EGMR

Merkliste
Zitieren als:
EGMR, Urteil vom 09.01.2018 - 36417/16 - asyl.net: M26114
https://www.asyl.net/rsdb/m26114/
Leitsatz:

Keine Abschiebung eines „Terrorverdächtigen“ nach Marokko:

1. Staaten müssen im Rahmen des Kampfes gegen den Terrorismus die Möglichkeit haben Personen, die nicht eigene Staatsangehörige sind, abzuschieben. Allerdings ist das Verbot der Folter oder unmenschlichen und erniedrigenden Behandlung aus Art. 3 EMRK ein absolut unveräußerliches Recht, von dem sogar im Notfall nicht abgewichen werden darf.

2. In Marokko sind Fortschritte in Bezug auf die menschenrechtliche Situation festzustellen und der Beschwerdeführer ist den marokkanischen Behörden bisher nicht aufgefallen. Jedoch hat der schwedische Sicherheitsdienst die marokkanischen Behörden über die Einstufung des Betroffenen als Terrorist informiert. Außerdem bestätigen Herkunftslandinformationen, dass „Terrorverdächtige“ weiterhin willkürlicher Inhaftierung und Folter ausgesetzt sind. Daher würde die Abschiebung des Beschwerdeführers zu einer Verletzung von Art. 3 EMRK führen.

3. Die schwedischen Behörden hätten von Marokko Zusicherungen einholen können.

(Leitsätze der Redaktion; siehe EGMR-Rechtsprechungsübersicht in Asylmagazin 4/2018)

 

Schlagwörter: Gefährdung der öffentlichen Ordnung, Folter, Marokko, Ausweisung, Gefährder, Terrorismus, terrorverdächtig, Abschiebung, unmenschliche oder erniedrigende Behandlung, Zusicherung,
Normen: EMRK Art. 3,
Auszüge:

[...]

55. In this connection, the Court stresses that the issue before it is not whether the applicant would be detained and interrogated, or even convicted of crimes later on, by the Moroccan authorities since this would not, in itself, be in contravention of the Convention. Its concern is whether or not the applicant would be ill-treated or tortured, contrary to Article 3 of the Convention, upon return to his home country. In this respect, the Court reiterates that Article 3 enshrines one of the most fundamental values of democratic societies. Even in the most difficult circumstances, such as the fight against terrorism and organised crime, the Convention prohibits in absolute terms torture and inhuman or degrading treatment or punishment. Unlike most of the substantive clauses of the Convention and of Protocols Nos. 1 and 4, Article 3 makes no provision for exceptions and no derogation from it is permissible under Article 15 § 2 even in the event of a public emergency threatening the life of the nation (see Selmouni v. France [GC], no. 25803/94, § 95, ECHR 1999-V; Assenov and Others v. Bulgaria, 28 October 1998, § 93, Reports of Judgments and Decisions 1998-VIII; and Chahal, cited above, § 79). [...]

57. The applicant essentially claims that, since the Moroccan authorities know that he is considered a security threat in Sweden, he will be arrested upon return and tortured as a suspected terrorist. He alleges that the type of activity he is accused of by the Swedish Security Service is a criminal offence under Moroccan terrorist legislation. The Court observes that the Swedish Government have acknowledged that the Security Service has been in contact with the Moroccan authorities and informed them about the applicant. The Moroccan authorities are thus aware that the applicant is considered a national security threat in Sweden and they have certain information about him. This clearly distinguishes the present case from the case of A.J. v. Sweden, referred to by the Government (see paragraph 42 above). Moreover, the Court notes that it is the Swedish Security Service which is responsible for the enforcement of the applicant’s expulsion and that its officers will escort him back to his home country. In view of this, and having regard to the material from reliable international sources which show that arbitrary detention and torture continue to occur in cases related to persons suspected of terrorism and considered a national security threat (see paragraphs 27, 28 and 30 above), the Court considers that the applicant

has shown that there is a risk of his being subjected to treatment contrary to Article 3 if expelled to his home country. [...]

59. In response to this, the Court first notes that both the Migration Agency and the Migration Court of Appeal, when examining the applicant’s case, appear not to have been informed that the Security Service had contacted the Moroccan authorities and informed them about the applicant before his expulsion. It transpires from their decisions that they reached their conclusions without having this essential information which the Court now has before it (see paragraphs 11 and 15 above). In view of this, the Court finds that it cannot rely on the Migration Agency and the Migration Court of Appeal’s findings and conclusions in this respect. Moreover, the Court observes that, not only is the Security Service the authority which undertook the security assessment of the applicant, but it is also responsible for the enforcement of the expulsion order against the applicant and, as acknowledged by the Government, it is the authority which will also escort the applicant back and hand him over to the Moroccan authorities. These various roles notwithstanding, and despite having acknowledged the risk of ill-treatment during detention of suspected terrorists in Morocco, the Government have stated that they see no reason to take special measures to ensure that the applicant, once expelled from Sweden, would not be subjected to treatment contrary to Article 3 of the Convention.

60. In view of the above, the Court finds that the Government have failed to dispel the doubts raised by the applicant. On the contrary, the Court considers that the circumstance that the migration authorities appear not to have received all relevant and important information to make their decision raises concern as to the rigour and reliability of the domestic proceedings. Moreover, having regard to the efforts made by the Moroccan authorities to improve the human rights situation in the country over several years, the Court notes that no assurances by the Moroccan authorities relating to the treatment of the applicant upon return, or if he were to be detained, access to him by Swedish diplomats, have so far been obtained in order to help eliminate, or at least substantially reduce, the risk of the applicant being subjected to ill-treatment once returned to his home country.

61. It follows that, in the present circumstances, the applicant’s expulsion to Morocco would involve a violation of Article 3 of the Convention. [...]