A.K. v. SERBIA (European Court of Human Rights)

Communicated on 19 November 2018

THIRD SECTION

Application no. 57188/16
A.K.
against Serbia
lodged on 3 October 2016

STATEMENT OF FACTS

The applicant is a Sudanese national. He left his home country in spring 2014 allegedly fleeing prosecution by the National Intelligence and Security Services (NISS) for his affiliation with rebel groups operating in Al Fashir city, the capital of Northern Darfur. He was born and raised in this town, as a member of the Tinjub ethnic group, but then he moved to and worked as informatics engineer in Khartoum.

Having left Sudan, the applicant transited though Turkey, Greece and former Yugoslav Republic of Macedonia. He stated that he had tried to lodge an asylum request in Turkey, as well as in Greece, but that the respective police had not allowed him to do that. He had not claimed asylum in the FYROM, as he had been following a smuggler with other people for ten days and had been afraid to leave them. Serbia was the first country where the applicant applied for asylum in October 2014.

Following a remittal and fresh consideration of the case, in December 2015 the Asylum Office rejected the applicant’s request as inadmissible stating that the FYROM was to be considered a “safe third country” according to the Government’s decision of 17 August 2009 on the list of safe third countries. It further observed that the applicant failed to prove that this country was not safe in his case, since he had not faced any problems during his stay in the FYROM. The applicant was ordered to voluntarily leave Serbia within three days of the date on which this decision became final. This decision was further upheld by the Asylum Commission and the Administrative Court and became final and enforceable on 26 September 2016. The applicant’s constitutional appeal is still pending before the Constitutional Court.

The applicant is represented before the Court by Belgrade Centre for Human Rights, a non-governmental organisation based in Belgrade. It would appear that he is currently staying at the Asylum centre in Krnjača in Belgrade. He faces a deportation to the FYROM. On 4 October 2016 the Court (the duty Judge) decided, in the interest of the parties and the proper conduct of the proceedings before it, to indicate to the Government of Serbia, under Rule 39 of the Rules of Court, that the applicant should not be deported to the FYROM or another country for the duration of the proceedings before the Court.

COMPLAINTS

The applicant complains under Article 3 that he would be subjected to inhuman and degrading treatment in case of his forced return to the FYROM, as well as to the risk of chain refoulement to Greece and further to Turkey. The applicant avers that the blanket rejection of asylum claimants arriving to Serbia from the FYROM, designated by the Serbian Government as a “safe third country”, by both the asylum administrative authorities and courts, exposes him to a risk of arbitrary removal to the FYROM and Greece were he faces the deficiencies in the asylum procedure and eventual refoulement to Sudan in breach of Article 3 of the Convention.

The applicant also complains under Article 13 to the Convention in conjunction with Article 3 about the lack of an effective legal remedy and, in particular, due to the poor quality of the applicant’s refugee status determination procedure as a result of the automatic application of the safe third country concept.

QUESTIONS TO THE PARTIES

1. Having regard to procedural protection from torture and inhuman or degrading treatment and the applicant’s claims, was the refusal to review the applicant’s application for international protection in the present case by the domestic authorities in breach of Article 3 of the Convention? In particular, before deciding on his return, did the Serbian authorities consider the applicant’s claim that he would be exposed to a risk of being subjected to torture and inhuman treatment if returned to the FYROM and further to Greece and Sudan (see Jabari v. Turkey, no. 40035/98, §§ 38-39, ECHR 2000‑VIII; Shamayev and Others v. Georgia and Russia, no. 36378/02, § 448, ECHR 2005‑III; and De Souza Ribeiro v. France [GC], no. 22689/07, § 82, ECHR 2012)?

2. In the light of the applicant’s claims and the documents which have been submitted, would he face a real risk of being subjected to treatment in breach of Article 3 of the Convention if the expulsion order was enforced (see, for example, A.A. v. France, no. 18039/11, 15 January 2015 and A.F. v. France, no. 80086/13, 15 January 2015; see, also, mutatis mutandis, A.A. v. Switzerland, no. 58802/12, 7 January 2014)?

3. Did the applicant have at his disposal an effective domestic remedy for his complaints under Article 3 of the Convention, as required by Article 13 of the Convention? Also, can a constitutional appeal be considered an effective domestic remedy, in view of the fact that it does not have automatic suspensive effect (see Čonka v. Belgium, no. 51564/99, § 79, ECHR 2002‑I; Gebremedhin [Gaberamadhien] v. France, no. 25389/05, § 58, ECHR 2007‑II; and Hirsi Jamaa and Others v. Italy [GC], no. 27765/09, § 200, ECHR 2012)?

4. Did the authorities obtain or envisage obtaining assurances from the FYROM that the latter will allow the applicant to enter its territory, to have access to asylum proceedings and to be accommodated in a facility ensuring his dignity (see M.S.S. v. Belgium and Greece [GC], no. 30696/09, § 359, ECHR 2011 and Tarakhel v. Switzerland [GC], no. 29217/12, §§ 120-122, ECHR 2014 (extracts); see, mutatis mutandis, Bader and Kanbor v. Sweden, no. 13284/04, § 45, ECHR 2005‑XI)?

5. Lastly, the Government are requested to submit case-law and domestic administrative practices concerning asylum seekers arriving from “safe third countries”, while the parties are also invited to provide any information concerning the conditions of reception facing the applicant and other asylum seekers deported to the FYROM.

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