February 18, 2022
On 22 July 2021 the European Court of Human Rights (ECtHR) rendered a judgment that could be relevant to the presently sensitive topic of Western Sahara – E.H. v. France, application no. 39126/18. The first of its kind, the judgment concerns the expulsion of an asylum seeker of Sahrawi origin – the ethnicity of the population of Western Sahara – to Morocco – an occupying power that has been militarily present in Western Sahara since 1976. The status of the Sahrawi population and the long-lasting pursuit of their right to self-determination and independence have been on the agenda of the United Nations and the international (human rights) community for decades. For the most part, the status of the Sahrawi population has been high up on the Court of Justice of the European Union’s (CJEU) roll in the past few years (see e.g., here, and here), as well as academic and public campaigns in Europe and around (see e.g., here, here, and here). In E.H. v. France, the European Court of Human Rights (ECtHR) had an opportunity to have its say on the subject, albeit on an individual asylum case level.
The case at issue concerns a ‘Moroccan national of Sahrawi origin’ who entered France in 2018 and applied for asylum on the basis of his ethnic origins as well as political background, including campaigning actively for the Sahrawi cause. After his eventual expulsion to Morocco, E.H. filed a complaint to the ECtHR claiming that France’s rejection of his asylum application, and the subsequent suffering he endured upon expulsion from France to Morocco, violated Article 3 and 13 of the ‘ECHR. However, with no avail to E.H., the ECtHR ruled no violation of Article 3 and 13 ECHR.
In his statements before French avenues, E.H. asserted that his Sahrawi background put him at risk in Morocco. Triggered by the assassination of one of his relatives by police in Rabat in April 2011, he started campaigning for the Sahrawi cause. For instance, he organized public events on the university campus aimed at sensitizing his fellow colleagues for the Sahrawi cause. E.H. was arrested, arbitrarily detained, and tortured by Moroccan police on several occasions. A last arrest took place amid a violent dispersing by the police of a gathering E.H. instigated at the university campus. E.H. also shared a few other personal incidents of beatings, torture, and humiliation, and spoke out about specific incidents that occurred during times when he was questioned by Moroccan police officers. Furthermore, E.H. disclosed the ways in which he was humiliated (e.g.: he was once released on the highway miles away from home, without a phone and shoes). He also exposed systematic crimes of torture and murder occurring to his fellow Sahrawis in Morocco.
‘Guilty’ of his ethnic origins and unable but to stand in solidarity against the targeting and discrimination of Sahrawis, E.H. had a target on his back. “Fearing for his life” (or the least hoping for a normal one), he decided to flee Morocco and head to France. Accordingly, E.H. sought financial and procedural assistance from family and friends in Morocco. In order not to risk being arrested in Rabat, he had acquired a student visa from the Ukrainian consulate in Rabat via an “intermediary” and had flown from Marrakesh, not Casablanca, as to avoid scrutiny checks. France, more particularly the waiting zone of Aéroport de Paris-Charles-de-Gaulle (ZAPI), was where he winded up next, for he had neither a Schengen visa nor a residence permit to be allowed the entry to France.
The following day, 19 July 2018, in the waiting zone, E.H. requested entry to France to submit an asylum application before the French Office for the Protection of Refugees and Stateless Persons (OFPRA). Meanwhile, an officer from OFPRA had “interviewed” E.H. concerning his intentions for entry. On the third day, and upon the OFPRA’s recommendation, the Minister of the Interior refused E.H.’s leave to enter France in order to claim asylum; on the grounds that his request was manifestly ill-founded. On the fourth day, E.H applied to the Paris Administrative Court to have the order of 20 July 2018 set aside. On the very same day, the Court rejected the application to set aside the order of the Minister of the Interior. On two occasions, E.H. refused to board the aircraft to Morocco; he was therefore arrested and taken into police custody for wilfully evading the enforcement of an order refusing entry to French territory. In about a month’s time, E.H. exhausted all available remedies in France e.g., the Melun Administrative Court, further OFPRA procedures, the National Asylum Court (CNDA). After also rejecting his request to re-enter Ukraine, the French authorities succeeded in forcefully removing E.H. to Morocco on 24 August 2018.
Failing to obtain adequate protection at the national level, the applicant – via the CNDA appointed legal-aid lawyer – complained before the ECtHR that his removal to Morocco had been apt to put him at risk of treatment contrary to that of Article 3 ECHR – the prohibition of torture, inhuman or degrading treatment. He also asserted that, due to his removal from France, the treatment contrary to Article 3 ECHR to which he had been subjected before fleeing Morocco, had reoccurred to him upon return. Furthermore, he relied on Article 13 in conjunction with Article 3 to claim a breach of his right to an effective remedy in France. With regard to any additional evidence, E.H. did not furnish further documents to the ECtHR. The ECtHR in its judgment of 22 July 2021 unanimously held that the removal order against the applicant had neither given rise to a violation of Articles 3 nor 13 ECHR. The judges found no violation considering that the evidence in the case file did not provide substantial grounds for believing that the applicant’s return to Morocco had placed him at real risk of treatment contrary to Article 3 and considering that the remedies exercised by the applicant were effective. The remainder of this blog sheds light on the real risk requirement vis-à-vis Sahrawis.
In its reasoning, the Court paid attention to the general principles regarding the assessment of applications for asylum under Article 3 ECHR, and cautiously applied these principles drawn from consistent case law (F.G. v. Sweden, para. 111).
The said principles entail that the right to control the entry, residence, and expulsion of non-nationals rests with states as a matter of principle. However, the expulsion of an alien by a state may give rise to a violation of Article 3 ECHR. This is the case where there are substantial grounds to believe that the person in question, if deported, would face a ‘real risk’ of being subjected to treatment contrary to Article 3 in the destination country (aka the principle of non-refoulement or the Soering principle) (Paras. 127-128). In relation to asylum applications under Article 3, the ECtHR, as a matter of practice, conducted an assessment of the applicant’s risk of persecution. In this regard, the Court took the opportunity to emphasize that, although it is not for the Court to examine asylum requests, it must verify that the assessment carried out by the authorities of the State is adequate and sufficiently supported by internal data; data from other reliable sources, such as other states or United Nations agencies; and reliable non-governmental organizations (Para. 128). The principle of non-refoulement is also a principle of customary international law and is reflected in the 1951 UN Refugee Convention, outlining the rights of refugees and the legal obligations of States to protect them, as well as Article 3 of the Convention against Torture (CAT), and Article 7 of the International Covenant on Civil and Political Rights (ICCPR).
The Court distinguished two types of asylum claims (para. 131). On the one hand, the Court stressed that in situations of asylum claims based on the ‘individual risk’ it is for the person seeking asylum to substantiate such a risk and it is up to the State to dispel any doubts (para 130-132). On this point, the Court took the chance to establish that asylum seekers must be given ‘the benefit of the doubt’ when assessing the credibility of their statements and reliability of the documents, and thus the implausibility of the applicant’s account does not per se affect the general credibility of the applicant’s allegations (para.131). On the other hand, if the risk stems from a ‘general and well-known situation’, especially when it has been brought to the attention of the national authorities that the asylum seeker is probably part of a group systematically exposed to a practice of ill-treatment, the authorities of the State must carry out an assessment of the risk on their own initiative e.g., gather evidence and data (para. 132-133).
Such a methodological differentiation is relevant to establish that the burden of proof or establishing the reality of the facts weighs on both the asylum seeker and the competent national authorities (para. 132). It mainly rests on the asylum seeker to present all the evidence substantiating his application, but such a requirement ‘relaxes’ when, or to the extent that, the applicant claims to be part of a group systematically exposed to a practice of ill-treatment. In that case, the applicant must try to demonstrate that he belongs to that risk group, but in the establishment of the seriousness of risk the Court relies on all the data provided and, if necessary, obtain further data ex officio (Para.134).
Subsequently, the Court applied these principles to the present case, separating the examination of the general situation in Morocco regarding the Sahrawi ethnic group and political activists, and the applicant’s personal situation prior and upon removal to Morocco.
As to the general situation assessment, the Court noted that this case is the ‘first referral’ to it concerning the return to Morocco in which the applicant alleges that Article 3 risks result from the fact that he is of ‘Sahrawi origin’ and has been ‘active in support of the Sahrawi cause’ (para. 136). The Court explicitly recognized that ‘Moroccan national activists committed to the independence of Western Sahara and activists for the Sahrawi cause’ are a group particularly at risk. Nonetheless, the Court neither denied nor confirmed whether a person of ‘Sahrawi origin’ is part of a group at risk in Morocco: The Court did not entertain such a possibility altogether.
As for the applicant’s personal situation, the Court hence sought to see evidence furnished by the applicant proving that his return to Morocco would put him at risk of being subjected to treatment contrary to Article 3. In this regard, the Court, again, dismissed any reference to ‘Sahrawi origin’; it focused entirely on the extent to which E.H had been involved in ‘heavy activism’ for the ‘Sahrawi cause’. The Court agreed with the conclusion reached by the OFPRA, the CNDA, and the administrative courts of Paris and Melun that it does not emerge from the documents presented by the file that there are serious and proven grounds to believe that the applicant’s return to Morocco had exposed him to real risk under Article 3. Such a conclusion was reached on the basis that E.H. did not present ‘precise evidence’ supporting his allegations and that he remained ‘very evasive’ as to the treatment he went through in Morocco. Notably, the totality of the supporting evidence submitted by E.H. before French avenues were: (1) photocopies to prove that E.H. was tortured (both French courts and the ECtHR agreed the images are not ‘clear’); (2) the names of two cousins of E.H who were granted asylum in France; (3) the names of two family members who were assassinated in Morocco due to political activism; (4) copies of the United Nations Mission for the Organization of a Referendum in Western Sahara (MINURSO) establishing his parents’ origins; (5) a certificate issued by the president of the association of Sahrawis in France asserting E.H.’s activism; (6) a certificate issued by the president of the association for victims of serious human rights violations, stating that E.H. is an activist, has taken part in numerous peaceful protests, has been beaten several times and that he is a “well-known militant” whose safety in Morocco cannot be assured.
Essentially, the Court found the story of E.H. regarding his travel to France highly improbable and argued that he remained very evasive about the particularities of his case. Hence, the Court concluded that the applicant was not involved in extensive political activities in Morocco to such an extent that his life would be at risk.
Observing the sheer number of recent cases pertinent to Western Sahara around the world, especially those before the CJEU, as well as the novelty of the case before the ECtHR, the E.H. case is of seminal importance both in observing the ECtHR’s approach to issues relevant to Western Sahara, and, more fundamentally, in assessing the consistency of the ECtHR’s line of argumentation with other courts/institutions. The Court was successful in highlighting the novelty of the subject before it. However, it failed to provide an equivalently original interpretation to the question of whether a person ‘Sahrawi origin’ can be deemed a separate risk group. The Court seems to have chosen not to engage with the question altogether, and it did not explain why.
In my view, the ECtHR missed an opportunity to acknowledge and address the question of Sahrawis living in Morocco, the majority of which have been suffering systematic human rights violations for decades. Sahrawis stem from the Western Sahara, a territory on the UN’s list of non-self-governing territories since 1963. The UN General Assembly, the African Union , England and Wales High Court and the High Court of South African Court have characterised the presence of Morocco in the territory as ‘occupation’. Having been occupied by Morocco, Sahrawis were denied a referendum to choose between independence or integration into Morocco. Similarly, the majority of international legal scholars describe Morocco’s presence as occupation – or at best outright unlawful under international law. In its 1975 Advisory Opinion, the International Court of Justice (ICJ) recognised the right of Sahrawis to self-determination – a jus cogens right -, but with no avail. Sahrawis have thus been forcefully displaced to remote camps on the borders of Algeria; banished behind the ‘Berm’ to live in dire conditions; or stayed to face discrimination and widespread use of arbitrary detention and torture in Morocco. Notably, such violations are merely a part of the package of human rights violations that comes with the denial of the right to self-determination. France – the respondent party in the case in question – has substantial business presence in Morocco and Western Sahara, and actively works to prevent the inclusion of a human rights component into MINURSO‘s mandate, rendering MINURSO the only UN peace keeping mission without permission to report on human rights violations. Notably also, the ceasefire between Morocco and Polisario Front, the main national liberation movement of the Western Sahara, has ended in November 2020 (before the ECtHR handed down its decision on E.H.’s case), resurrecting an aggressive conflict. Now, it is not clear how the ECtHR makes sense of such developments in relation to potential forcible returns of people of Sahrawi origin to Morocco pursuant to Article 3 ECHR.
Indeed, E.H. holds a Moroccan nationality. However, it could be argued that the ECtHR, by recognizing the ‘Moroccan nationality’ of a person of Sahrawi origin, is acknowledging Morocco’s sovereignty over the Western Sahara. It goes without saying that the Moroccan nationality (the only leeway for Sahrawis to acquire a passport) was imposed on E.H. by the government of Morocco by virtue of its illegal acts annexing Western Sahara. In this connection, the Swiss Federal Supreme Court (FSC), on 4 August 2021, issued an interesting decision that can provide insights on the nationality status of a man originating from Western Sahara. The FSC ruled that since Switzerland does not recognise Morocco’s sovereignty over Western Sahara, all persons of Sahrawi origin would be recorded as having ‘no nationality’. It appears that a national court provided a more nuanced view to the issue compared to the ECtHR. By my estimation, if the ECtHR delves into such nuance, it would have impacted E.H.’s status differently, but also the status and human rights of Sahrawis across the globe.
With regard to the personal situation assessment, it follows that E.H. was denied the opportunity to benefit from the (likely favourable) outcome if the Court were to acquire further ex officio data on the status of Sahrawis in Morocco. Furthermore, E.H. did not seem to have served by ‘the benefit of the doubt’ owed to him, nor did he benefit from the principle that the Court itself established in this case: the implausibility of the applicant’s account is not a ground to diminish the credibility of his allegations (para. 131). E.H.’s statements and documents were both regularly questioned before French avenues, suggesting erroneously that the French government is well-aware of the ‘plausible’ ways of fleeing Morocco via airport. E.H.’s initial statements – extracted on the second day in the waiting zone via an OFPRA officer; without e.g., legal assistance; PTSD diagnoses; and proper translation – had been used against E.H. before all French avenues as well as the ECtHR. Essentially, both the French courts the ECtHR held the view that E.H. has not provided sufficient documents e.g., court orders or warrants to prove his allegations. Here, French Courts and the ECtHR seem to have made assumptions regarding how ‘Morocco’ deals internally with ‘Sahrawis’ and in what form e.g., orally or in writing. Unlike the ECtHR, the Moroccan regime has an experience (Rafaa v. France (no. 25393/10)) with how its political targets could be protected in Europe under Article 3 ECHR. In all likability, Morocco does its best not to leave a trail, especially when it comes to the Western Sahara. To say the least, the huge context I attempted to briefly highlight here, as well as the myriad of unresolved questions, did not ‘relax’ the burden of proof on E.H. concerning the establishment of his personal situation.
Having established that, the E.H. v. France-case is a missed opportunity to engage with the question of the status of Sahrawi individuals; either those living under Moroccan ruling or those outcasted beyond the Berm and in refugee camps in Algerian desert. Essentially, the present case is a missed opportunity to provide a deeper meaning to the norms of human rights. The ECtHR is, therefore, invited to reconsider its approach down the road.
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