Europe

ECHR Rules Spain Did Not Breach the Convention in Returning Migrants to Morocco

By: Nadia Abed

Journal of Global Rights and Organizations, Associate Articles Editor

STRASBOURG, France — On February 13, 2020, the European Court of Human Rights (“ECHR”) ruled that Spain did not breach the European Convention on Human Rights (“the Convention”) in returning migrants to Morocco for attempting to cross the fences onto European Union territory in the case of N.D. and N.T. v. Spain.

Police office scales fence climbed by migrants at Melilla border. Photo Courtesy of AFP.

On August 13, 2014, hundreds of migrants attempted to storm their way onto European Union territory by scaling fences to reach the city of Melilla, a Spanish enclave surrounded by Moroccan territory. Moroccan police were able to prevent about 500 migrants from scaling the outer fence, but around a hundred migrants succeeded, with 75 migrants reaching the top of the fence and a few landing on the other side on Spanish soil. Those who reached the soil were met by members of the Guardia Civil, the Spanish law enforcement, while others remained at the top of the fence.

Two individuals, N.D., a national of Mali, and N.T., a national of Côte d’Ivoire (“the applicants”), were of the few that remained at the top of the fence. After a few hours, the two climbed down and were apprehended by the Guardia Civil who “reportedly handcuffed them, took them back to Morocco and handed them over to the Moroccan authorities.”

The applicants lodged applications with the ECHR on February 12, 2015 alleging that there had been a violation of Protocol No. 4 Article 4 which prohibits collective expulsion of aliens and Article 13 which secures the right to an effective remedy. Through both Articles, the applicants claim that they were forced back to Morocco with “no chance to explain their circumstances, no chance to request asylum, and no chance to appeal their expulsion.”

On October 2, 2017, in its Chamber judgment, the Court held that there was a violation of Article 4 of Protocol No. 4 and a violation of Article 13 in conjunction with Article 4 of Protocol No. 4. On December 14, 2017, the Spanish Government requested the case be referred to the Grand Chamber under Article 43 of the Convention. On January 29, 2018 the Grand Chamber accepted and a hearing was held on September 26, 2018.

The Court reasoned that the applicants had attempted to enter Spanish territory in an unauthorized manner by taking advantage of a large crowd. In accordance with the Convention, States are required to “make available genuine and effective access to means of legal entry [and] should allow all persons who faced persecution to submit an application for protection.” As a result of not using the proper channels, States can refuse entry to their territories to aliens and asylum-seekers who fail, without convincing reason, to follow such requirements.

Regarding the applicants Article 4 of Protocol No. 4 claim, the Court noted that Spanish law had several possible means available to those seeking admission to their territory, such as applications for visas or international protection, therefore the State had provided genuine and effective access to its territory. Applicants’ did not allege they tried to enter Spanish territory by any legal means. The court concluded that the applicants had “placed themselves in jeopardy by participating in the storming of the border fences [and their expulsion was a] consequence of their own conduct.”

Regarding the applicants’ Article 13 claim taken in conjunction with Article 4 of Protocol No. 4, the Court explains that “the lack of an [individualized] procedure for [the applicants’] procedure for their removal had been the consequence of the applicants’ own conduct in placing themselves in an unlawful situation by crossing the Melilla border protection structures… at an [unauthorized] location.” Further, the Court concluded that there had not been a violation of Article 4 of Protocol No. 4 or Article 13 in conjunction with Article 4 of Protocol No. 4.

European Court of Human Rights – Forthcoming Grand Chamber judgment in a case concerning the immediate return of two migrants who tried to enter Spain by climbing the fences of the Melilla enclave – 6 Feb. 2020

European Court of Human Rights – Spain did not breach the Convention in returning migrants to Morocco who had attempted to cross the fences of the Melilla enclave – 12 Feb. 2020

European Court of Human Rights – Case of N.D. and N.T. v. Spain – 12 Feb. 2020

The Local Spain – Spain cleared by European Court of Human Rights over Removal of migrants at border fence – 13 Feb. 2020

European Court of Human Rights Hears Syrian National’s Case for Family Reunification

By: Melissa Berouty

Journal of Global Rights and Organizations, Associate Articles Editor

STRASBOURG, France — On March 18, 2020, the Grand Chamber of the European Court of Human Rights (“ECHR”) will hear the case of M.A. v. Denmark, regarding the denial of family reunification. According to the Council of Europe Commissioner of Human Rights (“the Commissioner”), “[f]amily reunification procedures allow foreign nationals residing in Council of Europe member states to request permission to bring members of their family to join them, and to re-establish family life on the territory of their member state of residence.” The Commissioner has stated that family separation of individuals with international protection has been the root of “depression, anxiety, and feelings of guilt for leaving family members behind in dangerous situations.” These subsequent effects lead to difficulty in integration, including breaking through potential language barriers. Commonly, the integration process does not fully commence until the family reunification process is complete.

In January 2015, M.A., the applicant and a Syrian national, entered into Denmark seeking asylum. M.A. was granted temporary protection for a one-year period, under Section 7, subsection 3 of the Aliens Act, which offers protection for “individuals who face capital punishment, torture or inhumane or degrading treatment or punishment due to severe instability and indiscriminate violence against civilians in their home country.” Since then, M.A.’s residence permit has been extended in one-year increments.

In November 2015, M.A. requested to be reunited with his wife of twenty-five years, who was residing in Syria. Typically, under Danish law, an individual with temporary protection under section 7, subsection 3 of the Aliens Act must have a residence permit for more than three years for family reunification. Given this, in September 2016, M.A.’s request was denied by the Immigration Appeals Board, given the standard set by Danish law and a lack of “special reasons” to justify family reunification before the three-year threshold.

Following the denial of his application in early 2017, M.A. filed a complaint arguing that Denmark’s refusal of a family reunion was a direct violation of his rights under the European Convention on Human Rights (“the Convention”). M.A. argues that Danish law is discriminatory given that if he had been offered a “higher degree of protection,” he would be eligible for a family reunion within one year rather than three. In May 2017, the High Court of Eastern Denmark ruled against M.A.

On appeal, the Supreme Court upheld the High Court of Eastern Denmark’s decision. Here, the Supreme Court found no violation of the Convention stating, “the difference in treatment in the right to a family reunion had been justified by the fact that some groups of individuals had required greater protection.” On January 30, 2018, M.A.’s case was brought before the ECHR.

Here, M.A. again claims a violation of his rights under the Convention, specifically prohibition of discrimination under Article 14 in conjunction with the right to a family life under Article 8. On September 7, 2018, the Danish government was given notice, pursuant to Rule 54 of the local Court Rules, that “an application against the State is pending before the Court.” On November 19, 2019, jurisdiction was relinquished to the Grand Chamber of the ECHR.

According to the Commissioner, Denmark’s family reunification laws and policies have been in discussion for nearly fifteen years. In January 2016, the Commissioner’s predecessor contacted the Danish Minister expressing concerns over the waiting periods set forth in section 7, subsection 3 of the Aliens Act, particularly in its compatibility with Article 8 of the Convention. On January 31, 2019, the Commissioner expressed her recommendation to the Danish Government that “[w]aiting periods of over one year are inappropriate for refugees and for their family members.” Further, the Commissioner noted that Syrian individuals are being disproportionately affected, following the 1951 Refugee Convention. On March 18, 2020, the Grand Chamber hearing of M.A. v. Denmark will commence to decide on this issue.

For further information, please see:

ECHR – M.A. v. Denmark (relinquishment) – November 2019

ECHR – Relinquishment in favour of the Grand Chamber M.A. v. Denmark – 11 Nov. 2019

Council of Europe – Third party Intervention by the Council of Europe Commissioner of Human Rights – 31 Jan. 2019

Finland Sanctioned by the European Court of Human Rights Following the Murder of Expelled Asylum Seeker

By: Susan Mintz

Journal of Global Rights and Organizations, Associate Articles Editor 

HELSINKI, Finland — The European Court of Human Rights (“ECHR”) has sanctioned Finland in relation to the murder of an Iraqi asylum seeker. His claim for asylum was denied after Finnish authorities determined he was not likely to be in danger of persecution in Iraq. Following his expulsion to Iraq in December of 2017, within weeks of his return he was shot and killed. An application against the Republic of Finland was submitted by his daughter to the ECHR for violating Articles 2 and 3 of the Convention for the Protection of Human Rights and Fundamental Freedoms. The Iraqi asylum seeker’s daughter, who fled with him and her brother to Finland, requested the court not use her name as was referred to in the judgment as N.A.

N.A.’s father was a Sunni Muslim man from Baghdad. Under Saddam Hussein’s regime he served as an army major. After the U.S. invasion he worked with an American logistics company before becoming a civil servant in the Office of the Inspector General, where he was the only one with a Sunni background. In his last year at the Office, as the lead officer his work included conducting internal investigations, dealing with human rights crimes, and corruption.

In early 2015, a coworker physically assaulted and threatened to kill N.A.’s father following a disagreement. Shortly after the incident, his attacker was transferred to the intelligence service and promoted. In February, an attempt on his life was made when he was shot at leaving work. When the police failed to follow up on his report of the shooting, N.A.’s father resigned his job due to the lack of protection offered by the Iraqi authorities. He and his wife went into hiding after narrowly surviving a car bomb. After the applicant, N.A., escaped an attempted kidnapping, N.A. fled with her father and brother to Finland and applied for asylum.

The Finnish Immigration Service found N.A.’s father credible and accepted the facts established by his account of his history and the events leading up to his flight from Iraq. Nevertheless, his asylum claim was denied because the Service determined that attack by his coworker was a personal matter and the attempts on his life were part of the general violence in Baghdad and not specifically directed at him or related to his Sunni background. His appeals to the Administrative Court and Supreme Administrative Court were denied without permitting oral argument. Under an enforceable order of removal, N.A.’s father returned to Iraq under Finland’s voluntary returns program on November 29, 2017. Following his return, N.A. learned that her aunt’s home, where the family had been in hiding, had been attacked. She learned of her father’s murder a few weeks later.

The ECHR ruled that Finland violated N.A.’s father’s right to life under Article 2 and the prohibition on torture, inhuman or degrading treatment or punishment under Article 3 because the authorities knew or should have known that conditions in Iraq and his personal circumstances presented a real risk of persecution or death of N.A.’s father in Iraq. In reaching this finding, the ECHR rejected claims by Finnish authorities that N.A.’s father had waived all claims under the Convention for the Protection of Human Rights and Fundamental Freedoms when he accepted voluntary return, and that he failed to demonstrate a sufficient likelihood of future persecution.

While the ECHR declined to rule on whether rights under Article 2 and 3 could ever be waived, under the circumstances of this case there was no waiver of rights. To waive a right, the waiver must be under free will, unequivocal and attended by minimum safeguards. Although N.A.’s father used the voluntary return program, the court found that he did not have a genuinely free choice in the matter given that the alternative was detention and forced deportation to Iraq, which would alert the Iraqi authorities of his presence.

The ECHR also found that the Finnish Immigration Service failed to properly assess the asylum claim of N.A.’s father. By finding he credibly established the facts of his account, the Finnish Immigration Service necessarily accepted as true his background, work history, the attempts on his life and the circumstances of his flight from Iraq. However, in evaluating N.A.’s father’s claim, the authorities failed to consider the accumulation of the factors that, taken together, showed an increased risk of persecution. In particular, the ECHR noted that his account supported an inference that the return of N.A.’s father would be of interest to Iraqi authorities, as well as non-State actors, showing that he was at risk of being a target of persecution.

Violence against Sunni Muslim men by Shia militias was well documented at the time the asylum decision was made, as were killings of Iraqis who had worked with Americans. While no single factor established a risk of harm or death, taken together all the circumstances accepted by the Finnish authorities clearly established the risk to N.A’s father.

In the wake of the ruling a suspension of deportations was announced by Minister of the Interior Maria Ohisalo, and the Helsinki Police Department. Although the Finnish Immigration Service previously claimed that voluntary return to Iraq had “succeeded to a fair extent,” the agency is now reviewing 500 orders of expulsion to Iraq. 

For further information, please see:

European Court of Human Rights – Application no. 25244/18 N.A. against Finland – 23 May 2018

European Court of Human Rights – Case of N.A. v. Finland Judgment – 14 Nov. 2019

Finnish Minister of the Interior – Press Release – 14 Nov. 2019

Foreigner.FI – Police suspend deportations to Iraq after Human Rights Court sanction – 18 Nov. 2019

ECHR Rules Supermarket Cameras Don’t Violate Right to Privacy

By: Genna Amick

Journal of Global Rights and Organizations, Associate Articles Editor 

MADRID, Spain — On October 17, 2019, the Grand Chamber of the European Court of Human Rights found that the right to privacy of supermarket employees was not violated by the supermarket using visible and hidden cameras to record areas of the store where it suspected theft by employees.

The manager of a Spanish supermarket noticed that stock valued at upwards of €20,000 was missing. He decided to install cameras without informing any of his employees. The cameras focused on exits, entrances, and checkout counters. Based on the surveillance footage, the manager discovered that a number of his employees were taking goods without paying for them and helping customers to steal. He fired 14 of his employees, five of which are the applicants in this case.

The applicants argued that they were dismissed unfairly and that their right to privacy was violated by the installation of the cameras without their knowledge. The Spanish Employment Tribunal found that the dismissal was valid and that the applicant’s right to privacy had not been violated. After the Spanish High Court affirmed the Employment Tribunal’s ruling, the applicants submitted a complaint to the European Court of Human Rights.

In January 2018, a chamber of the European Court of Human Rights found that the employee’s right to privacy under Article 8 of the European Convention had been violated because they had not been informed of the installation of the cameras. However, the chamber did not find that the applicant’s right to a fair trial under Article 6 of the European Convention had been violated.

The case was then accepted and reviewed by the Grand Chamber which found that applicant’s Article 8 right to privacy was not violated nor was their Article 6 right to a fair trial. Delving into the right to privacy, the Grand Chamber held that employers are not required to notify employees of surveillance equipment if it was installed to protect a “significant” interest.

Applicant’s also argued that the State had a positive obligation to protect their rights against the actions of a private company. The Grand Chamber found that since there were a number of domestic laws in place intended to safeguard the applicant’s right to privacy which they could have sought legal remedies under, the State had acted within its margin of appreciation. The Grand Chamber concluded that the applicant’s Article 8 right to privacy had not been violated.

The Grand Chamber also concluded that applicant’s Article 6 right to a fair trial was not violated. In this case, the applicants attempted to argue that using their former employer’s video recordings of them stealing was inadmissible. The Grand Chamber held that using the videos as evidence did not undermine the fairness of the proceeding for two reasons. First, applicants had the ability to challenge the quality and accuracy of the videos. Second, the recordings were not the only evidence that was used by the Spanish domestic courts.

For further information, please see:

International Justice Resource Center – European Court Holds Secret Surveillance Did Not Violate Employees’ Privacy – 24 Oct. 2019

Warner Goodman – Employment Law Case Update: Lopez Ribalda and others v Spain – 24 May 2018

Man In Turkmenistan Is Missing After Revealing Sexual Orientation

By: Melissa Berouty

Journal of Global Rights and Organizations, Associate Articles Editor

ASHGABAT, Turkmenistan — According to Freedom House’s index of basic freedoms, Turkmenistan is rated below North Korea and only above Syria. Under Turkmen law, the government has the authority to regulate behavior in an attempt to “construct the model Turkmen citizen.” Turkmen authorities exercise its control by brutally punishing any form of religious or political expression that does not align with the Turkmen government. Additionally, the Turkmen government limits the nature of print and electronic media available to its citizens.

The Turkmen government has a long history of enforced disappearances, where individuals’ whereabouts or fates serving long sentences in Turkmenistan are unknown. For more than ten years, the Turkmen government has prohibited loved ones, lawyers, and the outside world access to the imprisoned. Prove They Are Alive, a campaign committed to ending enforced disappearances in Turkmenistan, has reported at least 121 cases of enforced disappearances. Of these 121 cases, many are suspected to be detained in the Ovadanepe prison, which has a reputation for extreme conditions.

On October 24, 2019, it was reported that Kasymberdy Garayev was feared to be missing after allegedly revealing his sexual orientation, under a pseudonym, on Radio Free Europe/Radio Liberty. In Turkmenistan, homosexual conduct is a criminal act that can result in up to a two-year prison sentence. Today, approximately sixty-eight countries have laws that criminalize homosexual conduct between consenting adults. According to Human Rights Watch, sentencing in these sixty-eight countries “range from fines to life imprisonment and even the death penalty.” Rachel Denber, the deputy Europe and Central Asia director at Human Rights Watch, expressed her extreme concern for Garayev stating that “given Turkmenistan’s appalling human rights record, including enforced disappearances, we have every reason to fear for his safety and well-being.”

Kasymberdy Garayev is a 24-year-old cardiologist, who was employed at an elite clinic in Turkmenistan. On October 21, 2019, Radio Free Europe/Radio Liberty released a narrative, where Garayev allegedly reflected on his life in Turkmenistan stating that “since childhood, I knew that I was gay and it was hard for me to accept.” In 2018, Garayev was allegedly detained by Turkmen authorities upon a scheduled meeting with an online male love interest, which turned out to be a police officer. Here, Garayev allegedly stated that on the way to the police station, officers beat him, used a stun gun, and demanded that he make a statement on camera confirming his sexual orientation.

On October 24, 2019, Turkmen authorities allegedly requested Garayev’s presence for a background check.  From October 24, 2019 to November 6, 2019, Garayev’s whereabouts were unknown. Radio Free Europe/Radio Liberty was also unable to locate Garayev’s family. According to Human Rights Watch, when an individual summoned by Turkmen authorities goes missing, “there is a real risk they could be the victim of an enforced disappearance.”

On October 31, 2019, Radio Free Europe/Radio Liberty released a video recording of Garayev2 speaking, where he disclosed his real name, expressed his fear of going missing, and begged for his family’s forgiveness.

During the time Garayev was feared to be missing, Gurbanguly Berdymukhamedov, the president of Turkmenistan, visited Rome. During Berdymukhamedov’s visit, several Italian LGBTQ+ activist groups urged Rome to speak out on Garayev’s disappearance. On November 6th, Italian Senator Monica Cirinna released a statement demanding the government press Berdymukhamedov on the details of Garayev’s disappearance. Later that day, Garayev returned home.

Since then, Garayev denies any communication with Free Europe/Radio Liberty. Garayev claims that the video farewell was recorded for a different purpose and sent mistakenly to Radio Free Europe/Radio Liberty. Additionally, after the release of Radio Free Europe/Radio Free Liberty’s narrative, Garayev is no longer employed by the prestigious clinic in Turkmenistan where he once worked. Since Garayev’s alleged return home, several LGBTQ+ activist groups have started campaigns seeking to protect Garayev.

For further information, please see:

Human Rights Watch – Turkmenistan: Gay Man Missing After Coming Out Online – 1 Nov. 2019

Radio Free Europe/Radio Free Liberty – ‘If I Disappear, Forgive Me’: Missing Gay Turkmen’s Plea – 31 Oct. 2019

Radio Free Europe/Radio Free Liberty – Gay man from Turkmenistan wants to make a statement to start a discussion – 21 Oct. 2019

Radio Free Europe/Radio Free Liberty – The Turkmen President Is Alive, But What About His Prisoners? –  20 Aug. 2019

Human Rights Watch – Turkmenistan Events of 2018

Human Rights Watch –#OUTLAWED “THE LOVE THAT DARE NOT SPEAK ITS NAME”