Tuesday 23 April 2013

New Case Law Developments in Removal and Extradition

Last week, the European Court of Human Rights issued two judgments and an important decision, all dealing with state-enforced transfer of people from one state to another. One case is about the extradition of a suspected criminal to the United States, another about the extradition of an asylum seeker to Chad, and yet another about the removal of an asylum seeker to Italy. For the readers convenience, I shortly mention them here:

* In Aswat v. the United Kingdom the Court held that a detainee with paranoid schizophrenia could not be extradited to the United States. Aswat, who had been charged in the US as a co-conspirator in a conspiracy to establish a jihad camp in Oregon, would have face potentially very high penalties and possible detention in solitary confinement in a maximum security facility. What is interesting about this judgment is that these latter factors by themselves would not subject a person extradited to the US to treatment contrary to Article 3 ECHR. Indeed, the Court had decided this in Babar Ahmad and others v. the United Kingdom, earlier this month (a case from which Mr Aswat's case was originally part, but later detached). In Aswat the Court is therefore as explicit as it possibly can to stress that his mental condition was the sole reason that he could not be extradited. In the UK he was detained in a high security psychiatric hospital. As the Court noted, a "different, and potentially more hostile, prison environment would result in a significant deterioration in his mental and physical health" (para. 57) to he extent of potentially reaching the Article 3 threshold.

* In Mo.M. v. France, the Court held that France could not send back to Chad an asylum seeker whose request for asylum had been rejected. The applicant had argued that he would face a real risk of inhuman and degrading treatment if being sent back to Chad, since he was suspected of having collaborated with the rebels in neighbouring Darfur in Sudan and had earlier already been tortured in Chad. On the general situation, the Court noted that in spite of a peace agreement between Chad and Sudan, the situation remained very tense, with all the accompanying risks for people suspected of collaboration. On the applicant's personal situation the Court held that medical certificates indeed established hat he had been tortured and that his particular profile (an arrest warrant having been issued against him in Chad and his open activities in France for a Chadian opposition party), made the risk of ill-treatment real. One may note that the Court also chastises the French authorities: the Court normally does not want to place itself in the shoes of the national authorities to adjudicate such a situation, but since the asylum request was refused without much explanation ("une motivation très succincte" and "aucun élément explicatif", para. 41) it is different here. National authorities, it once more becomes clear should thus argue their decisions, also in asylum cases. In addition, the Court indicates that although the applicant had initially requested asylum under a false identity - and no matter how much also the Court may criticise that - this in itself is not a sufficient reason to reject an asylum claim if there is evidence presented during such a demand for asylum that a real risk of treatment contrary to Article 3 exists (para. 41). Since this latter issue is a problem in many state parties, this part of the judgment may prove to be important for the practice of dealing with asylum claims. This judgment is available only in French, but a press release in English is available here.

* Finally, the Court also declared a complaint inadmissible: Mohammed Hussein v.the Netherlands and Italy. In many ways this is a situation comparable to the now famous M.S.S. v. Belgium and Greece case of last year, in which the Court held both states to account. Here as well, the European Union's Dublin Regulations, which provide that an asylum seeker can be returned to the first country of entry in Europe in order to process the asylum request there, were the trigger for the situation. A Somali asylum seeker (originally alone, but since then two children were born) had entered Europe through Italy and then travelled on to the Netherlands. The Court held that even though there were shortcomings in Italy's reception schemes for asylum seekers, these were not so deficient or systematic that they reached the threshold of Article 3 (and here one may note a stark contrast with the Courts' conclusions on conditions in Greece in M.S.S.). Although the Court also assessed the personal situation of Ms Mohammed Hussein, the decision will more generally be important for all states who under the Dublin regulations are in the process of sending people back to Italy.

For an up-to-date discussion of migration and returns in the EU context, with comparisons to US and ECHR case-law, see: Nicholas Hatzis, 'Detention of Irregular Migrants and the European Public Order', European Law Review, issue 2 (2013) pp. 259-276.