guinea; C) Amnesty International Reports on Guinea; D) Human Rights Watch Reports on Guinea

Authentic Language: 
English
State Party: 
Czech Republic
National / Other Legislative Provisions: 
ECHR Rule 39 on interim measures
Czech Republic - Asylum Act (325/1999 Coll.)
Czech Republic - Aliens Act (326/1999 Coll.)