Introduction to Non-refoulement principle and
concept of vulnerable person
Tallinn 3.6.2014 Estonian Academy of Security Sciences.
Jari Kähkönen, Director, Joutseno Reception Centre
The project is co-financed by European Return Fund and Estonian Ministry of Interior
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Part 1. Principle of Non-Refoulement
• The principle of non-refoulement is the cornerstone of asylum
and international refugee law. Following from the right to seek
and enjoy in other countries asylum from persecution, as set
forth in Article 14 of the Universal Declaration of Human Rights,
this principle reflects the commitment of the international
community to ensure to all persons the enjoyment of human
rights, including rights to life, to freedom from torture and cruel,
inhuman or degrading treatment or punishment, and to liberty
and security of person. These and other rights are threatened
when a refugee is returned to persecution or danger
(http://refworld.org/docid/438c6d972.html)
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Principle of non-refoulement
• " Under established international law, states have the right to
decide whether to allow entry to aliens. Nevertheless, foreigners
arriving in the jurisdiction at the borders or in the territory of a
state, must be treated humanely. This principle has been taken
into account in international human rights conventions by giving
consideration to the rights of these people: under international
law, persons fleeing persecution must be provided with an
opportunity to seek refugee status, those in fear of torture may
not be returned to their home country and protection must be
provided against inhuman and degrading treatment. This
principle is known as non-refoulment, and it is a key principle of
refugee law ". Jari Pirjola (2008) Shadows in Paradise – Exploring Non-refoulement as an Open Concept)
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Legal basis of non-refoulement
• Non-refoulement has been defined in a number of refugee
instruments, both at the universal and regional levels.
• At the universal level the most important provision in this respect
is Article 33 (1) of the 1951 Convention relating to the Status od
Refugees, which states that: " No Contracting State shall expel
or return a refugee in any manner whatsoever to the frontiers of
territories where his life or freedom would be threatened on
account of his race, religion, nationality, membership of a
particular social group or political opinion"
(http://refworld.org/docid/438c6d972.html).
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Non-refoulement also in other key human rights
conventions:
• European Human Rigths Convention Article 3.
• UN Convention Against Torture and Other Cruel,
Inhuman or Degrading Treatment or Punishment
• The United Nations´International Covenant on Civil
and Political Rights
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Non-refoulement also in national legislation
• Finnish Constitution 147 §: No one may be refused
entry and sent back or deported to an area where he
or she could be subject to the death penalty, torture,
persecution or other treatment violating human
dignity or from where he or she could be sent to such
an area.
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EN - Recast Qualification Directive, Directive
2011/95/EU of 13 December 2011
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Article 21
Protection from refoulement
1. Member States shall respect the principle of non-refoulement in accordance
with their international obligations.
2. Where not prohibited by the international obligations mentioned in paragraph
1, Member States may refoule a refugee, whether formally recognised or not,
when:
(a) there are reasonable grounds for considering him or her as a danger to the
security of the Member State in which he or she is present; or
(b) he or she, having been convicted by a final judgment of a particularly serious
crime, constitutes a danger to the community of that Member State.
3. Member States may revoke, end or refuse to renew or to grant the residence
permit of (or to) a refugee to whom paragraph 2 applies.
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Return Directive
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Article 5
Non-refoulement, best interests of the child, family life and
state of health
When implementing this Directive, Member States shall take
due account of:
(a) the best interests of the child;
(b) family life;
(c) the state of health of the third-country national concerned,
and respect the principle of non-refoulement.
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European Convention on Human Rights
• Article 3: No one shall be subjected to
inhuman or degrading treatment or
punishment.
• ECHR jurisprudence: expelling a foreign national may
constitute a violation of convention, if as a result of
conversion or deportation, the person in question
stands a real risk of becoming subject to torture or
other inhuman treatment, as referred to in Article 3.
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UN Convention Against Torture and Other Cruel,
Inhuman and or Degrading Treatment or Punishment.
• Article 3 1. No State Party shall expel, return
("refouler") or extradite a person to another State
where there are substantial grounds for believing that
he would be in danger of being subjected to torture.
2. For the purpose of determining whether there are
such grounds, the competent authorities shall take
into account all relevant considerations including,
where applicable, the existence in the State
concerned of a consistent pattern of gross, flagrant or
mass violations of human rights.
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Definition of torture by UN Convention Against Torture
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For the purposes of this Convention, torture means any act by which
severe pain of suffering, whether physical or mental, is intentionally
inflicted on a person for such purposes as obtaining from him or a third
person information or a confession, punishing him for an act he or a
third person has committed or is suspected of having committed, or
intimidating or coercing him or third person, or for any reason based on
discrimination of any kind, when such pain or suffering is inflicted by or
at the instigation of or with the consent or acquiescence of a public
official or other person acting in an official capacity. It does not include
pain or suffering arising only from inherent or incidental lawful
sanctions.
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UN International Covenant on Civil and Political
Rights
• Article 7. No one shall be subjected to torture or to cruel,
inhuman or degrading treatment or punishment. In particular, no
one shall be subjected without his free consent to medical or
scientific experimentation.
• Implementation overseen by The Human Rights Committee: "in
the view of the Committee, State parties must not expose
individuals to the danger of torture or cruel, inhuman or
degrading treatment or penalty upon return to another country
by way of their extradition, expulsion or refoulement ((b) the 1967
Declaration onTerritorial Asylumadopted unanimously by the United Nations General
Assembly (UNGA) as Resolution 2132 (XXII), 14 December 1967,3 Article 3
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ECHR 18.12.2012 Case of F.N and Others v. Sweden.
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2. The Court’s assessment
(a) General principles
65. The Contracting States have the right as a matter of international law and
subject to their treaty obligations, including the Convention, to control the entry,
residence and expulsion of aliens (see, inter alia, Vilvarajah and Others v. the
United Kingdom, 30 October 1991, § 102 Series A no. 215, p. 34). However,
expulsion by a Contracting State may give rise to an issue under Article 3, and
hence engage the responsibility of that State under the Convention, where
substantial grounds have been shown for believing that the person concerned, if
deported, faces a real risk of being subjected to treatment contrary to Article 3.
In such a case, Article 3 of the Convention implies an obligation not to deport the
person in question to that country (see Saadi v. Italy [GC], no. 37201/06, § 125,
ECHR 2008).
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ECHR 18.12.2012 Case of F.N and Others v. Sweden
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66. The assessment of whether there are substantial grounds for believing that
the applicant faces such a real risk inevitably requires that the Court assess the
conditions in the receiving country against the standards of Article 3 of the
Convention (see Mamatkulov and Askarov v. Turkey [GC], nos. 46827/99 and
46951/99, § 67, ECHR 2005-I). These standards imply that the ill-treatment the
applicant alleges he will face if returned must attain a minimum level of severity
if it is to fall within the scope of Article 3. The assessment of this is relative,
depending on all the circumstances of the case (see Hilal v. the United Kingdom,
no. 45276/99, § 60, ECHR 2001-II).
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ECHR 18.12.2012 Case of F.N and Others v. Sweden
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67. The Court acknowledges that, owing to the special situation in which asylum
seekers often find themselves, it is frequently necessary to give them the benefit
of the doubt when it comes to assessing the credibility of their statements and
the documents submitted in support thereof. However, when information is
presented which gives strong reasons to question the veracity of an asylum
seeker’s submissions, the individual must provide a satisfactory explanation for
the alleged discrepancies (see, inter alia, N. v. Sweden, no. 23505/09, § 53, 20
July 2010 and Collins and Akaziebie v. Sweden (dec.), no. 23944/05,
8 March 2007). In principle, the applicant has to adduce evidence capable of
proving that there are substantial grounds for believing that, if the measure
complained of were to be implemented, he would be exposed to a real risk of
being subjected to treatment contrary to Article 3 of the Convention. Where such
evidence is adduced, it is for the Government to dispel any doubts about it (see
NA. v. the United Kingdom, no. 25904/07, § 111, 17 July 2008).
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ECHR 18.12.2012 Case of F.N and Others v. Sweden
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68. As regards the general situation in a particular country, the Court has held
on several occasions that it can attach a certain importance to information
contained in recent reports from independent international human rights
protection associations or governmental sources. At the same time, the mere
possibility of ill-treatment on account of an unsettled situation in the receiving
country does not in itself give rise to a breach of Article 3. Where the sources
available to the Court describe a general situation, an applicant’s specific
allegations in a particular case require corroboration by other evidence (see, for
example, Saadi, cited above, § 131, with further references).
69. Thus, in order to determine whether there is a risk of ill-treatment, the Court
must examine the foreseeable consequences of sending the applicants to
Uzbekistan, bearing in mind the general situation there and their personal
circumstances (see Vilvarajah and Others, cited above, § 108).
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ECHR 18.12.2012 Case of F.N and Others v. Sweden
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77. However, the main issue before the Court is not whether the applicants would be
detained and interrogated by the Uzbek authorities upon return since this would not,
in itself, be in contravention of the Convention. The Court’s concern is whether or not
the applicants would be ill-treated or tortured, contrary to Article 3 of the Convention, if
returned. In examining this matter, the Court observes that it has already in previous
cases (see, Rustamov v. Russia, no. 11209/10, §§ 124-125, 3 July 2012, with further
sources) found that the practice of torture of those in police custody was systematic
and indiscriminate and concluded that ill-treatment of detainees remained a pervasive
and enduring problem in Uzbekistan. Moreover, having regard to the information from
international sources (see above §§ 40 and 45-46), the Court cannot but conclude
that the situation in Uzbekistan has not improved in this respect but that torture and
other cruel, inhuman and degrading treatment by law enforcement and investigative
officials remain widespread and endemic. In these circumstances, the risk of the
applicants being subjected to treatment contrary to Article 3 of the Convention must
be considered a real one if they were to be detained and interrogated by the Uzbek
authorities.
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ECHR 18.12.2012 Case of F.N and Others v. Sweden
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78. Here, the Court observes that the Government have referred to the case of
N.M. and M.M. v. the United Kingdom (cited above), where the Court found that
“the applicants have failed to adduce evidence capable of establishing
substantial grounds for believing that they would be exposed to a real risk of
being subjected to treatment contrary to Article 3 upon return solely on the basis
of their status as failed asylum seekers without any further distinguishing
features to bring them to the attention of the Uzbek authorities” (§ 66). The Court
further noted, in that case, that the individual profiles of the applicants were
highly significant in its assessment of the risk of arrest by the Uzbek authorities
upon return (§ 69). To the Court, the present case is clearly distinguishable from
that case in that the applicants in the case now before the Court have invoked
various grounds for fear and the Court has found reasons to believe that the
Uzbek authorities may have a special interest in the applicants, as set out
above, both in relation to the events in Andijan and the first applicant’s
membership in Birdamlik.
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ECHR 18.12.2012 Case of F.N and Others v. Sweden
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79. Reiterating the need expressed by international sources to weigh returns to
Uzbekistan with extreme caution and care (see above § 48), the Court finds that
all of the above considerations are sufficient to enable it to conclude that the
applicants would face a real and personal risk of being detained and subjected
to ill-treatment contrary to Article 3 of the Convention if returned to Uzbekistan.
There would accordingly be a violation of Article 3 of the Convention if the
applicants were expelled to their home country.
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ECHR: Case of M.S.S v. Belgium and Greece
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231. The Court reiterates that it has already considered that such conditions, which are
found in other detention centres in Greece, amounted to degrading treatment within the
meaning of Article 3 of the Convention (see paragraph 222 above). In reaching that
conclusion, it took into account the fact that the applicants were asylum seekers.
232. The Court sees no reason to depart from that conclusion on the basis of the Greek
Government’s argument that the periods when the applicant was kept in detention were
brief. It does not regard the duration of the two periods of detention imposed on the applicant
– four days in June 2009 and a week in August 2009 – as being insignificant. In the present
case the Court must take into account that the applicant, being an asylum seeker, was
particularly vulnerable because of everything he had been through during his migration and
the traumatic experiences he was likely to have endured previously.
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ECHR: Case of M.S.S v. Belgium and Greece
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233. On the contrary, in the light of the available information on the conditions at the holding
centre near Athens airport, the Court considers that the conditions of detention experienced
by the applicant were unacceptable. It considers that, taken together, the feeling of
arbitrariness and the feeling of inferiority and anxiety often associated with it, as well as the
profound effect such conditions of detention indubitably have on a person’s dignity,
constitute degrading treatment contrary to Article 3 of the Convention. In addition, the
applicant’s distress was accentuated by the vulnerability inherent in his situation as an
asylum seeker.
234. There has therefore been a violation of Article 3 of the Convention.
International bodies and NGO´s reports supported that conditions of detention centre did not
meet the standards and were unacceptable. Also the CPT, Amnesty International and
Doctors Without Borders etc. reported of these poor conditions and testimony of the asylum
seeker in question was very important.
please note: 2013/33/EU: laying down standards for the reception of applicants for
international protection.
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ECHR: Case of M.S.S v. Belgium and Greece
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V. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION BY BELGIUM FOR
EXPOSING THE APPLICANT TO conditions OF DETENTION AND LIVING CONDITIONS
CONTRARY TO ARTICLE 3
362. The applicant alleged that because of the conditions of detention and existence to
which asylum seekers were subjected in Greece, by returning him to that country in
application of the Dublin Regulation the Belgian authorities had exposed him to treatment
prohibited by Article 3 of the Convention, cited above.
363. The Government disputed that allegation, just as it refused to see a violation of Article
3 because of the applicant’s expulsion and the ensuing risk resulting from the deficiencies in
the asylum procedure.
364. The Court considers that the applicant’s allegations under the above-cited provision of
the Convention raise complex issues of law and fact which cannot be determined without an
examination of the merits; it follows that this part of the application is not manifestly illfounded within the meaning of Article 35 § 3 of the Convention. Nor is it inadmissible on any
other grounds. It must therefore be declared admissible.
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ECHR: Case of M.S.S v. Belgium and Greece
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365. On the merits, the Court reiterates that according to its
well-established case-law the expulsion of an asylum seeker by a Contracting State may
give rise to an issue under Article 3, and hence engage the responsibility of that State under
the Convention, where substantial grounds have been shown for believing that the person
concerned faces a real risk of being subjected to torture or inhuman or degrading treatment
or punishment in the receiving country. In such circumstances, Article 3 implies an obligation
not to expel the individual to that country (see Soering v. the United Kingdom, judgment of
7 July 1989, Series A no. 161, §§ 90-91; Vilvarajah and Others v. the United Kingdom,
judgment of 30 October 1991, Series A no. 125, § 103; H.L.R. v. France, judgment of 29
April 1997, Reports 1997-III, § 34; Jabari cited above, § 38; Salah Sheekh v. the
Netherlands, no. 1948/04, § 135, ECHR 2007-I (extracts), no. 1948/04; and Saadi, cited
above, § 152).
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ECHR: Case of M.S.S v. Belgium and Greece
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366. In the instant case the Court has already found the applicant’s conditions of detention
and living conditions in Greece degrading
(see paragraphs 233, 234, 263 and 264 above). It notes that these facts were well known
before the transfer of the applicant and were freely ascertainable from a wide number of
sources (see paragraphs 162-164 above). It also wishes to emphasize that it cannot be held
against the applicant that he did not inform the Belgian administrative authorities of the
reasons why he did not wish to be transferred to Greece. It has established that the
procedure before the Aliens Office made no provision for such explanations and that the
Belgian authorities applied the Dublin Regulation systematically (see paragraph 352 above).
367. Based on these conclusions and on the obligations incumbent on the States under
Article 3 of the Convention in terms of expulsion, the Court considers that by transferring the
applicant to Greece the Belgian authorities knowingly exposed him to conditions of detention
and living conditions that amounted to degrading treatment.
368. That being so, there has been a violation of Article 3 of the Convention.
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ECHR: Case of Makhmudzhan Ergashev v.
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THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
6. The applicant was born in 1972 and lives in St Petersburg, Russia.
7. The applicant is an ethnic Uzbek. He was born and lived in the town of Osh in the south
of Kyrgyzstan. From 1999 until June 2006 the applicant worked at the South Warehouse of
the State Reserves Fund in Jalal-Abad. The majority of the Kyrgyzstani nationals of Uzbek
origin – around 14% of Kyrgyzstan’s overall population – live in the south of the country, in
particular, in Osh and Jalal-Abad.
8. On 11 July 2006 the applicant arrived in St Petersburg, Russia, in order to accompany his
wife’s father who was having medical treatment in a clinic in St Petersburg. According to the
applicant, he has not returned to Kyrgyzstan since then. He stayed in Russia and worked as
a taxi driver. According to records of the traffic police for St Petersburg and Leningrad
region, he committed minor traffic violations on 16 August, 17 and 22 September and 9
November 2006, as well as in 2007-2010. From 17 October 2006 to 12 January 2007 he
was officially registered as residing at a certain address in St Petersburg. His wife and two
children joined him in 2008. His wife obtained Russian citizenship in March 2011. His other
two children and his parents stayed in Osh.
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ECHR: Case of Makhmudzhan Ergashev v.
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D. Situation in Kyrgyzstan
30. On 7 April 2010 President Bakiyev was overthrown after popular demonstrations and a
Provisional Government headed by Roza Otunbayeva assumed power.
31. On 10 June 2010 and the days which followed inter-ethnic clashes erupted in the south
of the country in Osh and Jalal-Abad, in which ethnic Kyrgyz and ethnic Uzbeks committed
violence against each other.
32. Kyrgyzstan adopted a new Constitution via a 27 June 2010 referendum. According to
the Organization for Security and Co-operation in Europe’s Office for Democratic Institutions
and Human Rights (OSCE/ODIHR) Limited Referendum Observation Mission Report, the
authorities succeeded in creating the necessary conditions for the conduct of a peaceful
constitutional referendum despite challenging circumstances.
33. On 10 October 2010 Kyrgyzstan held parliamentary elections. The OSCE/ODIHR
provided a cautiously optimistic assessment of the elections, despite some shortcomings.
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ECHR: Case of Makhmudzhan Ergashev v.
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34. On 30 October 2011 Kyrgyzstan held presidential elections. According to the
OSCE/ODIHR Election Observation Mission Final Report, “the election was
conducted in a peaceful manner, but shortcomings underscored that the integrity
of the electoral process should be improved to consolidate democratic practice
in line with international commitments. Candidate registration was inclusive,
giving voters a wide choice, and the electoral campaign was open and respected
fundamental freedoms. These elements, however, were overshadowed by
significant irregularities on election day, especially during the counting and
tabulation of votes.” The inauguration of the newly-elected President
Mr Atambayev took place on 1 December 2011
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ECHR: Case of Makhmudzhan Ergashev v.
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Amnesty International
36. In their June 2012 report “Kyrgyzstan: Dereliction of Duty” Amnesty International stated,
in particular, as follows:
“Despite the acknowledgment by a number of officials that torture and other ill-treatment in
detention continues to be a problem and despite repeated efforts, including issuing decrees
and instructions, by the former President and the new Prosecutor General to stop the routine
use of beatings and other ill-treatment in order to extract confessions, there appears to be
little commitment at regional and local levels to effectively and decisively address and
prevent these serious human rights violations. ...
While human rights monitors report fewer arbitrary arrests, nevertheless, two years on from
the June violence, torture and other ill-treatment, including beatings, by law enforcement
officers unfortunately appear to continue to be routine ... There are serious concerns that
while investigating crimes police officers have continued to target Uzbeks and Uzbek
neighbourhoods, threatening to charge them with serious crimes, such as murder, in relation
to the June violence in order to extort money from them.
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ECHR: Case of Makhmudzhan Ergashev v.
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Those who have returned from seasonal work in Russia or Kazakhstan or families who have
relatives working outside the country are particularly vulnerable to arbitrary detention,
intimidation and extortion since they are assumed to have ready access to money and
foreign currency. ...
Impunity for law enforcement officers who have perpetrated torture and other ill-treatment
has long been a serious problem in Kyrgyzstan, especially at the local and regional levels.
Since the June 2010 violence this has become ever more apparent but despite a number of
positive initiatives and concrete measures in 2011 by the former President and the current
Prosecutor General on the prohibition of torture, regrettably only a handful of prosecutions
for torture or other ill-treatment in police custody appear to have taken place. ... Given the
admissions by the Prosecutor General and the current and former Presidents that torture
and other ill-treatment is widespread the extremely low number of prosecutions of security
officers for torture and the absence of any convictions for torture casts doubt on the
commitment of the authorities to seriously and effectively redress these crimes and human
rights violations.”
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ECHR: Case of Makhmudzhan Ergashev v.
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Human Rights Watch
37. In their report ‘Distorted Justice’, published in June 2011, Human Rights Watch noted an
impact which the June 2010 events had had on the problem of torture:
“Lawyers and other observers noted that the problem of torture and ill-treatment worsened
significantly after the June events, and was routine in cases involving ethnic Uzbek suspects
detained on charges unrelated to the June 2010 violence. In an interview about the use of
torture in Kyrgyzstan in 2010, a human rights defender who has researched police torture in
Kyrgyzstan for four years noted:
The June events [exacerbated] the situation regarding torture and completely untied the
hands of the police officers and the security service. We even heard about the use of torture
by the tax police. ... Many are convinced that if torture is used against, for example, Uzbeks,
then that is normal.”
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38. Human Rights Watch World Report 2012: Kyrgyzstan (Events of 2011)
contains the following findings concerning the situation in Kyrgyzstan:
“In 2011 Kyrgyzstan continued to grapple with the consequences of the June
2010 violence that erupted between ethnic Kyrgyz and Uzbeks in the country’s
south, killing more than 400 people. Four commissions of inquiry were
completed and thousands of criminal investigations continued in 2011, with the
justice process skewed to scapegoat ethnic Uzbeks for the violence.
Torture and arbitrary detentions in the context of investigations into the June
2010 violence are rampant and go largely unpunished. Ethnic Uzbeks in the
south are particularly vulnerable to police torture. Violations of international fair
trial standards plagued the administration of justice in the south.
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40. The International Crisis Group states that the police in Kyrgyzstan are currently almost
exclusively ethnically Kyrgyz. “The wave of abusive detentions, extortion and torture directed
at the Uzbek community since soon after June 2010 is widely referred to simply as
‘impunity’. If police abuse and torture are unexceptional, the extent, duration and the clear
target of this campaign has been highly unusual. Most long-time observers feel that senior
southern politicians and officials continue to countenance abuses in order to ensure police
support. With rare exceptions the victims have all been Uzbek, some as young as fourteen.
They range from migrant workers, often thought to have large amounts of cash on their
return from Russia or elsewhere, to businessmen.” “The government acknowledges the
problem of torture and has taken steps to address it, but these have proven almost
completely ineffectual. The prosecutor-general issued three decrees in 2011 aimed at
checking and punishing the use of torture and ill treatment of detainees. There have,
however, been no successful prosecutions. Three memorandums of understanding between
prosecutors and southern human rights organisations have likewise had little effect.”
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UN Special Rapporteur on torture and other cruel, inhuman or degrading treatment or
punishment
41. The UN Special Rapporteur on torture and other cruel, inhuman or degrading treatment
or punishment, Juan E. Méndez, visited Kyrgyzstan from 5 to 13 December 2011 at the
invitation of the Government, which provided him with unrestricted access to detention
facilities. The purpose of the visit was to assess the situation as regards torture and illtreatment in the country, including conditions of detention, and to identify measures needed
to prevent torture and ill-treatment in the future. The report on that mission was presented at
the 19th session of the United Nations Human Rights Council and states, inter alia, as
follows
…. 37. The Special Rapporteur received numerous accounts and eyewitness testimonies
suggesting that torture and ill-treatment had been historically pervasive in the law
enforcement sector. This practice has been intensified by the turbulence of the past two
years with the ousting of President Bakiev in April 2010, followed by the violence that took
place in the South in June 2010. During the violence in June 2010 and its aftermath, reports
consistently highlighted the frequency and gravity of arbitrary detention, torture and illtreatment by law enforcement bodies. etc….
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The Court’s assessment
1. Article 3
(a) Admissibility
63. The Court notes that this complaint is not manifestly ill-founded within the meaning of
Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other
grounds. It must therefore be declared admissible.
(b) Merits
64. It is the settled case-law of the Court that extradition by a Contracting State may give
rise to an issue under Article 3, and hence engage the responsibility of that State under the
Convention, where substantial grounds have been shown for believing that the person in
question would, if extradited, face a real risk of being subjected to treatment contrary to
Article 3 in the receiving country (see Mamatkulov and Askarov v. Turkey [GC], nos.
46827/99 and 46951/99, § 67, ECHR 2005-I, and Soering v. the United Kingdom, 7 July
1989, § 91, Series A no. 161). In such a case, Article 3 implies an obligation not to extradite
the person in question to that country (see Iskandarov v. Russia, no. 17185/05, § 125,
23 September 2010). Article 3 is absolute and it is not possible to weigh the risk of illtreatment against the reasons put forward for the expulsion (see Saadi v. Italy [GC], no.
37201/06, § 138, ECHR 2008).
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65. In determining whether substantial grounds have been shown for believing that a real
risk of treatment contrary to Article 3 exists, the Court will assess the issue in the light of all
the material placed before it or, if necessary, material obtained proprio motu (see Cruz Varas
and Others v. Sweden, 20 March 1991, §§ 75-76, Series A no. 201, and Vilvarajah and
Others v. the United Kingdom, 30 October 1991, § 107, Series A no. 215). If the applicant
has not been extradited when the Court examines the case, the relevant time will be that of
the proceedings before the Court (see Mamatkulov and Askarov, cited above, § 69).
66. In order to determine whether there is a risk of ill-treatment, the Court must examine the
foreseeable consequences of sending the applicant to the receiving country, bearing in mind
the general situation there and his personal circumstances (see Vilvarajah and Others, cited
above, § 108 in fine). It is in principle for the applicant to adduce evidence capable of
proving that there are substantial grounds for believing that, if the measure complained of
were to be implemented, he would be exposed to a real risk of being subjected to treatment
contrary to Article 3 (see N. v. Finland, no. 38885/02, § 167, 26 July 2005). Where such
evidence is adduced, it is for the Government to dispel any doubts about it (see Ryabikin
v. Russia, no. 8320/04, § 112, 19 June 2008).
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67. As regards the general situation in a particular country, the Court considers that it can
attach a certain weight to the information contained in recent reports from independent
international human rights protection organisations or governmental sources (see, for
example, Chahal v. the United Kingdom, 15 November 1996, §§ 99-100, Reports of
Judgments and Decisions 1996-V; Müslim v. Turkey, no. 53566/99, § 67, 26 April 2005;
Said v. the Netherlands, no. 2345/02, § 54, ECHR 2005-VI; and Al-Moayad v. Germany
(dec.), no. 35865/03, §§ 65-66, 20 February 2007).
68. In cases where an applicant alleges that he or she is a member of a group
systematically exposed to ill-treatment, the Court considers that the protection of Article 3 of
the Convention enters into play when the applicant establishes, where necessary on the
basis of the sources mentioned in the previous paragraph, that there are serious reasons to
believe in the existence of the practice in question and his or her membership of the group
concerned (see, mutatis mutandis, Salah Sheekh v. the Netherlands, no. 1948/04, §§ 13849, 11 January 2007, and Saadi, cited above, § 132).
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• 69. In the present case the decision to extradite the applicant
was taken in connection with his prosecution on charges of
embezzlement of State funds, punishable by a lengthy prison
term, in criminal proceedings which are pending against him in
Jalal-Abad in the south of Kyrgyzstan, which was the scene of
the violent inter-ethnic clashes between Kyrgyz and Uzbeks in
June 2010, and where he is apparently, in the absence of any
other arrangements known to the Court, to be extradited. The
applicant’s remand in custody had been ordered by the JalalAbad investigating authority (see paragraphs 9-10 above).
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70. The Court observes that in the domestic proceedings in which the applicant challenged
the decision for his extradition he argued, with reference, inter alia, to the findings of the KIC
and Human Rights Watch, that as an ethnic Uzbek he would face a serious risk of torture if
he were to be extradited (see paragraph 24 above). The St Petersburg City Court’s judgment
of 9 June 2011 contains general statements about the normalisation of the situation in
Kyrgyzstan after the June 2010 inter-ethnic clashes and the absence of any political or
ethnic element to the charges against the applicant, and has no regard to the sources cited
by the applicant, or, indeed, any assessment of the risk of ill-treatment for its finding that the
applicant’s fears were not justified (see paragraph 25 above). In so far as it refers to the
Federal Migration Service’s decisions in the applicant’s case, those decisions, while noting
the June 2010 events and various developments in Kyrgyzstan since then, such as the
constitutional referendum, the parliamentary elections and cooperation with UN bodies,
failed to address the issue of ill-treatment by law-enforcement authorities (see paragraphs
21-23 above).
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• 71. Since the inter-ethnic clashes in June 2010 in Osh and
Jalal-Abad the situation in Kyrgyzstan has indeed significantly
changed. There have been a number of important developments
in Kyrgyzstan, notably the adoption of the new Constitution, the
parliamentary and the presidential elections, the work of the
international and national commissions of inquiry into the June
2010 events, a number of legal reforms with a view to bringing
national legislation into line with international norms in the field
of human rights marked by the Government’s cooperation with
United Nations and other international bodies (see paragraphs
32-35, 41, 43 and 46 above).
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72. At the same time it follows from the evidence before the Court that the situation in the
south of the country is characterised by torture and other ill-treatment of ethnic Uzbeks by
law-enforcement officers, which increased in the aftermath of the June 2010 events and has
remained widespread and rampant, being aggravated by the impunity of law-enforcement
officers. The problem must be viewed against the background of the rise of
ethno-nationalism in the politics of Kyrgyzstan, particularly in the south, the growing interethnic tensions between Kyrgyz and Uzbeks, continued discriminatory practices faced by
Uzbeks at the institutional level and under-representation of Uzbeks in, inter alia, lawenforcement bodies and the judiciary. Despite the acknowledgment of the problem and
measures taken by the country central authority, in particular the Prosecutor General, their
efforts have so far been insufficient to change the situation (see paragraphs 35-46 above).
As the UN Special Rapporteur on torture and other cruel, inhuman or degrading treatment or
punishment noted, he had heard of no “such instructions communicated by the responsible
officials of the Ministry of the Interior to condemn torture and ill-treatment or to declare
unambiguously that torture and ill-treatment by police officers would not be tolerated”, and
that it remains to be seen how the Prosecutor General’s instructions “will be implemented at
the city and provincial levels” (see paragraph 42 above) where, according to Amnesty
International, “there appears to be little commitment ... to effectively and decisively address
and prevent these serious human rights violations” (see paragraph 36 above).
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73. The Court does not overlook the fact that the criminal proceedings against
the applicant concern an offence of an economic nature allegedly committed in
2007 and thus unrelated to the June 2010 violence. However, it appears from
the sources before the Court that, while the said practice of torture and other illtreatment of ethnic Uzbeks is particularly evident in the context of prosecution of
the June 2010 related offences, given their nature and mass character (more
than 5,000 criminal cases opened, see paragraphs 38 and 43 above), it is not
limited to those offences, being described by Human Rights Watch as “routine in
cases involving ethnic Uzbek suspects detained on charges unrelated to the
June 2010 violence” (see paragraph 37 above). Furthermore, those who have
returned from working in Russia are considered particularly vulnerable to
intimidation and extortion by law-enforcement officers (see paragraphs 36 and
40 above).
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74. The Court notes further that in deciding on the applicant’s extradition the
Russian authorities relied, without any scrutiny, on assurances from the Kyrgyz
Republic, the observance of which they found “no reason to doubt” (see
paragraph 25 above). The Court observes that assurances are not in
themselves sufficient to ensure adequate protection against the risk of illtreatment. There is an obligation to examine whether assurances provide, in
their practical application, a sufficient guarantee that the applicant will be
protected against the risk of ill-treatment. The weight to be given to assurances
from the receiving State depends, in each case, on the circumstances prevailing
at the material time (see Saadi, cited above, § 148; and Othman (Abu Qatada)
v. the United Kingdom, no. 8139/09, §§ 187-89, 17 January 2012).
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75. The assurances of the Kyrgyz Republic in the present case are rather specific (see
paragraphs 15 and 17 above). They are given by the Prosecutor General of the Kyrgyz
Republic and concern treatment which is illegal in that State (see paragraphs 41 and 46
above). While they appear to be formally binding on the local authorities, the Court has
serious doubts, in view of the poor human rights record of the south of the country, whether
the local authorities there can be expected to abide by them in practice (see paragraph 72
above). Furthermore, the Court notes that the Government’s reference to the possibility of
monitoring the observance of the assurances through the Special Representative of the
President of the Russian Federation on international cooperation in the fight against
terrorism and transnational organised crime and the Foreign Affairs Ministry of the Russian
Federation is not supported by any evidence except for the general request for assistance
by the deputy Prosecutor General (see paragraph 19 above) with no information about any
follow-up. Although the Court does not doubt the good faith of the Kyrgyz authorities in
providing the assurances mentioned above, it is not, in these circumstances, persuaded that
they would provide the applicant with an adequate guarantee of safety.
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76. For the reasons outlined above, in particular the attested widespread and
routine use of torture and other ill-treatment by law-enforcement bodies in the
southern part of Kyrgyzstan in respect of members of the Uzbek community, to
which the applicant belongs, and impunity of law-enforcement officers, the Court
finds it substantiated that the applicant would face a real risk of treatment
proscribed by Article 3 if returned to Kyrgyzstan.
77. Accordingly, the order for his extradition to Kyrgyzstan would, if executed,
give rise to a violation of Article 3 of the Convention.
FOR THESE REASONS, THE COURT UNANIMOUSLY
1. Declares the application admissible;
2. Holds that, if the decision to extradite the applicant to Kyrgyzstan were to be
enforced, there would be a violation of Article 3 of the Convention;
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Part 2. The Asylum Procedure in a Nutshell
Entry: An application for
international protection is filed
1. The police or the Frontier Guard
establish the identity, travel route
and entry into the country
4. If not: The Immigration Service will
interview the applicant and give the decision;
The decision on an application is done in
accelerated or normal procedure.
Accelerated if: the applicant comes
1. from a safe country of origin or asylum
2. The Dublin Section investigates if the
2. the application is manifestly unfounded
"Dublin II Regulation" is to be applied
3. the applicant has previously filed an
unsuccessful application and applies again
3. If yes: Request for information, and possible
Normal: The Immigration Service
request for taking back or taking charge of the
decides whether the applicant is
applicant to the responsible country. (The asylum
granted with
application is dismissed)
1. an asylum
2. subsidiary protection
3. a res. permit on other grounds
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46
The Asylum Investigation
• An application presented at the Finnish border or on
Finnish territory on the basis of a need for international
protection (asylum application) is processed in the asylum
procedure.
• An application for international protection is submitted to
the police or the border control authorities on arrival in
Finland or shortly after that. An alien cannot apply for
asylum from abroad in writing or by e-mail.
• Each asylum application is dealt with and investigated on
a case-by-case basis.
• An asylum application always includes an application
for a residence permit
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The Asylum Investigation
• The police or Frontier Guard establish the
identity, travel route, and means of entering the
country of a person who has filed an application
for international protection.
• Information about the applicant's family
members and other close relatives is also
gathered.
• Couples will be interviewed separately.
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• Establishing the persecution or other violations in the
home country or country of permanent residence
- past incidents and future threats, whether
the applicant has been or whether (s)he has a
well-founded fear of being persecuted or
whether
(s)he is in need of protection.
- whether the applicant has ties to Finland or
other grounds for granting a residence permit.
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Grounds for granting a residence permit
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Granting Asylum
• Aliens residing in the country are granted asylum if they
reside outside their home country or country of permanent
residence owing to a well founded fear of being persecuted
for reasons of ethnic origin, religion, nationality,
membership in a particular social group or political opinion
and if they, because of this fear, are unwilling to avail
themselves of the protection of that country.
• Note! Poor circumstances (poverty, unemployment, war,
environmental disaster etc.) are not grounds for asylum as
such.
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The Exclusion Clause
• Asylum is not granted to aliens if they have committed, or if
there are reasonable grounds to suspect that they have
committed:
– A crime against peace, war crime or crime against
humanity as defined by international agreements
concerning such crimes
– A serious non-political crime outside Finland before
entering Finland as refugees; or
– An act which violates the aims and principles of the
United Nations
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A Residence Permit on Other Grounds
• Only a minority of asylum seekers fill the criteria of a refugee.
However, approximately a half of the applicants are allowed to stay
in the country and they are granted residence permits on other
grounds, such as:
– On the basis of need of subsidiary protection or on
humanitarian grounds
– On family ties
– On other ties (e.g. studies or employment)
– On compassionate grounds
– On temporary basis, when (s)he cannot be removed from the
country
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Subsidiary protection
• Aliens residing in the country are issued with a residence permit on the
basis of need of subsidiary protection if the requirements for granting
an asylum are not met but they are in their home country or country of
permanent residence under the threat of death penalty or execution,
torture or other inhuman treatment or punishment or treatment or
punishment violating human dignity or a serious personal danger due
to arbitrary violence caused by an international or internal armed
conflict. In addition it is required that they cannot avail themselves of
the protection of their home country or country of permanent residence
or are unwilling to do so because of fear.
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Humanitarian grounds
• Aliens residing in the country are issued with a residence
permit on humanitarian grounds if the requirements for
granting asylum or a residence permit on the basis of need
for subsidiary protection are not met but they cannot return
to their home country or country of permanent residence
because of an environmental disaster or insecurity caused
by an international or internal armed conflict or a difficult
human rights situation.
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Residence Permit on Compassionate Grounds
• Aliens residing in Finland are issued with a continuous residence
permit if refusing a residence permit would be manifestly
unreasonable with regard to their
– health
– ties to Finland
– or on other compassionate grounds
• particularly in consideration of the
– circumstances they would face in their home country or
– of their vulnerable position
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Asylum investigation
• asylum interview is a vital tool to hear applicants story
and grounds for international protection
• a way to find out possible reasons for nonrefoulement
• to reflect with the applicant
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Importance of COI in asylum cases
• UK Home Office: Operational Guidance Note on
Afghanistan June 2013 on medical treatment:
•
•
5. Medical treatment
5.1 Individuals whose asylum claims have been refused and who seek
to remain on the grounds that they require medical treatment which is
either unavailable or difficult to access in their countries of origin, will
not be removed to those countries if this would be inconsistent with our
obligations under the ECHR. Caseworkers should give due
consideration to the individual factors of each case and refer to the
latest available country of origin information concerning the availability
of medical treatment in the country concerned. If the information is not
readily available, an information request should be submitted to the COI
Service (COIS).
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Importance of COI in asylum cases
•
5.2 The threshold set by Article 3 ECHR is a high one. It is not simply a
question of whether the treatment required is unavailable or not easily
accessible in the country of origin. According to the House of Lords‘
judgment in the case of N (FC) v SSHD [2005] UKHL31, it is ―whether
the applicant‘s illness has reached such a critical stage (i.e. he is dying)
that it would be inhuman treatment to deprive him of the care which he
is currently receiving and send him home to an early death unless there
is care available there to enable him to meet that fate with dignity‖. That
judgment was upheld in May 2008 by the European Court of Human
Rights….
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Importance of COI in asylum cases
•
•
3.12.9 Conclusion. Since the fall of the Taliban the position of women
in Afghanistan has improved, but from a very low baseline and the
sustainability of the improvements remains uncertain in the longer term.
Sexual and gender-based violence against women is endemic.
3.12.10 Women cannot currently rely on protection from the Afghan
authorities and it would be unreasonable to expect lone women and
female heads of households to relocate internally. Women with a male
support network may be able to relocate internally. Caselaw has
established that women in Afghanistan are a particular social group in
terms of the Refugee Convention; therefore a grant of asylum will be
appropriate to applicants in this category who are able to demonstrate a
well-founded fear of persecution for reason of their gender
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Part 3. Legal definitions: vulnerable person
• ‘2013/33/EU reception directive:
• applicant with special reception needs’: means a
vulnerable person, in accordance with Article 21, who
is in need of special guarantees in order to benefit
from the rights and comply with the obligations
provided for in this Directive.
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2013/33/EU reception directive:
•
•
•
•
PROVISIONS FOR VULNERABLE PERSONS
Article 21
General principle
Member States shall take into account the specific situation of
vulnerable persons such as minors, unaccompanied minors,
disabled people, elderly people, pregnant women, single parents
with minor children, victims of human trafficking, persons with
serious illnesses, persons with mental disorders and persons
who have been subjected to torture, rape or other serious forms
of psychological, physical or sexual violence, such as victims of
female genital mutilation, in the national law implementing this
Directive.
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2013/33/EU reception directive:
•
•
•
•
Article 22
Assessment of the special reception needs of vulnerable persons
1. In order to effectively implement Article 21, Member States shall
assess whether the applicant is an applicant with special reception
needs. Member States shall also indicate the nature of such needs.
That assessment shall be initiated within a reasonable period of time
after an application for international protection is made and may be
integrated into existing national procedures. Member States shall
ensure that those special reception needs are also addressed, in
accordance with the provisions of this Directive, if they become
apparent at a later stage in the asylum procedure.
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2013/33/EU reception directive:
• Member States shall ensure that the support provided
to applicants with special reception needs in
accordance with this Directive takes into account their
special reception needs throughout the duration of
the asylum procedure and shall provide for
appropriate monitoring of their situation.
• 2. The assessment referred to in paragraph 1 need
not take the form of an administrative procedure.
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2013/33/EU reception directive:
• 3. Only vulnerable persons in accordance with Article
21 may be considered to have special reception
needs and thus benefit from the specific support
provided in accordance with this Directive.
• 4. The assessment provided for in paragraph 1 shall
be without prejudice to the assessment of
international protection needs pursuant to Directive
2011/95/EU.
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2011/36/EU directive on preventing and combating
trafficking in human beings and protecting its victims
•
•
•
•
•
Article 2
Offences concerning trafficking in human beings
1. Member States shall take the necessary measures to ensure that the
following intentional acts are punishable:
The recruitment, transportation, transfer, harbouring or reception of persons,
including the exchange or transfer of control over those persons, by means of
the threat or use of force or other forms of coercion, of abduction, of fraud, of
deception, of the abuse of power or of a position of vulnerability or of the giving
or receiving of payments or benefits to achieve the consent of a person having
control over another person, for the purpose of exploitation.
2. A position of vulnerability means a situation in which the person
concerned has no real or acceptable alternative but to submit to the abuse
involved.
V A S T A A N O T T O K E S K U S
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Council of Europe Convention on Action against
Trafficking in Human Beings
•
•
•
Chapter III – Measures to protect and promote the rights of victims, guaranteeing
gender equality
Article 10 ‐ Identification of the victims
1 Each Party shall provide its competent authorities with persons who are trained and
qualified in preventing and combating trafficking in human beings, in identifying andhelping
victims, including children, and shall ensure that the different authorities collaborate with
each other as well as with relevant support organisations, so that victims can be identified in
a procedure duly taking into account the special situation of women and child victims and, in
appropriate cases, issued with residence permits under the conditions provided for in Article
14 of the present Convention.
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Council of Europe Convention on Action against
Trafficking in Human Beings
• 2. Each Party shall adopt such legislative or other measures as
may be necessary to identify victims as appropriate in
collaboration with other Parties and relevant support
organisations. Each Party shall ensure that, if the competent
authorities have reasonable grounds to believe that a person
has been victim of trafficking in human beings, that person shall
not be removed from its territory until the identification process
as victim of an offence provided for in Article 18 of this
Convention has been completed by the competent authorities
and shall likewise ensure that that person receives the
assistance provided for in Article 12, paragraphs 1 and 2.
V A S T A A N O T T O K E S K U S
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Council of Europe Convention on Action against
Trafficking in Human Beings
• 3. When the age of the victim is uncertain and there are reasons
to believe that the victim is a child, he or she shall be presumed
to be a child and shall be accorded special protection measures
pending verification of his/her age.
• 4. As soon as an unaccompanied child is identified as a victim,
each Party shall: a provide for representation of the child by a
legal guardian, organisation or authority which shall act in the
best interests of that child; b take the necessary steps to
establish his/her identity and nationality; c make every effort to
locate his/her family when this is in the best interests of the
child.
V A S T A A N O T T O K E S K U S
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Council of Europe Convention on Action against
Trafficking in Human Beings: Explanatory Report
–
131. Even though the identification process is not completed, as soon as competent
authorities consider that there are reasonable grounds to believe that the person is a
victim, they will not remove the person from the territory of the receiving states.
Identifying a trafficking victim is a process which takes time. It may require exchange of
information with other countries or Parties or with victim-support organisations, and this
may well lengthen the identification process. Many victims, however, are illegally
present in the country where they are being exploited. Paragraph 2 seeks to avoid their
being immediately removed from the country before they can be identified as victims.
Chapter III of the Convention secures various rights to people who are victims of
trafficking in human beings. Those rights would be purely theoretical and illusory if such
people were removed from the country before identification as victims was possible.
–
132. The Convention does not require absolute certainty – by definition impossible
before the identification process has been completed – for not removing the person
concerned from the Party’s territory. Under the Convention, if there are “reasonable”
grounds for believing someone to be a victim, then that is sufficient reason not to
remove them until completion of the identification process establishes conclusively
whether or not they are victims of trafficking.
–
133. The words “removed from its territory” refer both to removal to the country of origin
and removal to a third country.
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2008/115/EC Return Directive
• ‘vulnerable persons’ means minors, unaccompanied
minors,
• disabled people, elderly people, pregnant women,
single
• parents with minor children and persons who have
been
• subjected to torture, rape or other serious forms of
psychological,
• physical or sexual violence.
V A S T A A N O T T O K E S K U S
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The EU Return Directive
• The Return Directive states that clear, transparent and fair rules
need to be fixed to provide for on effective return policy as a
necessary element of a well-managed migration policy. Coercive
measures and the limits to their use are defined in Articles 8.4
and 8.5. Detention is justified only to prepare the return and/or
carry out the removal process (Article 15).
• The removal process is addressed in Chapter II of the Directive,
where it also referred to as " termination of illegal stay ". MS are
obligated to issue a return decision to all third-country nationals
staying illegally on their territory. In this connection as laid down
in the European Convention on Human Rights.
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The EU Return Directive
• Article 8.4 stipulates that removal may be enforced,
but such measures must be carried out in accordance
with fundamental rights and with due respect for the
dignity and integrity of the returnee.
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Part 4. Return of vulnerable persons (mental
health)
• Psychological impact on persons returning
• Content:
– General overview to mental health
– Vulnerable persons
– Mental health of asylum seeker
• Prevalence
• Special features
– Specific questions
– Good practices
V A S T A A N O T T O K E S K U S
Olli Snellman
•
F Ö R L Ä G G N I N G
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R E C E P T I O N
C E N T R E
Mental health
•
•
•
•
There is no health without mental health.
Mental health is more than the absence of mental illness.
• In this positive sense mental health is the foundation for well-being and
effective functioning for an individual.
• Core concept of mental heath is consistent with its wide and varied
interpretation across cultures.
• Furthermore, health and illness may co-exist (nobody is perfectly ill or
well).
Mental health and mental illnesses are determined by multiple and interacting
social, psychological, and biological factors, just as health and illness in general.
The greater vulnerability of disadvantaged people to mental illnesses may be
explained by such factors as the experience of insecurity and hopelessness,
rapid social change, and the risks of violence and physical ill-health (Patel &
Kleinman 2003).
V A S T A A N O T T O K E S K U S
Olli Snellman
•
F Ö R L Ä G G N I N G
•
R E C E P T I O N
C E N T R E
General overview to mental health
•
•
•
•
Mental and behavioural disorders are not exclusive to any special
group
• they are found in people of all regions, all countries and all
societies.
• About 450 million people suffer from mental disorders
according to estimates given in WHO’s World Health Report
2001.
Mental health problems and disorders have multiple determinants.
Biological, psychological, social and societal risk and protective
factors and their interactions have been identified across the lifespan
from as early as fetal life.
Mental health problems and disorders are interrelated with physical
illnesses and social problems.
V A S T A A N O T T O K E S K U S
Olli Snellman
•
F Ö R L Ä G G N I N G
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R E C E P T I O N
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The concept of risk and protective factors
•
•
•
•
There is complexity of the mechanism involved to mental health.
• Range of factors interplay (both risk and protective factors)
• There is strong evidence on risk and protective factors and their
links to the development of mental health problems and
disorders.
Risk factors are associated with an increased probability of onset,
greater severity and longer duration of major health problems.
Protective factors refer to conditions that improve people’s resistance
to risk factors and disorders.
They have been defined as those factors that modify, ameliorate or alter
a person’s response to some environmental hazard that predisposes to
a maladaptive outcome (Rutter, 1985).
V A S T A A N O T T O K E S K U S
Olli Snellman
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F Ö R L Ä G G N I N G
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R E C E P T I O N
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Risk and protective factors in practice
•
•
•
Both risk and protective factors can be individual, family-related, social,
economic and environmental in nature.
Mostly it is the cumulative effect of the presence of multiple risk
factors, the lack of protective factors and the interplay of risk and
protective situations that predisposes individuals to move from a
mentally healthy condition to increased vulnerability, then to a mental
problem and finally to a full-blown disorder.
For example; individual protective factors are identical to features of
positive mental health, such as self-esteem, emotional resilience,
positive thinking, problem-solving and social skills, stress
management skills and feelings of mastery.
V A S T A A N O T T O K E S K U S
Olli Snellman
•
F Ö R L Ä G G N I N G
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R E C E P T I O N
C E N T R E
Vulnerable persons (CEAS/ RCD 17)
•
•
•
By this definition, vulnerable person and groups are:
• minors, unaccompanied minors, disabled people, elderly
people, pregnant women, single parents with minor children
and persons who have been subjected to torture, rape or other
serious forms of psychological, physical or sexual violence.
Definition (vulnerable persons) apply only to persons found to have
special needs after an individual evaluation of their situation.
From mental health perspective, non of these "conditions" do not
causally and necessary mean that these persons have mental health
problems or will automatically develop one.
• Important to knowledge heightened risk.
• Important to make solid individual evaluation.
V A S T A A N O T T O K E S K U S
Olli Snellman
•
F Ö R L Ä G G N I N G
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R E C E P T I O N
C E N T R E
Mental health of asylum seekers
•
•
•
•
Expanding volume of research across different countries and situations
has led to fairly consistent finding of an increased prevalence among
asylum seeker groups of all ages of, predominantly;
• post- traumatic stress disorder (PTSD)
• depression
• anxiety.
But there is hugely differing estimates of the prevalence of common
mental disorders in and between various studies and asylum seeker
groups.
Estimation is that app. 10-25 % of all asylum seekers will develop
actual mental disorder (Snellman et all. 2014, unpublished).
It`s important not to exxaggerate or underestimate mental health
problems of asylum seekers (Turner et all. 2003).
V A S T A A N O T T O K E S K U S
Olli Snellman
•
F Ö R L Ä G G N I N G
•
R E C E P T I O N
C E N T R E
Asylum seekers
• Among asylum seekers there are also many differences in terms
of culture, ethnicity, religion, trauma exposure, family
composition, and resettlement experiences and status.
• Such diverse characteristics, large variation and needs,
therefore, necessitate the acknowledgement of individuality in
asylum seekers and heterogeneity of asylum seeker
populations.
• Various levels and factors of vulnerability (and resilience).
V A S T A A N O T T O K E S K U S
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Range of factors interplay
•
•
•
•
Interpretations of causes of possible mental health problems can be
oversimplified, ranging from being unaware of the impact of trauma to
overattributing all mental health presentations to past experiences
(Vostanis 2014).
As in mental health in general, also in asylum seekers, range of factors
interplay.
Risk factors:
• War conflict, torture, family loss, different types of violence,
abuse, sexual exploitation, long asylum procedure.
Protective factors:
• Safety, social support, services, integration with new society,
faith and religion, coping strategies.
• Protective factors moderate and lowers vulnerabilities.
V A S T A A N O T T O K E S K U S
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F Ö R L Ä G G N I N G
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Pre – migration and post- migration
• Findings from the studies have confirmed that the mental
health of asylum seeker is likely to determined as much by
the circumstances after migration as by traumatic
experiences preceeding it.
• Pre- migration:
• Torture, war, violence etc.
• Post- migration:
• Long asylum processing time, living in the reception
centre, uncertainty, unable to work, detention etc.
• Stressors in the current evinronment may be more
immediately relevant to the individual.
V A S T A A N O T T O K E S K U S
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F Ö R L Ä G G N I N G
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Return of vulnerable persons and psychological
impact of that
•
•
•
•
•
Allthough there are expanding volume of research, there is no research done in
the topic: return of vulnerable persons and psychological impact of that.
From a return perspective, one important aspect might be detention of
returnees.
In general, recent review of studies on the effects of detention on mental health
reported that detention is deleterious to mental health (Robjant et all. 2009).
The extent of mental health ill health seems to correlate with the lenght of time
spent in detention (Herrman et all. 2010).
• Studies do not tell anything about detention facilities and staff, which
makes it hard to make any comparisons.
It seem that in general, detention should be kept as short term as possible.
V A S T A A N O T T O K E S K U S
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F Ö R L Ä G G N I N G
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Psychological impact on persons returning
•
•
•
•
Returnee might feel
• Fear
• Helplesness
• Sense of unsecurity
• Loose of any kind of mastery concerning his/her life
• Uncertanty of his/ her future
These are all reversely human basic needs and important for mental well- being
of any person.
It is important to be respectful towards returnees and returnees emotions.
It is also important to acknowledge the variation between different persons
• People may reflect and show these emotions various ways.
V A S T A A N O T T O K E S K U S
Olli Snellman
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F Ö R L Ä G G N I N G
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R E C E P T I O N
C E N T R E
Detention and deportation (mean figures)
•
•
•
Time (days) spent in Detention Unit before deportation 2009 - 2013.
2014 (1.1 – 30.4.2014) mean time spent (all) in Detention Unit is 19,7
days.
Minority of asylum seekers go to Detention Unit before deportation.
V A S T A A N O T T O K E S K U S
Olli Snellman
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F Ö R L Ä G G N I N G
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R E C E P T I O N
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Idea of good practices from mental health
perspective
•
•
•
•
•
Good and human rights –based reception services for all asylum seekers and
vulnerable persons, while asylum application processed.
If there is need to keep person in detention before returning, it should be as
short term as possible.
• If possible, vulnerable persons exempted from detention.
An essential factor in removal process is the preparation of the individual for
return to his or her country of origin.
• providing information and preparing person for return.
• provision of accurate country information on return conditions.
Individual evaluation of returnees situation and accommodation of their special
needs as good as possible.
Removals in accordance with prevailing human rights norms and try to avoid any
acts that infringe the dignity of the returnee.
V A S T A A N O T T O K E S K U S
Olli Snellman
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F Ö R L Ä G G N I N G
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R E C E P T I O N
C E N T R E
Part 5. Forced Returns
•
•
•
•
•
Most remember that the most dignified and human way of removing
migrants is through voluntary returns.
Voluntary return is also cost-effecitive mechanism to remove migrants.
It can be also a safer option for returnee to travel to home country.
If the voluntary return is not an option, the forced return procedure sets
in.
Forced return is organized by competent authority of the host country or
by joint operation as provided for in Council Decision 2004/573/EC.
V A S T A A N O T T O K E S K U S
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Observations regarding forced returns
•
•
•
•
•
•
Forced returns should be coordinated with all relevant parties like
reception centres, detention unit, police and returnee if possible.
Our experience is that returnee should be informed about date and time
of expulsion if possible.
Especially situations of families may be very problematic.
" Removal " interview by the police is a vital tool to determine the
procedure that best fits the purpose. -> option of assisted voluntary
return.
Return should take place soon as possible.
Detention should be used as a last method.
V A S T A A N O T T O K E S K U S
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Council of Europe: Parliamentary Assembly. Monitoring the return of
irregular migrants and failed asylum seekers by land, sea and air.
Commitee on Migration, Refugees and Displaced persons.
•
•
•
•
Summary
Following a steady increase in the number of forced returns of irregular migrants
and failed asylum seekers, and in view of the risk of ill-treatment during these
forced returns, there is an urgent need to draw up common standards on
removal procedures by land, sea and air and on monitoring these procedures.
These standards would, inter alia, cover the procedures to be followed in order
to prepare people for removal,the information to be given to them, expert
medical opinions and appropriate training for escorting staff, with particular
attention being given to pregnant women and vulnerable people.
Finally, member States should co-operate with Frontex and set up a coordinated and effective system formonitoring forced return programmes.
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standards
•
•
•
•
•
•
94. The content of common standards (for single and joint enforced returns)
could cover:
– standardisation of risk levels related to forced return operations and the
corresponding security measures, such as the direct use of force;
– voluntary returns should always be preferred over forced returns and the same
standards should apply regardless of how a person is returned;
– acceptable/unacceptable restraint techniques, including use of chemical
restraints and accompanying safeguards;
– acceptable behaviour of escorts, independent monitors and other relevant
stakeholders;
– the type of escort equipment allowed on board;
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standards
•
•
•
•
– common training curricula for the different stakeholders: escorts,
accompanying clinicians, airline staff/captain, border guards, etc, and between
the operational and monitoring teams;
– adequate preparation of deportees prior to removal, for example: use of
interpreters to explain the situation; use of cultural mediators; notification of
families; adequate detainee notification: no “surprise
tactics” used;
– appropriate and adequate selection of escort staff: transparent and open
selection procedures; mixed gender, multi-disciplinary teams; interculturally
aware escorts with language skills or accompanying interpreters; adequate and
clear discipline procedures for violations by stakeholders, etc.;
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standards
•
•
•
•
•
– medical expertise: systematic independent medical “fit-to-fly” examinations on
an individual case basis before removal; medics to accompany deportees;
medical examinations after any failed removals as a matter of course; medical
records on all health aspects concerning the deportation; adequate medical
equipment in all transport and holding areas used during the removal; subject to
medical monitoring/oversight;
– clear policies for failed removals: systematic debriefing of staff and detainees,
written records, medical
examination, etc;
– specific guidelines for removals of children and vulnerable groups, in particular
pregnant women and
people suffering from serious illnesses.
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European Committee for the Prevention of Torture and Inhuman or
Degrading Treatment or Punishment (CPT)
• CPT Standards: Deportation of foreign nationals
by air Extract from the 13th General Report [CPT/Inf
(2003) 35]
• As from the beginning of its activities, the CPT has examined the
conditions of detention of persons deprived of their liberty under
aliens legislation, and this issue was dealt with in a section of
the CPT’s 7th General Report (CPT/Inf (97) 10, paragraphs 24
to 36). The CPT set out in that report some basic rules
concerning the use of force and means of restraint in the context
of procedures for the deportation of immigration detainees.
V A S T A A N O T T O K E S K U S
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F Ö R L Ä G G N I N G
7.10.2015
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CPT Standards: Deportation of foreign nationals by air Extract
from the 13th General Report [CPT/Inf (2003) 35]
•
The CPT’s visits since that report have enabled it to flesh out its knowledge of
practices concerning the deportation of foreign nationals by air. During its visits,
the CPT has concentrated on procedures involving forcible departure with an
escort1, and on a number of cases brought to its attention, in particular because
of the death of the deported person, the extent of the means of restraint used
and/or allegations of ill-treatment. The CPT did not confine its examination to the
procedure followed when the person concerned boarded the plane and during
the flight; it also monitored many other aspects, such as detention prior to
deportation, steps taken to prepare for the immigration detainee’s return to the
country of destination, measures to ensure suitable selection and training of
escort staff, internal and external systems for monitoring the conduct of staff
responsible for deportation escorts, measures taken following an abortive
deportation attempt, etc
V A S T A A N O T T O K E S K U S
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CPT Standards: Deportation of foreign nationals by air Extract from the
13th General Report [CPT/Inf (2003) 35]
•
In order to be able to make a detailed study of the procedures and
means used during deportation operations, the CPT obtained copies of
the relevant instructions and directives. It also obtained copies of many
other documents (statistics on deportation operations, escort
assignment orders, escort assignment reports, incident reports, reports
in the context of legal proceedings, medical certificates, etc.) and
examined the restraint equipment used during deportation operations. It
also had detailed interviews in various countries with those in charge of
units responsible for deportation operations and with prospective
deportees met on the spot, some of whom had been brought back to
holding facilities after an abortive deportation attempt
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CPT Standards: Deportation of foreign nationals by air Extract from the
13th General Report [CPT/Inf (2003) 35]
• After its visits, the CPT drew up a number of
guidelines, which it recommended the countries
concerned to follow. In order to promote widespread
application of these guidelines in all the States
Parties to the Convention, the Committee has
decided to group together the most important
principles and comment on them below.
V A S T A A N O T T O K E S K U S
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CPT Standards: Deportation of foreign nationals by air Extract from the
13th General Report [CPT/Inf (2003) 35]
• At the outset it should be recalled that it is entirely
unacceptable for persons subject to a deportation order to
be physically assaulted as a form of persuasion to board a
means of transport or as a punishment for not having done
so.
• The CPT acknowledges that such staff are, on occasion, obliged
to use force and means of restraint in order to effectively carry
out the deportation; however, the force and the means of
restraint used should be no more than is reasonably
necessary.
V A S T A A N O T T O K E S K U S
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F Ö R L Ä G G N I N G
7.10.2015
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97
CPT Standards: Deportation of foreign nationals by air Extract from the
13th General Report [CPT/Inf (2003) 35]
• The CPT has made it clear that the use of force and/or means
of restraint capable of causing positional asphyxia should
be avoided whenever possible and that any such use in
exceptional circumstances must be the subject of
guidelines designed to reduce to a minimum the risks to the
health of the person concerned.
• In addition to the avoidance of the risks of positional asphyxia
referred to above, the CPT has systematically recommended an
absolute ban on the use of means likely to obstruct the
airways (nose and/or mouth) partially or wholly.
V A S T A A N O T T O K E S K U S
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F Ö R L Ä G G N I N G
7.10.2015
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98
CPT Standards: Deportation of foreign nationals by air Extract from the
13th General Report [CPT/Inf (2003) 35]
• It notes that this practice is now expressly prohibited in many
States Parties and invites States which have not already
done so to introduce binding provisions in this respect
without further delay.
• It is essential that, in the event of a flight emergency while the
plane is airborne, the rescue of the person being deported is not
impeded. Consequently, it must be possible to remove
immediately any means restricting the freedom of
movement of the deportee, upon an order from the crew.
• In the CPT’s opinion, security considerations can never
serve to justify escort staff wearing masks during
deportation operations.
V A S T A A N O T T O K E S K U S
•
F Ö R L Ä G G N I N G
7.10.2015
•
R E C E P T I O N
C E N T R E
99
CPT Standards: Deportation of foreign nationals by air Extract from the
13th General Report [CPT/Inf (2003) 35]
• The CPT also has very serious reservations about the use
of incapacitating or irritant gases to bring recalcitrant
detainees under control in order to remove them from their
cells and transfer them to the aircraft.
• Certain incidents that have occurred during deportation
operations have highlighted the importance of allowing
immigration detainees to undergo a medical examination
before the decision to deport them is implemented.
• Similarly, all persons who have been the subject of an
abortive deportation operation must undergo a medical
examination as soon as they are returned to detention
V A S T A A N O T T O K E S K U S
•
F Ö R L Ä G G N I N G
7.10.2015
•
R E C E P T I O N
C E N T R E
100
CPT Standards: Deportation of foreign nationals by air Extract from the
13th General Report [CPT/Inf (2003) 35]
• The CPT considers that the administration of medication to
persons subject to a deportation order must always be
carried out on the basis of a medical decision taken in
respect of each particular case. Save for clearly and strictly
defined exceptional circumstances, medication should only
be administered with the informed consent of the person
concerned.
• Operations involving the deportation of immigration
detainees must be preceded by measures to help the
persons concerned organise their return, particularly on the
family, work and psychological fronts.
V A S T A A N O T T O K E S K U S
•
F Ö R L Ä G G N I N G
7.10.2015
•
R E C E P T I O N
C E N T R E
101
CPT Standards: Deportation of foreign nationals by air Extract from the
13th General Report [CPT/Inf (2003) 35]
• Clearly, escort staff must be selected with the utmost care
and receive appropriate, specific training designed to
reduce the risk of ill-treatment to a minimum.
• The importance of establishing internal and external
monitoring systems in an area as sensitive as deportation
operations by air cannot be overemphasised.
• Deportation operations must be carefully documented.
• Other means, for instance audiovisual, may also be
envisaged, and are used in some of the countries visited, in
particular for deportations expected to be problematic.
V A S T A A N O T T O K E S K U S
•
F Ö R L Ä G G N I N G
7.10.2015
•
R E C E P T I O N
C E N T R E
102
CPT Standards: Deportation of foreign nationals by air Extract from the
13th General Report [CPT/Inf (2003) 35]
• It is also beneficial if each deportation operation where
difficulties are foreseeable is monitored by a manager from
the competent unit, able to interrupt the operation at any
time.
• Further, the CPT wishes to stress the role to be played by
external supervisory (including judicial) authorities,
whether national or international, in the prevention of illtreatment during deportation operations
V A S T A A N O T T O K E S K U S
•
F Ö R L Ä G G N I N G
7.10.2015
•
R E C E P T I O N
C E N T R E
103
KIITOS!
V A S T A A N O T T O K E S K U S
•
F Ö R L Ä G G N I N G
7.10.2015
•
R E C E P T I O N
C E N T R E
104
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