One-way ticket to Sudan: standard-setting, yet disconnection between reasoning and outcome in N.A. v. Switzerland?

By Ellen Desmet, assistant professor of migration law at Ghent University

On 30 May 2017, the European Court of Human Rights decided two cases regarding the expulsion of rejected asylum seekers by Switzerland to Sudan. In A.I. v. Switzerland, the Court held unanimously that there would be a violation of Articles 2 and 3 ECHR in case of implementation of the deportation order, whereas in N.A. v. Switzerland the Court, also unanimously, did not find a conditional violation of these provisions.

The judgments (only in French) deserve a blogpost for at least two reasons. First, the Court explicitly sets out criteria in order to assess the risk of ill-treatment of political opponents when returned to Sudan. Second, the legal reasoning in N.A. v. Switzerland seems to hold potential for improvement. This post does not aim to question the outcome in N.A.: even though many aspects of A.I. and N.A. run parallel, there are important factual differences that may justify finding a violation in one case but not in the other. It does take issue with the way this outcome is arrived at in N.A. v. Switzerland.

Comparing the facts

Both applicants are Sudanese nationals, whose asylum applications were rejected by the Swiss authorities because of lack of credibility. The removal decisions issued against them were suspended on the basis of Rule 39 interim measures adopted by the ECtHR.

The two judgments mainly assess the applicants’ political activities after their arrival in Switzerland (sur place). The part of A.I.’s application relating to his flight motives is considered manifestly unfounded (§ 37), while as regards N.A., the Court does not identify any element that would call into question the credibility assessment carried out by the domestic asylum authorities (§ 44).

In Switzerland, both applicants have been a member for several years of the opposition group Justice and Equality Movement (JEM). A.I. is also a member of the Centre for Peace and Development in Darfour (DFEZ). A.I. has been politically more engaged than N.A.: the former played a role in organizing weekly sessions of JEM, he participated regularly in events of JEM and DFEZ as well as in international conferences on the human rights situation in Sudan, he published two articles online criticizing the Sudanese regime, and had become the media responsible of the Swiss section of JEM. The latter participated in various meetings and public events organized by JEM as well as other organisations regarding the situation in Sudan. He also claimed to have regularly assisted the Swiss JEM leader in the preparation of a radio program, and that photographs of him with a JEM leader were circulating on the internet.

Comparing the assessments of the merits

In both cases, new information had come to light after the final decision was taken by the domestic authorities, so the Court undertook a full and ex nunc evaluation.

Regarding the general situation in Sudan, the Court notes in both cases that the human rights situation in Sudan is alarming, especially for political opponents. It confirms that the individuals at risk are not only high profile opponents, but ‘every person opposing or being suspected of opposing the current regime’ (referring to A.A. v. France, § 56; A.F. v. France, § 49; A.A. v. Switzerland, § 40). Given the difficulties in assessing the genuineness of sur place activities, and in view of the importance attached to Article 3 ECHR, the Court assessed the applicants’ claims on the grounds of the political activities effectively carried out (referring to A.A. v. Switzerland, § 41).

Considering that the surveillance by the Sudanese secret services of political opponents abroad cannot be considered as systematic (referring to A.A. v. Switzerland, § 40 and international reports), the Court identifies – for the first time explicitly – four factors to be taken into account when assessing the risk faced by political opponents of treatment contrary to Article 3 in case of deportation: (i) earlier interest of the Sudanese authorities in the individual concerned; (ii) membership of an opposition movement in Sudan and/or abroad, the nature of that movement, and the extent to which it is targeted by the government; (iii) the nature and degree of political engagement abroad (e.g. participation in meetings or public events, online activities); and (iv) personal or family ties with prominent opposition members in exile (N.A. § 46; A.I. § 53). The Court  then applies these criteria to the cases at hand (N.A. §§ 47-50; A.I. §§ 54-57):

  • As the interest by the Sudanese authorities is concerned, the Court does not find in either case an indication of any interest in the applicants by the Sudanese authorities during their residence in Sudan or abroad, prior to their arrival in Switzerland.
  • Yet, the Court notes that JEM is one of the main rebellion movements in Sudan and that its increased legitimacy in the conflict has provoked a more stringent approach by the authorities towards its members. In both cases, the Court concludes that the applicants’ membership of JEM since several years ‘thus constitutes a risk factor for persecution’. The Court draws the same conclusion as regards A.I.’s membership of DFEZ.
  • The main differences between both cases – as regards both facts and legal reasoning – concern the nature and level of political activities abroad. The Court first remarks that, whereas the political engagement of A.I. had increased over time, this was not the case for N.A. In both cases, though, the Court is of the view that the political profile of the applicant ‘cannot be considered as very exposed’. Then the two judgements split ways as their argumentation is concerned.

In A.I., the Court states that, notwithstanding the applicant’s low public profile, ‘the specific situation in Sudan should be taken into account’. It then refers to the abovementioned case law, that not only high-profile opponents face risk of ill-treatment, but any person (supposedly) opposing the regime. Moreover, the Court holds, it has been acknowledged that the Sudanese government monitors activities of political opponents abroad.

In N.A., by contrast, the Court justifies the qualification of the applicant’s profile as ‘not very exposed’ by referring, among others, to the fact that he did not represent JEM when participating in an international event on human rights in Sudan (distinguishing the case from A.A. v. Switzerland § 43). The Court therefore concludes that N.A.’s political activities in Switzerland, being limited to those of a ‘mere participant’ in events of the opposition, ‘were not of the kind to attract the attention of the Sudanese intelligence services’.

  • Finally, the Court finds in both cases that the applicants cannot usefully invoke personal or family ties with prominent opposition members in exile.

The Court concludes in A.I. that it cannot exclude that the applicant, as an individual and because of his political activities, has attracted the attention of the Sudanese intelligence services. Substantial grounds have thus been shown for believing that A.I., if deported, faces a real risk of being arrested, interrogated and tortured upon arrival at Khartoum airport. Therefore, the Court finds that there would be a violation of Articles 2 and 3 in the case of expulsion (A.I. § 58).

In N.A., the Court is of the view that the political activities of the applicant abroad, which are limited to merely participating in activities of opposition movements, are not likely to attract the Sudanese government’s attention. The applicant thus does not face a risk of ill-treatment and torture if being returned to Sudan, on account of these activities sur place (N.A. § 51).

Comments

First, compared to the similar case of A.A. v. Switzerland, the Court takes a step further, and identifies in the abstract four factors to be taken into account when assessing the risk of deportation of political opponents. These criteria seem to hold potential for wider application, beyond the Sudanese context.

Second, the Court’s legal reasoning in N.A. may be considered unfortunate. One observation relates to the internal construction of the argument, the other derives from comparing the merits sections of N.A. and A.I. Most paragraphs in the Court’s assessments of the merits in the two cases are verbatim the same, or only differ as to minor/factual details. Both judgments were moreover issued on the same day. These circumstances support the position that, where the judgments do differ in their formulation, this is purposefully so.

In N.A., the Court reaffirms that the human rights situation in Sudan is alarming, and that ‘every person opposing or being suspected of opposing the current regime’ faces a risk of ill-treatment. The Court also confirms that N.A. has been a member of JEM for several years, and assesses this membership to be ‘a risk factor for persecution’. If any person merely being suspected of opposing the regime is already at risk, and if N.A.’s membership of JEM is not contested but explicitly considered to be a risk factor, how then can the Court feel so confident to conclude that N.A. does not face any risk of ill-treatment if deported?

This disconnection between reasoning and outcome becomes even more apparent when comparing the argumentation of the Court regarding the political engagement abroad in A.I. and N.A.. In the former case, the Court, after noting the applicant’s ‘not very exposed’ public profile, states that ‘the specific situation in Sudan should be taken into account’, in that any (suspected) opposition member runs a risk of ill-treatment, and that surveillance abroad is taking place. Why are these observations not included in N.A.? Does ‘the specific situation in Sudan’ not also apply to his case? Instead, the Court finds that his ‘mere participation’ in political activities of the opposition in exile will not have alarmed the Sudanese intelligence services. It is therefore hard to see how the arguments put forward by the Court support the non-finding of a violation in N.A., especially in light of the absolute nature of the prohibition of non-refoulement.

Van Wesenbeeck v. Belgium: Balancing defence rights with law enforcements’ possibilities to apply observation and infiltration methods

By Sofie Depauw, PhD Researcher at Ghent University, Institute for International Research on Criminal Policy (IRCP).

With its judgment in the case of Van Wesenbeeck v. Belgium, the Chamber of the European Court of Human Rights has taken a stance with regard to the scope of defence rights in case of observation and infiltration methods. More specifically, the Court judged that, despite the lack of access to the confidential case file and the applicant’s inability to examine undercover officers, the right to a fair trial had not been violated. According to the Court, the supervisory role of the Indictments Division constituted a sufficient procedural guarantee to compensate for both interferences. Whereas it remains to be seen whether this judgment will hold, as the case can still be referred to the Grand Chamber, it is however interesting to take a closer look at the Court’s considerations in this regard and the dissenting opinion relating to the right to examine witnesses.

The facts

The case dates back to 2010, when the Indictments Division of the Antwerp Court of Appeal decided on the regularity of evidence gathered and the completeness of the criminal case file in a case of, amongst others, drug trafficking, participation in an international criminal organisation and money laundering. One of the suspects, Van Wesenbeeck, had been the subject of a proactive investigation after a preliminary authorisation from the Crown Prosecutor of Hasselt, from May 2006 till September 2008, during which observation and infiltration methods were applied. Two reports, which described evidentiary elements obtained through the use of the proactive investigative measures, were added to the case file (which became accessible later on). From September 2008 until June 2009, the methods were once again applied, albeit in the context of a ‘conventional’ judicial investigation under the responsibility of an investigating judge, and in combination with other investigative measures such as telephone tapping. After adding the documents to the case file which the Indictments Division indicated (relating to the existence of indications that led to the opening of a proactive investigation and the proportionality and subsidiarity of the particular investigative methods), the case file was considered complete and not consisting of any irregularities or violations of legal or conventional provisions. The case file however was still limited to some extent, as it did not contain any information on the identity of the undercover officers nor on the methods used. These documents remained confidential, which the applicant contested. However, his objections were declined, and the applicant was convicted to ten years of imprisonment and a fine of 137 500 euros.

The Court’s judgment

The Court was asked to decide on whether the lack of access to the confidential file violated the right to a fair hearing (art. 6 § 1), and whether the inability to examine the undercover officers, or to have them examined, violated the right to examine witnesses (art. 6 § 3 (d)). Both complaints were dismissed.

With regard to the right of access, the Court successively considers the necessity of the decision to keep a confidential file which was not accessible to the applicant, and the existence of sufficient procedural safeguards in this respect. The decision was recognised to be in conformity with the necessity requirement, as the existence of the confidential file was motivated by the concern to protect the anonymity and thus the safety of the infiltrating officers and the methods they applied, and the elements kept confidential were limited to that extent. All other information was thus included in the  (accessible) case file. Moreover, the Court considered that an important procedural guarantee was constituted by the judicial control exercised by the Indictments Division. More specifically, the Division can independently and impartially decide on whether the case file is complete and whether it is necessary to keep information from the confidential file inaccessible to the defence. This control was considered an important guarantee by the Court. The applicant’s attempt to invoke the impossibility to verify whether there had been incitement/entrapment by the infiltrated police officers in case of non-access, was rejected as well.

With regard to the right to examine witnesses, the Court successively considers the reasons to deny the applicant the possibility to examine the undercover officers (1), the importance of the officers’ statements as evidence (2) and the procedural guarantees to counterbalance the  difficulties to the defence caused by this decision (3). First of all, the Court referred to the national authorities’ judgment in that the search for the truth nor the right to a fair trial required the interrogation of the infiltrating agents. Even though it could be acknowledged that an interrogation as such might have been useful, the grounds invoked by the Belgian government (protection of the infiltrating officer and his family and possibility to use this agent in future operations) were considered sufficiently serious and based on objective and concrete grounds. Secondly, the Court believes that the statements can be considered of sufficient weight to cause difficulties for the defence. Thirdly, however, the Court found that there were sufficient counterbalancing elements to compensate for the difficulties of the inability to interrogate the agents. More specifically, the Court attached great importance to the judicial control exercised by the Indictments Division, which could take into account and investigate all concerns raised by the applicant, even though neither Van Wesenbeeck, nor the Indictments Division (which could only consult the confidential file) could interrogate the officers themselves. Moreover, since the applicant could access and compare the reports drawn up by both infiltrating officers, other witnesses could be examined and questioned about the infiltrating officers and their methods and all evidence has been scrutinised by the national court, the Court believed that all evidentiary elements raised by the anonymous infiltrating officers could sufficiently be counterbalanced by the defence by providing other evidentiary elements.

Judges Karakas, Laffranque and Turkovic however dissented with the Court’s decision on the last element. More specifically, they believe that there was a violation of the right to examine witnesses in that there were insufficient compensatory elements to counterbalance the impossibility to examine the infiltrating police officers. According to the Schatschaschwili judgment,

The Court would stress that, while Article 6 § 3 (d) of the Convention concerns the cross-examination of prosecution witnesses at the trial itself, the way in which the prosecution witnesses’ questioning at the investigation stage was conducted attains considerable importance for, and is likely to prejudice, the fairness of the trial itself where key witnesses cannot be heard by the trial court and the evidence as obtained at the investigation stage is therefore introduced directly into the trial”.

In the light of this judgment, the dissenting judges found that the impossibility for the applicant to examine the witnesses or have them examined, led to the violation of article 6 §3 (d)).

Commentary

As the dissenting Judges Karakas, Laffrangue and Turkovic indicate, deciding on whether sufficient compensatory safeguards are put in place in order to conclude that the rights of the defence have not been violated, can be regarded in two ways.

On the one hand, the Court has said in the Schatschaschwili judgment that the way in which prosecution witnesses are questioned can prejudice the fairness of the trial. Moreover, the Court has said in this judgment that, in case of the witnesses’ absence, “a significant safeguard is the possibility offered to the defence to put its own questions to the witness indirectly, for instance in writing, in the course of the trial”. Such safeguard was however not at all provided by the Belgian legislator.

On the other hand, in the Bátěk judgment, which even serves as a reference in the judgment of the majority, the Court considered that there was no violation of the right to a fair trial as the defence had been able to challenge the reliability of the evidence of the undercover police officer by putting questions to her directly and commenting on her testimony. The reference of the majority to the Bátěk judgment to confirm its own decision seems odd, especially since the defence did have the possibility to question the witness in this case.

In conclusion, this is a remarkable judgment that can either be considered as a new balance of defence rights and law enforcements’ possibilities achieved by the Court in applying infiltration and observation methods, or as a one-time deviation of the general principle that the defence should have the possibility to examine the witnesses (or have them examined) by (indirect) interrogation.

Independent Newspapers v. Ireland: €1.25 million defamation award against newspaper violated Article 10

The European Court’s Fifth Section has unanimously held that a damages award made against an Irish newspaper for defamation violated the right to freedom of expression, under Article 10 of the European Convention. While the judgment in Independent Newspapers v. Ireland concerned Irish defamation law prior to reforms brought about in 2009, it is still significant for signalling to Irish courts that unpredictably high damages have a “chilling effect,” and require the “most careful scrutiny” and “very strong justification.” Continue reading

Škorjanec v Croatia: victims of racist hate-crime “by association” protected by ECHR

When criminal offences are committed out of hate towards people with a particular skin color, gender, religion, sexual orientation, etc; this hate component is often considered to be an aggravating factor leading to a higher penalization of the crime. The primary victims of these hate crimes are the people who actually possess one those characteristics. Hate however often extends to people who do not have any connections with these characteristics, but who are perceived as belonging to a group having these characteristics. An example is Sikhs who are perceived as Muslims and as a consequence have been victim to islamophobia. A third group of potential victims of hate crimes are people who are associated or affiliated with others who actually or presumably possess (one of) these characteristics. This could for example be through family ties, friendship, membership to some organisations etc. In the case of Skorjanec v. Croatia, the European Court of Human Rights is confronted with this last category of hate crimes This case concerns in particular a possible racist hate crime by association.     Continue reading

Systematic detention of asylum seekers at the border: on the need for an individualised necessity test

By Ruben Wissing, lawyer at UNHCR and academic assistant migration law at Ghent University

In the Thimothawes judgement of 4 April 2017, the European Court of Human Rights acquits the Belgian State of the charge of having breached the right to liberty under article 5 §1 of the ECHR by systematically detaining asylum seekers at its external border at the national airport, as long as a (prima facia) vulnerability assessment has been undertaken, the duration of the detention remains reasonable and detention conditions are adequate.  Two dissenting judges however do not consider this sufficient to ensure that the detention is not arbitrary. Continue reading

The ‘limits of human rights law’: dissenting androcentric voices in Talpis v. Italy

By Fleur van Leeuwen, LL.M. Ph.D., human rights researcher and lecturer

In March this year the European Court of Human Rights (Court) concluded that Italy had violated the human rights of Talpis, a Moldovan/Romanian woman living in Italy who had for years endured domestic abuse by the hands of her Moldovan husband. The violence had culminated in the death of her son and a life threatening chest wound to herself. The Court found that the Italian authorities had not acted with the required due diligence to protect the applicant from harm and held that Italy had violated articles 2 (the right to life), 3 (freedom from torture, inhuman and degrading treatment) and 14 (non-discrimination). Two judges did not agree with the decision [on this case, see the blog post by Lourdes Peroni here]. Continue reading

Victims placed at the centre in Beslan School Siege Judgment (Tagayeva and Others v. Russia)

By Jessica Gavron and Jarlath Clifford, European Human Rights Advocacy Centre (EHRAC, based at Middlesex University School of Law)

Last month the European Court of Human Rights (“the Court”) found that Russia violated the right to life of 409 victims of the Beslan school siege. The judgment in Tagayeva and Others v. Russia has been described as a high watermark for the human rights protection of hostages and for confirming the responsibility of states in conducting counter-terrorism operations under the European Convention on Human Rights. Continue reading