Court Watch
and Others, five unrelated individuals originating from Iran, Algeria, and Afghanistan also refused to be returned to Greece when the Irish govern- ment determined that Greece was responsible for processing their application, as it was the asylum- seekers’ original point of entry.
All six individuals claimed that asylum procedures in Greece were inadequate to fairly process their refugee application, thus the countries seeking to deport them back to Greece must accept their re- quest to apply for refugee status. The High Court of Ireland and the Court of Appeal of England and Wales, the highest courts to review this matter in their respective countries, made determinations that Greece does not necessarily observe funda- mental rights, such as due process, in part due to the overloading of their system by countless asy- lum seekers. Notably the English court found that asylees had a very small chance of being granted refugee status in Greece as opposed to other countries and that detention facilities and judicial remedies were inadequate.
Before the ECJ’s decision in this matter, it was assumed that all European Union member states could transfer asylum-seekers to the member state which was the initial point of entry without further investigation into the actual asylum pro- cess in that particular member state. However, the ECJ held that “if there are substantial grounds for believing that the asylum seeker would face a real risk of being subjected to cruel, inhuman or degrading treatment within the meaning of Article 4 of the Charter of Fundamental Rights of the European Union” or would have their other fundamental rights protected under EU law were violated, a member state could not transfer that asylum seeker to the country deemed responsi- ble for asylee and should process that individual’s asylum application.
For the European Union, the effect of this ruling can be compared to the effect of the United Na- tions Convention Against Torture and Other Cruel, Inhuman, and Degrading Treatment (CAT) prevent-
ing the United States from deporting non-citizens to countries where they face a high probability of torture. In the United States, CAT requires that the United States grant an individual it wants to deport a stay of removal which allows the indi- vidual to remain in the United States, or in rare cases, keep him or her in detention indefinitely if a receiver state is not found. The N.S. and M.E. and Others decision imposes an additional burden on EU member states by requiring them to deter- mine if the initial country of entry adequately com- plies with asylum law; if not, that member state must process the asylum-seeker’s application and perhaps even accept that person as a refugee.
* Submitted by Dominique de Vastey
ECtHR Protects Alleged Al Qaeda Cleric in British Deportation Dispute
On January 17, 2012, the European Court of Hu- man Rights (ECtHR) ruled in favor of an accused Al Qaeda operative known as Abu Qatada, a Jordanian national currently living in the United Kingdom who is charged in Jordan with multiple acts of terrorism. Qatada’s deportation had been ordered by the British government in response to Jordanian requests, and following nearly seven years of detention and house arrest without charge. The Court determined that, given Jordan’s widespread use of evidence gained by means of torture, Qatada’s return to Jordan would subject him to “ill treatment” and a “flagrant denial of justice”
, in contravention of his rights as a British domiciliary.
The European Court of Human Rights was found- ed in 1959 and is seated at Strasbourg, France. A judicial component of the Council of Europe, the Court aims to ensure human rights protections within the Council’s member states, pursuant to the 1950 Convention for the Protection of Human Rights and Fundamental Freedoms. The ECtHR should not be confused with the International Court of Justice, the judicial organ of the United
ILSA Quarterly » volume 20 » issue 4 » May 2012 15
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