ECtHR- Singh and Others v. Belgium, Application no. 33210/11, 2 January 2013

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Country of Applicant: 
Afghanistan
Date of Decision: 
02-01-2013
Citation: 
ECtHR- Singh and Others v. Belgium, Application no. 33210/11, 2 January 2013
Court Name: 
European Court of Human Rights Second Chamber
Headnote: 

The case examined the allegations of the applicants that their deportation to Moscow will entail a real risk of refoulement to Afghanistan where they fear treatment contrary to Article 3 of the Convention.  Further, it examined the applicants’ complaints of a violation of their right to an effective remedy in conjunction with Article 3, invoking Article 13 of the Convention.

Facts: 

The applicants, five Afghan nationals, arrived in Belgium in March 2011 on a flight from Moscow and were refused entry in the country as they did not have the requisite documents. The Aliens Office ordered their removal on 19 March 2011 and they applied for asylum at the same time.  A decision to be kept in a specific place was also taken at the same day.

Before the Belgian authorities, they alleged that they were Afghan nationals, members of the minority Sikh and fled Afghanistan in 1992 for India because of the civil war and the attacks and kidnappings of Sikh and Hindu communities at the time. In 2009, after the Russian authorities closed the business where the first applicant was working, they returned to Kabul and due to their feeling of insecurity, they had fled to Belgium.

The Office of the Commissioner General for Refugees and Stateless Persons (“CGRA”) rejected their applications for recognition of refugee status or subsidiary protection on the grounds that they had not proven their Afghan nationality and that they were travelling with false passports. Finally, it ruled the declarations of the applicants in relation to their stay in India and their demands for naturalisation were false. The applicants appealed against these decisions, presenting new documents in evidence.

The Council for Alien Law litigation (CALL) upheld the decision of the CGRA. The procedure of asylum was closed and their return date to Moscow was set on 30 May 2011. On that day, the applicants applied to the Court for an interim measure under Rule 39 of the Rules of Court in view of suspending their removal, which was granted for the duration of the proceedings before it. The applicants, no longer being subjected to an enforceable refoulement measure, were allowed to enter Belgium and were subsequently released from the transit zone.

Decision & Reasoning: 

With regards to the alleged violation of Article 13 in relation to the applicants’ refoulement, the Court noted that such violation was lifted at the moment where the risk of removal to Russia had been suspended in application of the interim measure of 30 May 2011 [81]. Regarding the possibility that the applicants be admitted-voluntarily or otherwise-from India, the Court observed that the Belgian government hadn’t submitted any convincing argument that this could be a realistic alternative. It further highlighted that the Belgian authorities appear not to have examined the risks of treatment contrary to Article 3 in case of return of the applicants to a third country [83].

Concerning their fears in Afghanistan, the Court took note of the existing reports showing that the ethno-religious minority of Sikh was and continued to be subjected to discrimination, harassments and violence [87].

The general principles governing the effectiveness of remedies and guarantees provided by the Contracting States in case of deportation of an asylum seeker under Articles 3 and 13 of the Convention include the availability and accessibility of recourse in law and practice, the competence of the national body to examine the contents of the complaint and offer the appropriate remedy and the automatic suspensive effect of the recourse [90-92]. In the case at hand, the Court concluded that the recourse against the measure of removal was not automatically suspensive from the execution of the measure of removal and therefore did not fulfil one of the requirements of Article 13 read in conjunction with Article 3 [97].

It further noted that neither CGRA nor CCE examined whether the applicants were at risk within the sense of Article 3, noting that this aspect was overshadowed at the level of CGRA by the examination of the applicants’ credibility and doubts concerning the veracity of their declarations. The CGRA had not made additional enquiries, for example to authenticate the identity documents presented, while the CCE had not made up for that omission. In its view, the documents submitted by the applicants had been capable of dispelling the doubts expressed by the CGRA as to their identities and previous movements. [100-101].

Therefore, it found a violation of Article 13 in conjunction with Article 3 of the Convention, given that the Belgian authorities did not examine  the merits of the applicants’ complaints under Article 3 in accordance with the requirements of article.

Outcome: 

Violation of Article 13 in conjunction with Article 3

Case Law Cited: 

ECtHR- Çelik and İmret v. Turkey, Application No. 44093/98

ECtHR - Yoh-Ekale Mwanje v Belgium, Application No 10486/10

ECtHR - Selmouni v. France [GC], Application No. 25803/94

ECtHR - Guerra and Others v. Italy, 116/1996/735/932

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

ECtHR - Çakici v. Turkey [GC], Application No. 23657/94

ECtHR - Conka v Belgium (Application no. 51564/99)

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

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

UN High Commissioner for Refugees (UNHCR), Eligibility Guidelines for Assessing the International Protection Needs of Asylum-Seekers from Afghanistan, 17 December 2010

UN High Commissioner for Refugees (UNHCR), Afghan Hindus and Sikhs : their situation and recommendations for the assessment of claims, July 2011

IRIN, Afghanistan : Focus on Hindus and Sikhs in Kandahar, 17 June 2002

UN Commission on Human Rights, Final report on the situation of Human Rights in Afghanistan, Special rapporteur, E/CN.4/1993/42, 18 february 1993

United Kingdom: Home Office, Operational Guidance Note: Afghanistan, March 2011

UNHCR, Global Appeal 2011, India, Update

European Committee for the Prevention of Torture and Inhuman and Degrading Treatment or Punishment (CPT), Conclusions and Observations of the 4th Periodic Report of the Russian Federation, 6 February 2007

U.S. Committee for Refugees and Immigrants, World Refugee Survey 2009 - Russian Federation, 2009

Authentic Language: 
French
State Party: 
Belgium
National / Other Legislative Provisions: 
Belgium-Royal Decree of October 1981 on access to the territory
residence
establishment and the removal of aliens
Law of 15 December 1980 on entry
stay
settlement and removal of foreign nationals
Belgium - de Grondwet / la Constitution (Constitution) - Art 144
Belgium - de Grondwet / la Constitution (Constitution) - Art 145