Sow v. Belgium (no. 27081/13) [Articles 3 & 13 ECHR, 19 January 2016

Date: 
Tuesday, January 19, 2016

The case of Sow v. Belgium relates to a national of Guinea who claimed asylum in Belgium as she had partially undergone FGM and claimed to be at risk of re-excision upon return. Her asylum claim was rejected by the Commissioner General for Refugees and Stateless Persons (CGRA) due to inconsistencies, a lack of credibility, and the failure to demonstrate a risk of being re-excised. The Council of Aliens’ Law Litigation (CALL) upheld this decision. A second asylum claim with new documents was also rejected by CGRA and CALL, and the applicant received an order to leave the territory. She lodged a third asylum application, which the CGRA refused to consider as no new elements had been submitted. Her request for suspension of the expulsion order under the procedure for extreme urgency was rejected. However the ECtHR granted an interim measure preventing her deportation.

The applicant alleged that she was at risk of harm contrary to Article 3 ECHR upon return to Guinea; and that she had no effective remedy to challenge her removal contrary to Article 13, due to the non-consideration of her third asylum claim arguing that article 3 required an ex nunc examination.

The Court dismissed the objections raised by the Belgian government as to the admissibility of the challenge on grounds of non-exhaustion of domestic remedies, as these did not have suspensive effect or were otherwise inadequate. It noted that the CGRA had subjected the first asylum application to a detailed and thorough examination. Its conclusion that the applicant was not at risk of re-excision upon return to Guinea was partially based on a report showing that this risk covered certain categories of persons to which the applicant did not belong. The ECtHR found nothing in this assessment arbitrary or manifestly unreasonable. It was immaterial that CALL had acknowledged a risk of re-excision for young women in Guinea in other cases, based on the particular individual circumstances. As such there would be no violation of Article 3 to deport the applicant to Guinea.

Turning to Article 13, the Court considered that it was legitimate for States to provide specific rules to reduce repetitive and abusive, or manifestly unfounded asylum applications. National authorities could not be required to make ex nunc examinations of each new asylum application where the alleged risk had already been subject to a rigorous and careful examination in a previous asylum claim, unless new facts were presented. In this case, the risk to the applicant of re-excision was examined in the first asylum decision, and the new documents (medical reports) submitted were probative of a fact that was not in dispute that had already been considered. The Court therefore found no violation of Article 13 ECHR.

Interim measures remain in place until the judgment becomes final.

Based on an unofficial ELENA translation. 


 

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Keywords: 
Effective remedy (right to)
Female genital mutilation
Inhuman or degrading treatment or punishment
Subsequent application