Singh and Others v. Belgium (no. 33210/11)[Articles 3 and 13-Rule 39]

Date: 
Friday, October 4, 2013

The applicants, Nam Singh, Meena Kaur and their three children are Afghan nationals who reside in Sint-Gillis (Belgium). The applicants arrived in Belgium in March 2011 on a flight from Moscow. As they did not have the legally required documents, they were refused entry into Belgium and the Aliens Office issued directions for their removal. The applicants, at the same time, applied for asylum. They told the Belgian authorities that they were Afghan nationals, members of the Sikh minority and had fled Afghanistan for India in 1992 because of the attacks and kidnappings endured by the Sikh and Hindu communities at that time. They had later taken refuge in Moscow. In 2009 the applicants had apparently returned to Kabul, but had not felt safe there and had fled to Belgium. On 13 April 2011 the Officer of the Commissioner General for refugees and stateless persons (CGRA) rejected their applications on the ground that they had not proved their Afghan nationality. On 24 May 2011 the Aliens Disputes Board (“CCE”) dismissed the applicants’ appeals and clearly confirmed the CGRA’s reasoning, agreeing with it that the applicants had been unable to prove their Afghan nationality or the veracity of the protection granted to them by the UNHCR. The European Court of Human Rights having indicated an interim measure (Rule 39), preventing their removal to Russia for the duration of the proceedings before it, the applicants were given leave to remain in Belgium. The applicants allege that their removal to Moscow entails a real risk of refoulement to Afghanistan, where they would face treatment in violation of Article 3.

The Court found:
-Regarding Articles 3 and 13:

The Court observed that the risk of removal to Russia had been suspended with the implementation by the Belgian Government of the interim measure indicated on 30 May 2011. However, the applicants’ status had not changed since there was still a removal order against them and they were obliged to leave Belgium.  The Court found that the applicants’ fear that the Russian authorities might send them back to their State of origin was not manifestly ill-founded. It noted that the applicants had arrived at the Belgian border with identity documents and copies of pages from two Afghan passports and that copies of UNHCR attestations had subsequently been produced. The Court had before it a number of reports about discrimination and violence against the Sikh minority in Afghanistan. In the light of that material, it found that the applicants’ allegations called for a detailed examination by the Belgian authorities and that their complaints under Article 3 were thus “arguable”. In view of the importance that the Court attached to Article 3 and the irreversible nature of the potential harm, Article 13 required close and rigorous scrutiny of individual situations by the reviewing authority. To that end, it was not sufficient for that authority to place itself artificially at the time of the removal decision in order to assess its validity under Article 3. Moreover, in order to be effective, a domestic remedy must have automatic suspensive effect, staying the execution of the removal order. As there was no effective remedy available to the applicants, they could not be criticised for not having expressed their fears of refoulement from Russia to Afghanistan at the time the measure was notified on 19 March 2011. In addition, the asylum bodies had not sought to ascertain whether there were any risks for the applicants under Article 3 of the Convention. The CGRA had not made any additional inquiries, for example to authenticate the identity documents presented. The CCE had not made up for that omission, whereas the documents presented to it by the applicants had been capable of dispelling the doubts expressed by the CGRA as to their identities and previous movements. The CCE had given no weight to those documents on the grounds that they were easy to falsify and the applicants were not able to supply the originals.


The Court found that the documents presented to the CCE had not given rise to any investigation. The fact that both the CGRA and the CCE had dismissed those documents, which were pertinent for the protection request, finding them to have no probative value and without verifying their authenticity as they could easily have done by contacting the UNHCR, was at odds with the close and rigorous scrutiny that the Court would have expected of the domestic authorities, which had thus failed to ensure effective protection against treatment in breach of Article 3


-Regarding Rule 39:
The Court considered that the interim measures indicated to the Government under Rule 39 of the Rules of Court would continue in force until the present judgment became final or until another related decision was taken by the Court.


-Just satisfaction:
The Court held that the finding of a violation provided in itself sufficient just satisfaction for the non-pecuniary damage sustained and that Belgium was to pay the applicants 3,000 euros in respect of costs and expenses.

For the full text of the judgment please visit: ECtHR: Singh and Others v. Belgium (no. 33210/11)


For the full text of the press release on the judgment please visit: ECtHR Press Release: The rejection of asylum seekers’ documents without verifying their authenticity breached their human rights


This item was reproduced with the permission of ECRE from the weekly ELENA legal update supported by the Fundamental Rights and Citizenship Funding Programme and distributed by email. The purpose of these updates is to inform asylum lawyers and legal organizations supporting asylum seekers and refugees of recent developments in the field of asylum law. Please note that the information provided is taken from publicly available information on the internet. Every reasonable effort is made to make the content accurate and up to date at the time each item is published but no responsibility for its accuracy and correctness, or for any consequences of relying on it, is assumed by ECRE, the IRC or its partners.

                                                     

 

Keywords: 
Assessment of facts and circumstances
Obligation/Duty to cooperate
Burden of proof
Relevant Documentation
Standard of proof
Inhuman or degrading treatment or punishment
Effective remedy (right to)
Right to remain pending a decision (Suspensive effect)
Tags: 
ECtHR
Switzerland