issued by the Registrar of the Court

ECHR 065 (2011)

23.06.2011

Czech authorities should not have expelled asylum seekers to

Guinea without examining risk of ill-treatment

In today’s Chamber judgment in the case Diallo v. the Czech Republic (application

no. 20493/07), which is not final¹, the European Court of Human Rights held,

unanimously, that there had been a violation of Article 13 (right to an effective

remedy) in conjunction with Article 3 (prohibition of inhuman or degrading

treatment) of the European Convention on Human Rights.

The case concerned the complaint of two asylum seekers from Guinea that their asylum

applications had been rejected by the Czech authorities without examining their

substance, resulting in their forced return to Guinea.

Principal facts

The applicants, Ibrahima Diallo and Mamadou Dian Diallo, are two Guinean nationals

who were born in 1980 and 1985 respectively. In the autumn of 2006, they arrived at

Prague airport by plane from Dakar (Senegal), having transferred in Lisbon. They both

applied immediately for asylum claiming they would be detained, and possibly even

killed, if they returned to Guinea, where the police had been searching for them following

their involvement in activities of which the Government disapproved.

The Department for Asylum and Migration Policy of the Ministry of the Interior dismissed

their respective asylum applications under the relevant sections of the Asylum Act as

manifestly unjustified without examining their merits, stating that they had arrived from

Portugal, which was considered a safe third country. Both Ibrahima and Mamadou Diallo

applied for judicial review of the respective decision, which in the case of the latter was

rejected by the regional court in May 2007. In the case of the former, the proceedings

remained pending until they were terminated on his request; however, under the Asylum

Act they did not have a suspensive effect, as he had come from a country considered a

safe third country.

As neither of the applicants complied with the order to leave the country, administrative

expulsion proceedings were brought against them, In that context, the Ministry of the

Interior gave its opinion that there were no obstacles to their removal, as they were

facing expulsion to Portugal, which was a safe country. The police issued expulsion

orders for the applicants to leave the country and their appeals against those orders

were rejected. On 15 May 2007 at about 4 a.m., without prior notice and without their

lawyers being informed, they were both removed to Guinea by plane via Brussels.

Ibrahima Diallo has been in contact with his lawyer after his removal and is currently

living in Saudi Arabia. Mamadou Diallo’s exact whereabouts are not known and his

lawyer has not managed to contact him after his removal. However, Mamadou Diallo had

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 five 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 that day.

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

signed a power of attorney for his lawyer while still in Prague, authorising him to take

any legal action relating to his expulsion.

Complaints, procedure and composition of the Court

Relying on Article 13 in conjunction with Article 3, the applicants complained that they

had no effective remedy for their arguable claim that they would be ill-treated if returned

to Guinea.

The application was lodged with the European Court of Human Rights on 15 May 2007.

Judgment was given by a Chamber of seven, composed as follows:

Dean Spielmann (Luxembourg), President,

Karel Jungwiert (the Czech Republic),

Boštjan M. Zupančič (Slovenia),

Mark Villiger (Liechtenstein),

Isabelle Berro-Lefèvre (Monaco),

Ann Power (Ireland),

Angelika Nußberger (Germany), Judges,

and also Claudia Westerdiek, Section Registrar.

Decision of the Court

Article 13 in conjunction with Article 3

The Court dismissed the Czech Government’s objection that since Mamadou Diallo had

not contacted his lawyer at any time after his removal, he had to be deemed to have lost

interest in pursuing the case. It noted that by signing the power of attorney, authorising

his lawyer to act on his behalf and to represent him before any court in relation with his

expulsion, Mamadou Diallo had sufficiently demonstrated that he wished the lawyer to

make an application to the Court on his behalf. It was further not Mr Diallo’s fault that,

having been deported to Guinea at 4 a.m. without prior notice, his lawyer had lost all

contact with him.

The Court considered that both applicants had had an arguable claim, for the purpose of

Article 13, that upon their return to Guinea they risked being ill-treated in violation of

Article 3. In particular, the Court took note of various reports that documented human

rights violations in Guinea in 2006 and 2007, drawn up in particular by the UN Human

Rights Council and the organisations Amnesty International and Human Rights Watch.

The personal circumstances of the applicants made their fears well-founded, as they

were sought by the police for their political activities, participating in strikes and

demonstrations and presiding an opposition youth organisation respectively.

As regards the asylum proceedings, the Court observed that the applicants' claims that

they risked being ill-treated in Guinea had not been subjected to close and rigorous

scrutiny by the Ministry of the Interior, as would have been required by the Convention,

or in fact to any scrutiny at all, on the grounds that they had arrived from Portugal,

which was considered a safe third country. While it was not the Court’s task to interpret

European Union law or domestic law to establish whether the Czech Republic or Portugal

should have examined the asylum request, it was sufficient to note that the applicants

had not been expelled to Portugal but to their country of origin, Guinea.

At the same time, their requests for judicial review had not had an automatic suspensive

effect. Ibrahima Diallo could therefore not be faulted, as was suggested by the Czech

Government, for not having exhausted the domestic review proceedings. In his case, the

domestic courts had not reviewed his request at all. In Mamadou Diallo’s case, the

domestic court had not scrutinised his arguable claim under Article 3, but had confined

itself to confirming the decision that his application was unjustified because he had

arrived from a safe third country. In those circumstances, the asylum proceedings had

not provided the applicants with an effective domestic remedy within the meaning of

Article 13.

As regards the administrative expulsion proceedings, the authorities had not examined

the applicants’ arguable claim under Article 3 either. In particular, the conclusion of the

Ministry of the Interior that there were no hindrances to the expulsion had been based

on the assumption that they were liable to be expelled to Portugal only. Lodging a

request for judicial review of the administrative expulsion decision and a possible

subsequent constitutional appeal would not have been an effective remedy, as the

Constutional Court would not have reviewed the merits of the claims under Article 3 but

would have merely examined the question whether the applicable provisions of domestic

law were in conformity with the Constitution. Furthermore, such proceedings would not

have had a suspensive effect on the expulsion.

The Court concluded that there had been a violation of Article 13 taken in conjunction

with Article 3 on account of the fact that none of the domestic authorities had examined

the merits of the applicants' arguable claim under Article 3 and there had been no

remedies with automatic suspensive effect available to them to challenge the decision

not to grant them asylum and to expel them.

Article 41

Under Article 41 (just satisfaction) of the Convention, the Court held that the Czech

Republic was to pay Ibrahima Diallo 5,000 euros (EUR) in respect of non-pecuniary

damage and EUR 400 in respect of costs and expenses. It further held that the question

of just satisfaction was not ready for decision as regards Mamadou Diallo and invited the

parties to submit their written observations on the matter within three months from the

date on which the judgment becomes final.

The judgment is available only in English.

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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.