(Application no. 33809/08)
15 May 2012
This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision.
In the case of Labsi v. Slovakia,
The European Court of Human Rights (Third Section), sitting as a Chamber composed of:
Kristina Pardalos, judges,
and Santiago Quesada, Section Registrar,
Having deliberated in private on 17 April 2012,
Delivers the following judgment, which was adopted on that date:
2. The applicant was initially represented by Ms M. Kolíková, a lawyer practising in Bratislava. As from 9 July 2010 Mr M. Hrbáň, a lawyer practising in Bratislava, took over defending the applicant’s rights before the Court in agreement with Ms M. Kolíková (for further details see paragraphs 62-67 below). The Government of the Slovak Republic (“the Government”) were represented by their Agent, Ms M. Pirošíková.
3. The applicant alleged that his expulsion to Algeria amounted to a breach of Articles 3, 13 and 34 of the Convention.
I. THE CIRCUMSTANCES OF THE CASE
A. Background information
B. The applicant’s family ties in Slovakia
C. Proceedings in Slovakia
1. Asylum requests of the applicant
2. Other proceedings and facts relating to the applicant’s stay in Slovakia and his expulsion
D. Information obtained by the respondent Government from the Algerian authorities
II. PROCEEDINGS BEFORE THE COURT
A. Interim measures under Rule 39 of the Rules of Court
“The Rule 39 measure remains in force until the Constitutional Court has pronounced on the applicant’s constitutional complaint.
It is clear that the applicant needs the reasons given by the Supreme Court for refusing his asylum case to enable him to lodge a complaint under Article 127 of the Constitution with the Constitutional Court.
The two-week period referred to in the Registry’s letter of 13 August 2008 runs from the date on which the final decision is given with reasons and is intended to allow the Court, in the light of the reasons given by the Constitutional Court, to decide whether to lift or continue to apply Rule 39.”
“The President of the Court ... has instructed me to express on his behalf his profound regret at the decision taken by your authorities to extradite Mr Mustapha Labsi to Algeria in disrespect of the Court’s interim measure adopted under Rule 39 of the Rules of Court.
The President has noted in this connection that on 16 April 2010 your authorities were reminded in clear terms by the Registrar of Section IV of the Court that the Rule 39 measure, first applied on 13 August 2008, continued to remain in force. Nevertheless, the Government extradited the applicant to Algeria on 19 April.
The President is deeply disturbed at this development and is particularly concerned about its implications for the authority of the Court and the unfortunate message which it sends both to other Contracting States faced with a Rule 39 measure and to applicants and potential applicants liable to extradition or expulsion to countries where they may be exposed to the risk of violation of their rights under Articles 2 and 3 of the Convention. As an indication of the seriousness with which he views this turn of events, the President has asked that the Chairman of the Committee of Ministers, the President of the Parliamentary Assembly and the Secretary General of the Council of Europe be informed immediately.
The President also notes that notwithstanding the Court’s request of 22 April 2010 for clarification of the circumstances surrounding Mr Labsi’s extradition, your letter of 26 April failed to explain why the Rule 39 measure was not complied with. The President expects your authorities to provide an explanation. He would in particular request your authorities to confirm or deny reports that the spokesperson of the Ministry of the Interior declared that his authorities were prepared to run the risk of being found to be in breach of the Convention and that other States which had failed to comply with a Rule 39 measure only had to pay ‘a few thousand euros’”.
B. The representation of the applicant before the Court
63. On 30 July 2010 Mr M. Hrbáň confirmed that, upon agreement with Ms Kolíková, he undertook to protect the applicant’s rights and to submit a power of attorney from the applicant as soon as he could obtain one.
III. RELEVANT DOMESTIC LAW
A. The Asylum Act 2002
B. The Bar Act 2003
C. The Constitutional Court Act 1993
IV. RELEVANT INTERNATIONAL DOCUMENTS
A. Council of Europe bodies
B. The United Nations system
1. The Human Rights Committee
“11. While noting the assurances given by the State party’s delegation on the periodic and unannounced inspections that the authorities and the International Committee of the Red Cross conduct in prisons, the Committee is concerned about the numerous reports from non-governmental sources pointing to the existence of secret detention centres located, allegedly, at Houch Chnou, Oued Namous, Reggane, El Harrach and Ouargla, among others, where persons deprived of their liberty are allegedly being held. (...)
15. The Committee takes note with concern of the information regarding cases of torture and cruel, inhuman or degrading treatment in the State party, for which the Intelligence and Security Department reportedly has responsibility. (...)
19. The Committee is concerned that confessions obtained under torture are not explicitly prohibited and excluded as evidence under the State party’s legislation.”
2. Committee against Torture
“6. The Committee takes note of the State party’s assurances that Intelligence and Security Department officers are placed under the control of the Public Prosecutor’s Office, and that secure detention centres no longer exist as of November 1996. The Committee nevertheless remains concerned about reports of the existence of secret detention centres run by the Department in its military barracks in Antar, in the Hydra district of Algiers, which are outside the control of the courts. The Committee is also concerned about the lack of information showing that the competent judicial authority has taken steps to look into these allegations. (...)
10. While taking note of the information provided by the delegation of the State party concerning its efforts to provide human rights training for law enforcement personnel, the Committee nevertheless remains concerned at the many serious allegations which it has received of cases of torture and abuse inflicted on detainees by law enforcement officers, including officers of the Intelligence and Security Department. (...)
18. While noting the Algerian delegation’s assurances that confessions are used only for information purposes in legal proceedings, in accordance with article 215 of the Code of Criminal Procedure, the Committee remains concerned about the lack of a provision in the State party’s legislation clearly specifying that any statement that is proved to have been obtained as a result of torture may not be cited as evidence in any proceedings, in accordance with article 15 of the Convention. In addition, the Committee is concerned that article 213 of the Code of Criminal Procedure specifies that, ‘as with any evidence, the evaluation of confessions is a matter for the judge’, as well as information received that confessions obtained as a result of torture have been admitted in legal proceedings.”
3. Working Group on the Universal Periodic Review
4. Special Rapporteurs
C. Amnesty International
“Anyone in Algeria suspected of involvement in terrorist activities, or who is believed to possess information about terrorist activities, whether in Algeria or abroad, faces a real risk of secret detention and torture. Amnesty International has received dozens of reports of detainees treated in this way, among them people who had returned to Algeria from overseas, either voluntarily or at the hands of foreign governments.
Under Article 51 of the Algerian Criminal Procedures Code, detainees suspected of “terrorist or subversive acts” may be held without charge for a maximum of 12 days. The arresting authorities must immediately give them the opportunity to communicate with their families and to receive visits from them. In addition, any detention beyond four days has to be authorized in writing by the public prosecutor. These requirements are routinely violated in the cases of people held by the Department for Information and Security (...) which specializes in interrogating those thought to have information about terrorist activities.
Before they are either brought before the judicial authorities or released without charge, those arrested are systematically held incommunicado for up to 12 days, and sometimes longer. It is while they are in secret detention in barracks operated by the DRS that detainees are most at risk of torture and other ill-treatment.
Amnesty International has received information on several cases where detainees were held by the DRS for months without contact with the outside world in violation of Algerian and international law, during which time they were reportedly subjected to torture and other ill-treatment. Algeria’s civilian authorities have no effective control over the activities of the DRS.”
93. The Amnesty International Report 2011, in its relevant part, reads:
“Officers of the Department of Information and Security (DRS), military intelligence, continued to arrest security suspects and detain them incommunicado, in some cases for more than the 12 days permitted by law, at unrecognized detention centres where they were at risk of torture or other ill-treatment. Impunity for torturing or otherwise abusing security suspects remained entrenched. (...)
Mustapha Labsi was detained for 12 days by the DRS after he was forcibly returned to Algeria from Slovakia on 19 April . He was then transferred to El Harrach prison. At the end of 2010, he was awaiting trial on charges of belonging to a ‘terrorist group abroad’. (...)
In April, security suspects held in El Harrach prison went on hunger strike to protest against alleged ill-treatment by guards who, they said, had insulted, slapped and humiliated them. No official investigation into their allegations was held.
Suspects in terrorism-related cases faced unfair trials. Some were convicted on the basis of ‘confessions’ that they alleged were extracted under torture or other duress, including some who were sentenced to death by military courts. Some were denied access to lawyers of their choice. Other security suspects were detained without trial. (...)
Hasan Zumiri and Adil Hadi Bin Hamlili were transferred to Algeria from US custody in Guantánamo By in January; Abdelaziz Naji was transferred in July. All three remained at liberty while investigations continued to determine whether they would face charges of belonging to a ‘terrorist group abroad’. Two former Guantánamo detainees, Mustafa Ahmed Hamlily and Abdul Rahman Houari, were acquitted of similar charges in February and November, respectively. Another former Guantánamo detainee, Bachir Ghalaab, was sentenced to a suspended prison term.”
I. THE GOVERNMENT’S OBJECTION
II. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION
“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”
1. Arguments of the parties
(a) The applicant
(b) The Government
114. The Government maintained that the applicant had not referred to any specific threat to his person in his country of origin. Following his return to Algeria, the applicant had been placed in El Harach prison, which belongs to prison facilities administered by the Ministry of Justice.
115. Finally, the Government argued that a number of people who had been returned to Algeria, for example from France or Spain (see paragraphs 88-89 above), had not alleged to have been submitted to treatment contrary to Article 3 of the Convention. They also considered that a number of recent international documents indicated that there had been a general improvement of the situation in Algeria as regards the risk of torture or ill-treatment of persons deprived of their liberty.
2. The Court’s assessment
(a) The relevant principles
117. The Court has acknowledged difficulties faced by States in protecting their populations from terrorist violence, which constitutes, in itself, a serious threat to human rights. It has considered it legitimate for Contracting States to take a firm stand against those who contribute to terrorist acts. In the context of the fight against terrorism States must be allowed to deport non-nationals whom they consider to be threats to national security. It is not the Court’s role to review whether an individual is in fact such a threat; its only task is to consider whether that individual’s deportation would be compatible with his or her rights under the Convention.
(b) Application of the relevant principles to the present case
128. In view of the documents before it the Court finds no reason for reaching a different conclusion in the present case. Accordingly, at the time of his expulsion, there were substantial grounds for believing that the applicant faced a real risk of being subjected to treatment contrary to Article 3 of the Convention in his country of origin. The Government’s argument that the applicant’s expulsion was nevertheless justified on the ground that he represented a security risk cannot be accepted. The guarantee under Article 3 of the Convention is absolute and it is not possible to weigh the risk of ill-treatment against the reasons put forward for the expulsion (see Saadi, cited above, § 138).
III. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION
“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”
IV. ALLEGED VIOLATION OF ARTICLE 34 OF THE CONVENTION
“The Court may receive applications from any person, non-governmental organisation or group of individuals claiming to be the victim of a violation by one of the High Contracting Parties of the rights set forth in the Convention or the Protocols thereto. The High Contracting Parties undertake not to hinder in any way the effective exercise of this right.”
“1. The Chamber or, where appropriate, its President may, at the request of a party or of any other person concerned, or of its own motion, indicate to the parties any interim measure which it considers should be adopted in the interests of the parties or of the proper conduct of the proceedings before it.
2. Notice of these measures shall be given to the Committee of Ministers.
3. The Chamber may request information from the parties on any matter connected with the implementation of any interim measure it has indicated.”
151. There has accordingly been a violation of Article 34 of the Convention.
V. APPLICATION OF ARTICLE 41 OF THE CONVENTION
“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”
B. Costs and expenses
158. According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present case, regard being had to the documents in its possession and the above criteria, the Court considers it reasonable to award the sum of EUR 2,500 covering costs under all heads. This amount is to be paid directly into the bank account of Mr Hrbáň.
C. Default interest
FOR THESE REASONS, THE COURT UNANIMOUSLY
(a) that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, the following amounts:
(i) EUR 15,000 (fifteen thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage, which sum is to be held by Mr Hrbáň in trust for the applicant;
(ii) EUR 2,500 (two thousand five hundred euros), plus any tax that may be chargeable to the applicant, in respect of costs and expenses, to be paid directly into the bank account of Mr Hrbáň;
(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;
Done in English, and notified in writing on 15 May 2012, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Santiago Quesada Josep