EGMR

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Zitieren als:
EGMR, Urteil vom 24.03.2020 - 24917/15 Asady u.a. gg. Slowakei - asyl.net: M28254
https://www.asyl.net/rsdb/m28254/
Leitsatz:

Kein Verstoß gegen Verbot der Kollektivausweisung bei Zurückweisung einer Gruppe von Schutzsuchenden aus der Slowakischen Republik in die Ukraine:

1. Nach Rechtsprechung des Gerichtshofs zum Verbot der Kollektivausweisung nach Art. 4 EMRK-Protokoll Nr. 4 ist nicht unbedingt bei jeder Ausweisung eine Anhörung durchzuführen. Ferner ist eine Ausweisung auch dann nicht kollektiv, wenn mehreren Personen gegenüber ähnliche Entscheidungen gefällt werden (EGMR, Urteil vom 15.12.2016 - Khlaifia u.a. gg. Italien; EGMR, Urteil vom 13.02.2020 - 8675/15; 8697/15 - N.D. und N.T. gegen Spanien - asyl.net: M28138).

2. Bei der Zurückschiebung einer Gruppe von 19 Männern aus Afghanistan aus der Slowakischen Republik in die Ukraine wurde nicht gegen das Verbot der Kollektivausweisung verstoßen. Auch wenn die Bescheide gegenüber allen Betroffenen gleich lauten und Unstimmigkeiten aus den Anhörungsprotokollen hervorgehen, wurde nicht nachgewiesen, dass Anhörungen überhaupt nicht stattfanden oder Asylgesuche ignoriert wurden. Den Betroffenen wurde ausreichend Gelegenheit gegeben, Gründe gegen die Zurückschiebung vorzubringen.

3. Da keine Kollektivausweisung festgestellt werden konnte und keine Verletzung des Rechts auf Leben nach Art. 2 EMRK oder des Folterverbots nach Art. 3 EMRK vorgebracht wurde, ist die geltend gemachte Verletzung von Art. 13 EMRK als offensichtlich unbegründet abzulehnen.

(Leitsätze der Redaktion; Abweichendes Votum von drei der sieben Richter*innen der Kammer)

Anmerkung:

Schlagwörter: Kollektivausweisung, Asylverfahren, Anhörung, Rechtsmittel, faires Verfahren, Asady, Zurückschiebung, Zurückweisung, Ausweisung, Asylgesuch, Slowakische Republik, Ukraine, EGMR, Europäische Menschenrechtskonvention, Verfahrensfehler, wirksamer Rechtsbehelf, effektiver Rechtsschutz,
Normen: EMRK-Protokoll Nr. 4 Art.4, EMRK Art. 3, EMRK Art. 13, EMRK Art. 2,
Auszüge:

[...]

2. The Court’s assessment

(a) Principles established in the Court’s case-law

57. The Court points to its case-law concerning Article 4 of Protocol No. 4, as set out, with regard to migrants and asylum-seekers, in the judgments in Hirsi Jamaa and Others, Sharifi and Others, and Khlaifia and Others (all cited above). According to that case-law, an expulsion is deemed to be "collective" for the purposes of Article 4 of Protocol No. 4 if it compels aliens, as a group, to leave a country, "except where such a measure is taken on the basis of a reasonable and objective examination of the particular case of each individual alien of the group" (see Khlaifia and Others, cited above, §§ 237 et seq.; Georgia v. Russia (I), cited above, § 167; Andric v. Sweden (dec.), no. 45917/99, 23 February 1999; Davydov v. Estonia (dec.), no. 16387/03, 31 May 2005; Sultani v. France, no. 45223/05, § 81, ECHR 2007-IV (extracts); and Ghulami v. France (dec.), no. 45302/05, 7 April 2009). The fact that a number of aliens are subject to similar decisions does not in itself lead to the conclusion that there is a collective expulsion, if each person concerned has been given the opportunity to put arguments against his or her expulsion to the competent authorities on an individual basis (see Khlaifia and Others, cited above, § 239; see also M.A. v. Cyprus, no. 41872/10, §§ 246 and 254, ECHR 2013 (extracts); Sultani, cited above, § 81; Hirsi Jamaa and Others, cited above, § 184; and Georgia v. Russia (I), cited above, § 167). However, Article 4 of Protocol No. 4 does not guarantee the right to an individual interview in all circumstances, as the requirements of this provision may be satisfied where each alien has a genuine and effective possibility of submitting arguments against his or her expulsion, and where those arguments are examined in an appropriate manner by the authorities of the respondent State (see Khlaifia and Others, cited above, § 248; N.D. and N.T. v. Spain, cited above, §§ 193 and 199). [...]

(b) Application of those principles in the present case

60. In the present case, it is not disputed that the applicants were expelled after they had irregularly entered Slovak territory and that they were returned to Ukraine; this clearly amounts to an "expulsion" within the meaning of Article 4 of Protocol No. 4 as interpreted by the Court (see, most recently, N.D. and N.T. v. Spain, cited above, §§ 166-191). The Court is thus called to ascertain whether the applicants’ expulsion was "collective" in nature.

61. The Court observes that the applicants have not disputed the fact that, after being brought to the police station for the purposes of their identification, they underwent interviews, following which a separate administrative decision was made in respect of each of them. It is true, as the applicants pointed out, that the expulsion decisions were drafted in almost identical terms. However, according to the case-law cited in paragraph 57, this fact cannot in itself be decisive. In the Court’s view, the relatively simple and standardised nature of the expulsion orders can be explained by the fact that the transcripts of the applicants’ interviews do not contain any statement regarding any possible ill-treatment in the event of their readmission to Ukraine or regarding the existence of any other legal obstacles to their expulsion. It is therefore not unreasonable for those orders to have been justified merely by the fact that the applicants were third-country nationals who had committed an administrative offence by unlawfully crossing the Slovak border, and by the absence of any of the situations provided in section 81 of the Aliens Act (see paragraph 10 above).

62. The Court notes that, although the applicants had crossed the Slovak border in an unauthorised manner, they were intercepted in the territory of Slovakia and the State provided them access to means of legal entry through the appropriate border procedure (see, conversely, N.D. and N.T. v. Spain, cited above). It thus remains to be established whether the applicants were afforded, prior to the adoption of the impugned expulsion orders, an effective possibility of submitting arguments against their removal and whether there were sufficient guarantees demonstrating that their personal circumstances had been genuinely and individually taken into account.

63. In this regard, the Court observes that the parties are not in agreement as to the conditions of the interviews conducted in the present case; they also disagree as to whether the applicants actually declared their intention to request asylum. The Government submitted that genuine individualised interviews had been carried out in the presence of an interpreter; the contents of those interviews had then been recorded in the transcripts thereof, which had been signed by the applicants. The applicants alleged, by contrast, that they had not been interviewed separately, that the interviews had been carried out under extreme time pressure and that several of those interviews had overlapped, and that they had been made to sign documents whose contents had been unknown to them.

64. The Court notes that the file contains transcripts of oral explanations provided by the applicants concerning their irregular border-crossing, as well as transcripts of individual interviews conducted with them in their capacity as parties to the expulsion proceedings; those documents were signed by the applicants and the interpreter (see paragraph 7 above). According to these transcripts, all the interviews were carried out on 17 November 2014 between 9.10 and 12.30, lasted exactly ten minutes and were conducted by two police officers in the presence of the interpreter (see paragraph 8 above). It is true that the official times of some interviews overlapped, which the Government explained by the fact that there could have been some errors in the recording of those interviews owing to the fact that the interviews had taken place in the night and early morning hours. Even if, in the Court’s view, such an explanation does not appear entirely plausible, given that the interviews took place between 9.10 and 12.30, it is not in itself sufficient to justify the applicants’ view that the interviews were not conducted on an individual basis. Moreover, the Court has already held that Article 4 of Protocol No. 4 does not guarantee the right to an individual interview in all circumstances (see paragraph 57 in fine above).

65. Indeed, what matters is whether the applicants had a genuine and effective opportunity to submit arguments against their expulsion (see, among other authorities, Sultani, cited above, § 81, and Hirsi Jamaa and Others, cited above, § 184).

66. In this connection, the Court is ready to accept the fact that the applicants were asked standardised questions, in so far as those questions were aimed at establishing the factors that had led the applicants to leave their country of origin and the circumstances of their entry onto Slovak territory. While the applicants’ answers were very similar, it may be presumed that the details of their journey might have been similar as well, since they had been travelling as a group; the recordings also differ in the amount of money that the applicants declared as being in their possession, which rather points to an individualised approach. Moreover, the fact that the interviews were rather short may be a consequence of the applicants not stating anything that would require a more thorough examination.

67. Furthermore, the applicants have not put forward any arguments to refute their statements, as recorded in the transcripts of their interviews. According to those statements, they had not suffered any persecution in their country of origin, and nor had the death penalty been imposed on them there; rather, they had left Afghanistan for economic reasons and wished to go on to Germany and thus did not wish to seek asylum in Slovakia (see paragraph 7 above). They have thus not asserted any risk of being subjected to a treatment which is incompatible with the Convention (see paragraph 58 above). It is to be noted that the existence of any possible obstacles (under Articles 3 and 8 of the Convention) to the administrative expulsion of the applicants was nevertheless subject to examination by the police authority, and that regard was paid to the fact that the applicants did not risk any forced return to their country (see paragraph 10 above).

68. Moreover, the Court does not have any proof that the transcripts of the applicants’ interviews did not correspond to the applicants’ actual statements, or that those statements were wrongly translated (as alleged by the applicants), nor does it have any reason to believe that the applicants’ requests for asylum were ignored by the police. It is to be noted, on the other hand, that no personal reasons supporting the applicants’ requests for asylum were mentioned either in their conversations with the Ukrainian lawyer (see paragraph 13 above) or in their appeals against the expulsion orders (see paragraph 14 above).

69. It is significant that – as stated and documented by the Government (see paragraph 6 in fine above) and not disputed by the applicants – twelve migrants arrested together with the applicants expressed their wish to apply for asylum, thus halting their return and resulting in their transfer to a reception centre for asylum seekers. There is thus no reason to assume that the Slovak authorities, which heeded the wishes of those other migrants to seek asylum, would have remained unreceptive to similar requests on the part of the applicants. [...]

71. In view of the above, the Court does not find that the applicants were deprived of the possibility to draw the attention of the national authorities to any circumstance that might affect their status and entitle them to remain in Slovakia, or that their removal to Ukraine was carried out without any form of examination of their individual situation.

In conclusion, there has been no violation of Article 4 of Protocol No. 4 to the Convention.

III. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION TAKEN IN CONJUNCTION WITH ARTICLE 4 OF PROTOCOL No. 4 [...]

75. In the present case the Court, having regard to the particular circumstances and the available evidence, was not persuaded that the applicants’ expulsion was "collective" within the meaning of Article 4 of Protocol No. 4 or that the applicants were effectively prevented from applying for asylum. The position here is therefore akin to that in cases such as Halford v. the United Kingdom (25 June 1997, § 70, Reports 1997-III), Russian Conservative Party of Entrepreneurs and Others v. Russia (nos. 55066/00 and 55638/00, § 90, ECHR 2007-I), and Ivan Atanasov v. Bulgaria (no. 12853/03, § 101, 2 December 2010), in which the Court, having regard to the particular circumstances, departed from its usual approach and found that complaints that had been declared admissible were nonetheless not arguable in terms of Article 13.

76. Bearing in mind its case-law stemming from similar cases (see Khlaifia and Others, cited above, §§ 279 and 281), the Court also observes that the applicants did not raise any separate complaints under Articles 2 and 3, and nor did they substantiate their fear of being persecuted in Afghanistan.

77. Accordingly, however the applicants’ grievance is construed, the applicants have no arguable claim for the purposes of Article 13 of the Convention. [...]