CEDH · PRESS;CHAMBERJUDGMENTS;ENG — 2 septembre 2010

.s800EAC49 { font-size:12pt } .sA678F94A { margin-top:0pt; margin-bottom:0pt; text-align:right; font-size:11pt } .s29100277 { font-family:Arial; font-weight:bold } .s598389F8 { margin-top:0pt; margin-bottom:0pt; text-align:center; font-size:11pt } .sBB9EE52A { font-family:Arial } .s7ED160F0 { text-decoration:none } .s8304C6AF { font-family:Arial; font-size:7.33pt; font-weight:bold; vertical-align:super; color:#0069d6 } .sA36B60A1 { font-family:Arial; font-style:italic } .sFE10DC93 { margin-top:0pt; margin-bottom:0pt; text-align:center } .sE202B2ED { font-family:Arial; font-size:11pt; font-weight:bold; font-style:italic; text-decoration:underline; color:#0069d6 } .sE0D34C67 { font-family:Arial; font-size:11pt; font-weight:bold; font-style:italic } .s1F6AC3E7 { font-family:Arial; font-size:11pt; font-style:italic } .s3F59B822 { font-family:Arial; font-weight:bold; text-transform:uppercase } .s4DDA3AA3 { font-family:Arial; font-weight:bold; font-style:italic } .s2E932ED2 { margin-top:0pt; margin-bottom:0pt; font-size:11pt } .s99A63BFE { margin-top:0pt; margin-bottom:0pt; text-align:left; font-size:11pt } .sEB10024A { font-family:Arial; font-size:7.33pt; vertical-align:super; color:#000000 } .s4E9FF9F2 { margin-top:0pt; margin-bottom:0pt; text-align:left; page-break-inside:avoid; page-break-after:avoid; font-size:11pt } .s906CA806 { margin-top:0pt; margin-bottom:0pt; page-break-inside:avoid; page-break-after:avoid; font-size:11pt } .sADADF4A7 { font-family:Arial; text-decoration:underline } .s11AD46B1 { font-family:Arial; font-size:7.33pt; vertical-align:super; color:#0069d6 } .s32563E28 { margin-top:0pt; margin-bottom:0pt } .s4BAE41EE { font-family:Arial; font-size:11pt } .s92A5AB2 { font-family:Arial; font-size:11pt; text-decoration:underline; color:#0069d6 } .sC7EAD8B { font-family:Arial; font-weight:bold; text-decoration:underline } .sCB9E0544 { margin-top:0pt; margin-bottom:0pt; text-align:left } .sC90828B6 { font-family:Arial; font-size:11pt; text-decoration:underline } .sA101A847 { font-family:Arial; font-size:11pt; font-weight:bold } .sF6A12959 { width:33%; height:1px; text-align:left } .s5FFF0A7F { margin-top:0pt; margin-bottom:0pt; font-size:9pt } .sBACB86A2 { font-family:Arial; font-size:6pt; vertical-align:super; color:#0069d6 } .s68F1ED97 { font-family:Arial; font-size:6pt; font-style:italic; vertical-align:super; color:#0069d6 } .s2EB42ED2 { margin-top:0pt; margin-bottom:0pt; font-size:10pt } .sB853CD25 { font-family:Arial; font-size:9pt } .s163D3B2F { font-family:Arial; font-size:9pt; text-decoration:underline; color:#0069d6 } 624 02.09.2010   Press release issued by the Registrar   Chamber judgment Not final [1]   Y.P. and L.P. v. France (application no. 32476/06)     MEMBER OF POLITICAL OPPOSITION AND HIS FAMILY at RISK OF ILL-TREATMENT IF REMOVED TO BELARUS   Unanimously   Violation of Article 3 (prohibition of inhuman or degrading treatment) of the European Convention on Human Rights if the applicants were removed to Belarus     Principal facts   The applicants, Y.P. and his wife, L.P., are two Belarus nationals who were born in 1966 and 1967 respectively and are currently living illegally in France. They are an engineer and a school teacher respectively and have three children.   In Belarus, Y.P. was arrested, detained and beaten by the police for his activities as a member of the Belarus Popular Front, including in February 1999 for acts of “hooliganism”, an episode referred to in a report [2] by the “Viasna” Human Rights Centre. In October of that year he was detained and beaten by the authorities for having participated in the “Freedom march” in Minsk.   Between 2002 – when he was allegedly attacked following his election as chairman of the party’s central committee in Mogilev – and 2004, Y.P. began the process of requesting asylum in Germany and Norway, without success. In October 2004 he was allegedly taken to a forest by police officers and beaten unconscious. Y.P. also claimed to have been subjected to violence when he was placed under house arrest on the eve of the parliamentary elections. His son, who is a member of the same party, was arrested on various occasions, including in October 2004 when he was handing out pamphlets campaigning against changes to the Belarus Constitution enabling the President to remain in office for life. A few months previously the young man sustained a skull injury after being detained for taking part in an anti-dictatorship rally.   In February 2005, on arriving in the French city of Strasbourg, the applicants immediately lodged an application for asylum with the French Office for the Protection of Refugees and Stateless Persons (“OFPRA”), which was refused on the ground that Y.P. had not given a sufficiently detailed account of his political involvement and the alleged persecution.   According to medical certificates drawn up in Strasbourg in the autumn of 2005, Y.P. had a scar on his forehead and L.P. was suffering from “severe anxiety and depression, directly linked to the trauma to which she [had been] subjected in Belarus”. The applicants’ son also underwent surgery in Strasbourg for an injury to his right arm.   The Refugee Appeals Board, to which the applicants appealed, upheld the refusal of the asylum application. The family then travelled to Norway, Sweden and Denmark. They were removed from Denmark to France, where orders for their deportation were issued in 2007 and 2008. In March 2008 the applicants’ young son, born in 2006, was admitted to hospital in Paris because of his family’s precarious living conditions.   On 29 April 2008, following a request for review by the applicants, who argued that a return to Belarus would result in their being imprisoned for between two and five years, OFPRA   again refused them asylum. After being placed in the Rouen administrative detention centre, they lodged a request with the European Court of Human Rights seeking the suspension of the order for their removal. The Court granted the request under Rule   39 of its Rules of Court (interim measures), for the duration of the proceedings before it. After their asylum application was refused by OFPRA the applicants appealed unsuccessfully to the National Asylum Tribunal (formerly the Refugee Appeals Board).     Complaints, procedure and composition of the Court   Relying in particular on Article   3, the applicants alleged that they would be at risk of ill ‑ treatment if they were removed to Belarus.   The application was lodged with the European Court of Human Rights on 13 July 2006.   Judgment was given by a Chamber of seven judges, composed as follows:   Peer Lorenzen (Denmark), President , Renate Jaeger (Germany), Jean-Paul Costa (France), Karel Jungwiert (Czech Republic), Rait Maruste (Estonia), Isabelle Berro-Lefèvre (Monaco), Mirjana Lazarova Trajkovska (“the former Yugoslav Republic of Macedonia”), Judges , and also Claudia Westerdiek , Section Registrar.     Decision of the Court   Exhaustion of domestic remedies   An administrative appeal with suspensive effect was available in France to non-nationals in respect of whom a deportation order had been issued, by which they could apply to have the order set aside within 48 hours of its being served. The applicants could not be criticised for not having lodged such an appeal given that their earlier asylum application had been unsuccessful and the situation in Belarus had remained the same. The Court reiterated that an applicant who had exhausted a remedy that was apparently effective and sufficient could not be required also to have tried others that were available but probably no more likely to be successful. Accordingly, the Court took the view that the applicants had demonstrated the existence of special circumstances dispensing them from the obligation to exhaust the remedy referred to by the French Government. Their application was therefore admissible.   Article 3   The Court considered Y.P.’s account to be credible: he had provided evidence confirming his political involvement and the persecution to which he had been subjected, in particular in the form of statements from the association “Viasna” and medical certificates. In their decision refusing Y.P.’s asylum application – on the grounds that his statements contained few personal or other details – the French authorities had made no mention of any international report concerning the situation in Belarus. Furthermore, they had not regarded the alleged continuation of his political activities in France or the fate of other opponents of the regime as indications that Y.P. might be wanted by the authorities.   The passage of time did not automatically lessen the risks faced by Y.P. in Belarus. Although the Council of Europe [3] had recently observed some positive developments with regard to democracy in Belarus, it also noted obstacles to restoration of the country’s special guest status with the Council of Europe, which had been suspended in 1997 on account of the deteriorating human rights situation and in particular the ongoing harassment of opponents of the regime. The Court noted in that regard that an individual who had been engaged in political activities similar to Y.P.’s had disappeared in unexplained circumstances and that others were arrested on a regular basis.   The extent of Y.P.’s involvement in campaigning was sufficiently demonstrated by his activities in Mogilev. Furthermore, the likelihood that information about him and his family would be made available to the Belarus authorities should they return was reinforced by the brutality and intimidation to which their son had been subjected. Their application for asylum in France was also liable to be seen as “discrediting Belarus” [4] , an offence punishable by imprisonment under the Belarus Criminal Code. The members of Y.P.’s family might also be at risk of persecution purely on account of their association with him.   Accordingly, the Court found that the applicants’ removal to Belarus at the present time would amount to a violation of Article   3.   Article 41   By way of just satisfaction, the Court held that the finding of a violation constituted in itself sufficient just satisfaction for non-pecuniary damage.   ***   The judgment is available only in French. This press release is a document produced by the Registry. It does not bind the Court. Decisions, judgments and further information about the Court can be found on its Internet site . To receive the Court’s press releases, you can subscribe to the Court’s RSS feeds .   Press contacts [email protected] / +33 3 90 21 42 08 Céline Menu-Lange (telephone: + 33 3 90 21 58 77) Emma Hellyer (telephone : +33 3 90 21 42 15) Tracey Turner-Tretz (telephone: + 33 3 88 41 35 30) Kristina Pencheva-Malinowski (telephone: + 33 3 88 41 35 70) Frédéric Dolt (telephone : + 33 3 90 21 53 39) Nina Salomon (telephone : + 33 3 90 21 49 79)   The European Court of Human Rights was set up in Strasbourg by the Council of Europe Member States in 1959 to deal with alleged violations of the 1950 European Convention on Human Rights. [1] Under Articles 43 and 44 of the Convention, this Chamber judgment is not final. During the three-month period following its delivery, any party may request that the case be referred to the Grand Chamber of the Court. If such a request is made, a panel of judges considers whether the case deserves further examination. In that event, the Grand Chamber will hear the case and deliver a final judgment. If the referral request is refused, the Chamber judgment will become final on the   day the   request is rejected. Once a judgment becomes final, it is transmitted to the Committee of Ministers of the Council of Europe for supervision of its execution. Further information about the execution process can be found here: www.coe.int/t/dghl/monitoring/execution. [2] Human Rights infringements in Belarus , 1999. [3] Parliamentary Assembly Resolution 1671 (2009) on the situation in Belarus . [4] “Discrediting” in this context means “the fraudulent representation of the political, economic, social, military or international situation of the Republic of Belarus, the legal status of its citizens or its government agencies”. Special Rapporteur on the situation of human rights in Belarus (report of 15 January 2007, A/HRC/4/16).