Zitieren als:
EGMR, Entscheidung vom 08.04.2008 - 21878/06 - M13639
Schlagwörter: Uganda, Europäische Menschenrechtskonvention, Europäischer Gerichtshof für Menschenrechte, EGMR, Rechtswegerschöpfung, Beweislast, Abschiebungshindernis, zielstaatsbezogene Abschiebungshindernisse, menschenrechtswidrige Behandlung, Oppositionelle, Sippenhaft, Sachaufklärungspflicht, Herkunftsländerinformationen
Normen: EMRK Art. 35 Abs. 1; EMRK Art. 3

42. The Court recalls that the rule of exhaustion of domestic remedies in Article 35 § 1 of the Convention requires applicants first to use the remedies provided by the national legal system, thus dispensing States from answering before the European Court for their acts before they have had an opportunity to put matters right through their own legal system. The burden of proof is on the Government claiming non-exhaustion to satisfy the Court that an effective remedy was available in theory and in practice at the relevant time, namely, that the remedy was accessible, capable of providing redress in respect of the applicant's complaints and offered reasonable prospects of success (see T. v. the United Kingdom [GC], no. 24724/94, 16 December 1999, § 55). Further, where there is a choice of remedies open to an applicant, Article 35 must be applied to reflect the practical realities of the applicant's position in order to ensure the effective protection of the rights and freedoms guaranteed by the Convention (Hilal v. the United Kingdom (dec.), no. 45276/99, 8 February 2000).

43. As to the Government's submission that the applicant failed to exhaust available domestic remedies by not renewing her application for leave to appeal against the IAT's decision of 26 September 2000 to the Court of Appeal, the Court notes that this option was available to her under Paragraph 23 of the 1999 Act which provided only for appeals on "a question of law". According to the reasons given by the IAT, permission to appeal to the Court of Appeal was refused on the basis that the applicant's grounds of appeal did "not disclose any arguable point of law". Having regard to the clear position taken by the IAT, the Court is not persuaded that the Government have shown that a renewed application to the Court of Appeal for leave to appeal would have offered any reasonable prospects of success.

44. As regards the Government's second submission regarding non-exhaustion (see paragraph 39 above), even assuming that the applicant could have applied to the IAT against the Adjudicator's refusal of her human rights appeal of 11 January 2005 following the provisions of the Commencement Order 2003, despite the entry into force of the Commencement Amendment Order 2003 cited above (see paragraph 33 above), the Court does not regard this as a remedy which was accessible, capable of providing redress and offering reasonable prospects of success. In so finding, the Court observes that it was not entirely clear which provisions were applicable to the applicant's case due to the change to the applicable legislation introduced by the 2002 Act and its concomitant Commencement Orders. The Court further notes the Adjudicator's observation during the January 2005 hearing that the applicant's representative herself had conceded that the Article 3 point was difficult to uphold and considers this to be strong evidence that any further appeal, if available, would offer little if any prospects of success. In light of the foregoing, the Court finds that the applicant's application to the Secretary of State on human rights grounds and her subsequent appeal against that decision to an Adjudicator under section 65 of the 1999 Act, all following the failure of her initial asylum claim, were sufficient to dispense her from the obligation to exhaust all domestic remedies under Article 35 § 1 of the Convention.

45. As to the Government's third submission that the applicant could have applied for permission to apply for judicial review of the Secretary of State's decision of 27 March 2006, the Court notes the applicant's explanation that she was advised by her solicitors not to pursue leave to apply for judicial review for a second time, as there was no new evidence to support her claims. In light of the applicant's unsuccessful application for leave to apply for judicial review in April 2005 and the lack of any new evidence, the Court similarly finds that this remedy offered little if any prospects of success. Finally, the Court does not consider the Government's final submission that the applicant could have made further representations to the Secretary of State tenable, as by the Government's own admission there was no material which had not been considered previously. It follows that this was not an adequate or effective remedy for the purposes of Article 35 § 1 of the Convention.

46. In view of the foregoing, the Court dismisses the Government's objections on non-exhaustion. It concludes that the application is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. Nor have any other grounds for declaring it inadmissible been established. It must therefore be declared admissible.

50. It is the Court's settled case-law that as a matter of well-established international law, and subject to their treaty obligations, including those arising from the Convention, Contracting States have the right to control the entry, residence and removal of aliens (see, among many other authorities, Abdulaziz, Cabales and Balkandali v. the United Kingdom, judgment of 28 May 1985, Series A no. 94, § 67, and Boujlifa v. France, judgment of 21 October 1997, Reports of Judgments and Decisions 1997-VI, § 42). In addition, neither the Convention nor its Protocols confer the right to political asylum (see Vilvarajah and Others v. the United Kingdom, judgment of 30 October 1991, Series A no. 215, § 102, and Ahmed v. Austria, judgment of 17 December 1996, Reports 1996-VI, § 38, cited in Saadi v. Italy, [GC], no. 37201/06, judgment of 28 February 2008, §§ 124).

51. 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 implies an obligation not to deport the person in question to that country (see Soering v. the United Kingdom, judgment of 7 July 1989, Series A no. 161, §§ 90-91; Vilvarajah and Others, cited above, § 103; Ahmed, cited above, § 39; H.L.R. v. France, judgment of 29 April 1997, Reports 1997-III, § 34; Jabari v. Turkey, no. 40035/98, § 38, ECHR 2000-VIII; Salah Sheekh v. the Netherlands, no. 1948/04, § 135, 11 January 2007; and Saadi, cited above, § 125).

52. In determining whether substantial grounds have been shown for believing that there is a real risk of treatment incompatible with Article 3, the Court will take as its basis all the material placed before it or, if necessary, material obtained proprio motu (see H.L.R. v. France, cited above, § 37, and Hilal v. the United Kingdom, no. 45276/99, § 60, ECHR 2001-II). In cases such as the present the Court's examination of the existence of a real risk must necessarily be a rigorous one (see Chahal v. the United Kingdom, judgment of 15 November 1996, Reports 1996-V, § 96; and Saadi, cited above, § 128).

53. 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.

54. 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; and Saadi, cited above, §§ 128-129).

55. To that end, as regards the general situation in a particular country, the Court has often attached importance to the information contained in recent reports from independent international human-rights-protection associations such as Amnesty International, or governmental sources, including the US State Department (see, for example, Chahal, cited above, §§ 99-100; Müslim v. Turkey, no. 53566/99, § 67, 26 April 2005; Said v. the Netherlands, no. 2345/02, § 54, 5 July 2005; and Al-Moayad v. Germany (dec.), no. 35865/03, §§ 65-66, 20 February 2007). At the same time, it has held that 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 (see Vilvarajah and Others, cited above, § 111, and Fatgan Katani and Others v. Germany (dec.), no. 67679/01, 31 May 2001) and that, where the sources available to it describe a general situation, an applicant's specific allegations in a particular case require corroboration by other evidence (see Mamatkulov and Askarov v. Turkey [GC], nos. 46827/99 and 46951/99, § 67, ECHR 2005-I § 73; Müslim, cited above, § 68; and Saadi, cited above, § 131).

56. With regard to the material date, the existence of the risk must be assessed primarily with reference to those facts which were known or ought to have been known to the Contracting State at the time of expulsion. However, if the applicant has not yet been extradited or deported when the Court examines the case, the relevant time will be that of the proceedings before the Court (see Chahal, cited above, §§ 85-86, and Venkadajalasarma v. the Netherlands, no. 58510/00, § 63, 17 February 2004). This situation typically arises when, as in the present case, deportation or extradition is delayed as a result of an indication by the Court of an interim measure under Rule 39 of the Rules of Court (see Mamatkulov and Askarov, cited above, § 69). Accordingly, while it is true that historical facts are of interest in so far as they shed light on the current situation and the way it is likely to develop, the present circumstances are decisive (see, Saadi, cited above, § 133).

60. The Court views the applicant's account that she had initially planned to visit the United Kingdom as a tourist before late September 1998, when her father was brought to the family home handcuffed by the authorities who were searching for evidence, as an indication that she was not fearful of the situation in Uganda until that event. It further notes the observations of the domestic authorities in this regard, in particular that of the IAT in its majority decision of 26 September 2000, that neither the applicant nor any other family members were arrested or in any way mistreated during the said raid on the family home, and their conclusion that if the authorities had intended to use the applicant to extract information to assist in her father's conviction they would have done so during the raid of September 1998 when they were specifically looking for incriminating evidence. Despite the raid on her family home, the Court notes that the applicant managed to leave Uganda on her own passport a few days after the incident without any reported difficulties.

61. Moreover, the Court cannot ignore the fact that the applicant's father has now been in detention and in the custody of the Ugandan authorities for almost ten years. It considers further that if the authorities had wanted information concerning the applicant's father they would have been more likely to detain her before he was found and taken into their exclusive custody. Nor has it been explained why the applicant would be expected to know any more about her father's political activities than he himself, particularly after the passage of almost ten years during which she has been out of the country. Having regard to all these considerations, the Court finds that no substantial grounds have been shown for believing that the applicant is of any continuing special interest to the Ugandan authorities or that she will be persecuted upon her return.

62. In support of its above conclusion, the Court takes into consideration the applicant's representative's concession before the Adjudicator on 11 January 2005 that the Article 3 complaint would be hard to uphold and that there was "no emphatic ground" on which to contend that Article 3 would be breached. It also notes that despite the fact that the applicant's mother and siblings appear to reside in Kenya, the rest of the family, including her niece, were doing well in Uganda at the time of the Adjudicator's determination of January 2005.

63. As is incumbent upon it, the Court has taken into account all relevant country information submitted by the parties and that obtained proprio motu. As to the 2006 US State Department (USSD) report on Uganda which the applicant submitted and its references to reports that the Ugandan Government has punished family members of opposition members, the Court observes that the more recent USSD report released in March 2007 explains that "unlike in the previous year, there were no reports that the government punished family members of suspected criminals and political opposition members" (see paragraph 36 above). Similarly the Court takes into consideration the Home Office's recent Operational Guidance Note on Uganda of 15 January 2007 (see paragraph 35 above), which states that in cases of low-level activists detained for a few days and then released without charge the harassment suffered would not reach a level of persecution in breach of Article 3 of the Convention. The Court notes that by the applicant's own admission she was not politically active in any way in Uganda, a fact which was highlighted by the domestic courts and the respondent Government. Considering that the country information shows that even low-level activists would not be at risk of persecution in Uganda, the Court finds no reason to believe that someone who has never been active at all would be at risk merely by association with a relative. This conclusion is further supported by the 2007 USSD report cited above.

64. The Court observes that the only suggestion of potential targeting of the family members of political opponents is to be found in the applicant's reference to the Immigration and Refugee Board of Canada report dated October 2000, which refers to an event in 1999 when a mother of an alleged rebel chief, whom security forces had questioned several times regarding her son's whereabouts, was reportedly harassed and tortured by members of the Directorate of Military Intelligence. The Court notes that this event occurred a significant time ago, approximately nine years, and that it is unsupported by any other corroborating country evidence as to the existence of a general risk to the families of political opponents. Furthermore, this reported incident can be distinguished from the facts of the present case in that it involved questioning as to a son's whereabouts on numerous occasions on which the mother had presumably initially failed to cooperate. In the instant case, however, the applicant's father's location is known as he has been in detention and in the custody of the authorities for almost ten years. Furthermore, the applicant has not been detained or questioned during several periods when it was clearly open to the authorities to do so.

65. Therefore, after examining the individual circumstances of the applicant in the light of the current general situation in Uganda (see Vilvarajah and Others, cited above, § 108), the Court finds that no substantial grounds have been established for believing that she would be exposed to a real risk of torture or inhuman or degrading treatment within the meaning of Article 3 of the Convention if expelled.

66. Accordingly, the expulsion of the applicant to Uganda would not be in violation of Article 3 of the Convention.