Last Updated on May 15, 2019 by LawEuro
Communicated on 26 October 2018
THIRD SECTION
Application no. 62410/17
M.H.
against Serbia
lodged on 23 October 2017
STATEMENT OF FACTS
The applicant is a Syrian national. He claims that he left his home country, founding himself in the risk of compulsory military mobilisation and of persecution on religious grounds as a Sufi. His house has been allegedly destroyed and his uncle was killed by the Free Syrian Army. The applicant’s father fled Syria fearing for his life and was granted international protecting on the above grounds in a European country.
After transit through Turkey, Greece and the FYROM, the applicant entered Serbia for the first time in February 2016. He unsuccessfully attempted to enter Croatia and was refouled to the south of Serbia. In April 2016, he entered Hungarian asylum proceedings which ended with his informal expulsion to Serbia in May 2016.
The applicant expressed his intention to seek asylum in Serbia in May 2016. His asylum request was dismissed on the basis of safe third country principle. In its very short reasoning, the Asylum Office observed that the FYROM was on the list of safe third countries determined by the decision of the Government of Serbia of 17 August 2009 and relied on a European Commission Progress Report which indicated that 70 individuals had been granted international protection by the FYROM in 2014. It concluded that the applicant had not proven that FYROM would not be a safe third country in his case. This decision was further upheld by the Asylum Commission and the Administrative Court and became final and enforceable in November 2017.
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. He faces forcible return to Syria. On 23 October 2017 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 of the Convention that he would be subjected to inhumane and degrading treatment in case if his forced removal to FYROM, as well as to the risk of chain refoulement to Greece and further to Turkey and Syria. More specifically, he will not have access to the asylum procedure in the FYROM, since the Serbian authorities have not obtained such guarantees. Further, he will be deprived of adequate shelter, food, health support and other services that will satisfy his basic needs. Moreover, he claims that he will be at risk of ill-treatment by the FYROM police, with whom a large number of abuses, including beatings and psychological ill-treatment have been well-documented. Lastly, the applicant claims that he will be subjected to inhumane and degrading conditions in the detention (Gazi Baba) or asylum centre (Vizbegovo), which cannot handle the increasing number of asylum-seekers, or that he will be in risk of de facto deprivation of liberty in no man’s land between Serbia and FYROM (Tabanovci-Miratovac field border crossing).
The applicant also stresses that he has no effective domestic remedies in respect of the alleged violations, in breach of Article 13.
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, Turkey and Syria? Did the Serbian authorities’ decision to consider the FYROM as a “safe third country” and to order their expulsion towards that direction expose the applicants to a risk of being subjected to treatment in breach of Article 3 of the Convention?
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, L.M. and Others v. Russia, nos. 40081/14, 40088/14 and 4012/14, §§ 76-81, 15 October 2015, and S.K. and Others v. Russia, no. 52722/15, § 47, 14 February 2017)?
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)?
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