Recent decisions: Violation of Art. 2 and Art. 3 ECHR
Home/Recent decisions: Violation of Art. 2 and Art. 3 ECHR
2022-11-16T14:13:18+01:005. July, 2022|
Violation in the constitutionally guaranteed right to life under Article 2 ECHR and in the right under Article 3 ECHR not to be subjected to torture or inhuman or degrading punishment or treatment:
Despite the extreme volatility of the security situation and the precarious supply situation in Afghanistan evident at that time, the Federal Administrative Court still dismissed the complaint of a person who had fled Afghanistan as unfounded in mid-November 2021 – i.e. months after the Taliban had taken complete power in Afghanistan – and thus confirmed the return decision issued against the person. One of the reasons given by the court was that, in its view, the security situation in Afghanistan was expected to calm down after the Taliban took power (sic!).
The Constitutional Court also overturned this decision in its ruling of 29 June 2022, E 4621/2021, which was delivered today:
“In its decision regarding the non-recognition of the status of beneficiary of subsidiary protection, the Federal Administrative Court applied Section 8 (1) of the 2005 Asylum Act in a manner contrary to Articles 2 and 3 of the ECHR. (…)
In the opinion of the Constitutional Court, in particular on the basis of the brief information – available at the time of the decision of the Federal Administrative Court – of the state documentation of 19 July 2021, an extreme volatility of the security situation in Afghanistan had to be assumed, so that in any case a situation existed in which returnees to Afghanistan would be exposed to a real danger of a violation of their constitutionally guaranteed rights under Articles 2 and 3 ECHR (…). In view of the current reporting situation, according to which the situation in Afghanistan (still) remains volatile (…), the Constitutional Court did not see any reason to deviate from this opinion (…).
Moreover, the Federal Administrative Court’s discussion of the security situation in Afghanistan is limited to references to media reports on individual security aspects (in particular, according to which combat operations are no longer taking place); references to arbitrary checks and punishments, up to and including targeted executions, are not addressed, for example, although they can be found in the country reports cited in the challenged decision.
The assessment of the Federal Administrative Court with regard to the supply situation in Afghanistan is also not reasonable for the Constitutional Court in view of the current reporting situation (…).”
The Federal Administrative Court now has to make a new decision and – from today’s perspective – will have to grant my client the status of beneficiary of subsidiary protection.