CEDH · CASELAW;CLIN;ENG — 2 octobre 2012

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Belgium - 33210/11 Judgment 2.10.2012 [Section II] Article 13 Effective remedy Rejection of documentary evidence submitted by asylum seekers without any prior verification of its authenticity: violation   Facts – The applicants and their three children were Afghan nationals living in Belgium. They arrived in Belgium in March 2011 on a flight from Moscow. As they did not have the legally required documents, they were refused entry and the Aliens Office issued directions for their removal on 19   March 2011. The applicants, at the same time, applied for asylum. They told the Belgian authorities that they were Afghan nationals, members of the Sikh minority, and that they had fled Afghanistan for India in 1992 because of the civil war and the attacks and kidnappings endured by the Sikh and Hindu communities there at that time. They had later taken refuge in Moscow. In 2009 the applicants had apparently returned to Kabul, but had not felt safe there and had fled to Belgium. On 13   April 2011 the Office of the Commissioner General for Refugees and Stateless Persons (“CGRA”) rejected their applications on the grounds that they had not provided evidence of their Afghan nationality. The applicants appealed against those decisions and produced new documents in evidence. On 24   May 2011 the Aliens Disputes Board (“CCE”) dismissed the applicants’ appeals and clearly confirmed the CGRA’s reasoning, agreeing with it that the applicants had been unable to prove their Afghan nationality or the veracity of the protection granted to them by the United Nations High Commissioner for Refugees (UNHCR). Once the asylum procedure had been closed, the removal decision by the Aliens Office dated 19   March 2011 became enforceable. On 30   May 2011 the applicants applied to the European Court for an interim measure, under Rule   39 of the Rules of Court, to have their removal to Russia suspended, and their request was granted for the duration of the proceedings before it. The applicants were thus given leave to remain in Belgium and were released from the transit zone, as the removal order was no longer immediately enforceable. On 22   June 2011 they lodged an administrative appeal on points of law before the Conseil d’Etat , but it was dismissed on 8   July 2011. Law – Article 13 in conjunction with Article   3: The risk of the applicants’ removal to Russia had been suspended with the implementation by the Belgian Government of the interim measure indicated on 30   May 2011. However, the applicants’ status had not changed since there was still a removal order against them and they were obliged to leave Belgium. The applicants’ fear that the Russian authorities might then send them back to their State of origin was not manifestly ill-founded. As regards their fears about treatment in Afghanistan, the applicants had arrived at the Belgian border with identity documents and copies of pages from two Afghan passports and copies of UNHCR attestations had subsequently been produced. In addition there were a number of reports about discrimination and violence against the Sikh minority in Afghanistan. In the light of that material, the allegations of the applicants, who, in filing an asylum application, had referred to the asylum authorities their fears about a return to Afghanistan, called for a detailed examination by the Belgian authorities and they should have been able to defend their allegations before those authorities in accordance with the requirements of Article   13. Neither the CGRA nor the CCE had sought to ascertain, even incidentally, whether the applicants faced risks within the meaning of Article   3. Such an examination had been overshadowed at the CGRA level by an examination of the applicants’ credibility and by the doubts as to the sincerity of their statements. No additional enquiries had been made in order, for example, to authenticate the identity documents presented by the applicants, a step which would have enabled the risks in Afghanistan to be verified or ruled out with greater certainty. The CCE had not made up for that omission even though the applicants had presented to it documents capable of dispelling the doubts expressed by the CGRA as to their identities and previous movements, namely e-mails from a UNHCR official in New Delhi that had been sent through the intermediary of the Belgian Committee for Aid to Refugees, the UNHCR’s partner in Belgium, subsequent to the CGRA’s decision. Attached to these e-mails were statements from the UNHCR certifying that the applicants had been registered as refugees under the supervision of the UNHCR and confirming the dates declared by the applicants, thus supporting the story they had given when questioned by the Aliens Office. The CCE had given no weight to the documents on the grounds that they were easy to falsify and the applicants were not able to supply the originals. The question raised by the applicants, as to whether by doing so the CCE had hidden behind a strict interpretation of the rules on the filing of new documents, went beyond the Court’s subsidiary remit. It sufficed, however, for the Court to note that the only important question in its view, namely whether the documents supported the allegations of the risks in Afghanistan, had not given rise to any investigation, whereas enquiries could have been made, for example, at the offices of the UNHCR in New Delhi, as the UNHCR itself had recommended. In view of the weight attached to Article   3 and the irreversible nature of the potential harm if the risk of ill-treatment materialised, it had been for the domestic authorities to carry out an examination for the purpose of confirming the belief, however legitimate it might have been, that the application for protection was ill-founded, regardless of the scope of the supervisory authority’s remit. The approach actually taken, consisting of dismissing those documents, despite their relevance for the protection request, finding them to have no probative value and without verifying their authenticity as they could easily have done by contacting the UNHCR, had been at odds with the close and rigorous scrutiny that could have been expected of the domestic authorities under Article   13, and had failed to ensure effective protection against treatment in breach of Article   3. Accordingly, the domestic authorities had not examined, in accordance with the requirements of Article   13, the merits of the applicants’ arguable complaints under Article   3. Conclusion : violation (unanimously). Article 41: finding of a violation constituted sufficient just satisfaction in respect of any non-pecuniary damage.   © Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court. Click here for the Case-Law Information Notes