Information Note on the Court’s case-law 250

April 2021

K.I. v. France - 5560/19

Judgment 15.4.2021 [Section V]

Article 3

Expulsion

Order for deportation to Russia of Chechen refugee, after status revoked on grounds of terrorism conviction, without ex nunc assessment of risks: deportation would constitute a violation

Facts – The applicant was a Russian national of Chechen origin who had been granted refugee status by the French Asylum Authority (OFPRA). His status was subsequently revoked by the OFPRA, in a decision upheld by the National Asylum Court (CNDA), on the grounds that he had been sentenced for a terrorism offence and represented a serious threat to French society in accordance with the provision of domestic law which transposed Article 14 § 4 (b) of Directive 2011/95/EU . An order was subsequently issued for his deportation to Russia and he opposed its enforcement.

Law – Article 3 (procedural limb):

Article 19 and 32 § 1 of the Convention indicated that the Court did not have jurisdiction to apply the rules of the European Union (EU) or to examine alleged breaches thereof, unless and to the extent that such breaches also entailed a violation of the rights and freedoms secured by the Convention. To date the Court had not ruled on the distinction made in EU law and in domestic law between the status of refugee and the very fact of being a refugee. Neither the Convention nor its Protocols protected the right of asylum as such. The relevant protection was confined to the rights enshrined therein, in particular those under Article 3 of the Convention, which encompassed the prohibition of refoulement within the meaning of the 1951 Geneva Convention on the status of refugees (see N.D. and N.T. v. Spain [GC]).

The protection afforded by Article 3 was absolute in nature. For a planned forcible expulsion to be in breach of the Convention it would be necessary – and sufficient – for substantial grounds to have been shown for believing that there was a real risk that the person concerned would be subjected in the destination country to treatment prohibited by Article 3, even where that person was considered to represent a threat to the national security of the Contracting State ( Saadi v. Italy [GC]). The Court required a full and ex nunc assessment.

The Court had previously found that, even though serious violations of human rights had been reported in Chechnya, the situation was not such that any return to Russia would constitute a violation of Article 3. However, it could be seen from international reports that there were particular risks for individuals with connections to members of the Chechen armed resistance and those who had been suspected or convicted of terrorism offences.

The Court had, in the present case, been asked for the first time to examine the situation of a Russian applicant of Chechen origin claiming that he faced treatment in breach of Article 3 on account of his criminal conviction for terrorism in the respondent State. In addition, the case concerned an applicant whose refugee status, granted by that State, had been revoked.

The applicant alleged that he faced a risk on account of having sustained detention and torture in Russia because of his kinship with individuals fighting alongside the Chechen resistance, his refusal to cooperate with the authorities, and the fact that he was still wanted for those acts, which had justified the OFPRA’s decision to grant him refugee status. While it was not the Court’s task to rule on the appropriate consequences of the withdrawal of his status under the Geneva Convention , EU law or French law, it had to take account of the fact that at the time when the status had been granted, the French authorities had taken the view that there was sufficient evidence to show that he faced a risk of persecution in his country of origin.

However, a certain period of time had elapsed since then, and only two of the applicant’s close relatives still lived in Chechnya. The male members of his family had either died or were beneficiaries of international protection in Europe.

In addition, the applicant had organised his departure from France to Syria in March 2013, shortly after he had been interviewed by the OFPRA in June 2012 and granted refugee status in January 2013. He had travelled there at the beginning of August 2013 via Germany, Poland (where he collected his Russian "external passport"), Ukraine and Turkey. The applicant had not explained how he had managed to obtain this passport, given that its issuance to a person whose activities had already attracted the attention of the Russian authorities seemed highly unlikely. In the summer of 2013, his relatives living in Chechnya had obtained the passport, but the applicant had not alleged that they had been harassed by the Russian authorities. Furthermore, the applicant had not provided any concrete evidence of the authorities’ continuing interest in him.

The applicant had also alleged that he faced a risk on account of the Russian and Chechen authorities’ knowledge of his criminal conviction in France and the fact that he was still a wanted person because of his links with a jihadist group in Syria. The Government had submitted that several other individuals convicted in France for their involvement in terrorist activities had been returned to Russia without having invoked any risk under Article 3 before the national authorities or the Court. The Court was unable to deduce from these facts alone, which were in any event devoid of any detail enabling their scope to be assessed, that the applicant would not personally face any such risk. Nevertheless, one of his co-defendants, who had returned to Chechnya from Syria, had not encountered any problems in this connection.

While the Court could not entirely rule out the possibility that the Russian authorities were aware of the applicant’s criminal conviction in France, there was no evidence that they had any particular interest in the applicant or that he was a wanted person in Russia because of his links with a jihadist network in Syria. In any event, the nature of the applicant’s conviction in France and the national and international contexts, with the strong and longstanding backdrop of the fight against terrorism, did not rule out the possibility that he might be subjected to monitoring and surveillance measures on his return to Russia, without such measures constituting, in themselves, treatment prohibited by Article 3. Thus the Court’s task was limited to verifying whether the applicant was at risk of being ill-treated or tortured, in violation of Article 3, in that country.

In May 2019 the Administrative Court rejected the applicant’s appeal against the order designating Russia as the destination country after analysing, in terms of Article 3, the risks that he claimed to face.

The applicant’s situation could not be compared to that of asylum-seekers who had just fled their country and who were vulnerable because of everything they had been through during their recent migration. As he could not be characterised as a “vulnerable” person, and having regard to the distribution of the burden of proof in such cases, there was no need to give him the benefit of the doubt.

Without prejudice to the burden of proof, a full and ex nunc assessment of an applicant’s complaint would be required where it was necessary to take account of factors arising since the final decision by the domestic authorities. The Court of Justice of the European Union (CJEU) had delivered a judgment in cases C‑391/16, C-77/17 and C‑78/17 of 14 May 2019, two days before the Administrative Court’s judgment (which had become final) concerning the risks that the applicant claimed to be facing in Russia. The CJEU had found that the withdrawal of refugee status on grounds of a threat to the security or society of the host member State, pursuant to Article 14 § 4 (b) of Directive 2011/95/EU , did not affect the fact of actually being a refugee, or the benefit of the non‑refoulement principle. It could thus be seen from this case-law, as well as from that of the Conseil d’État , which had applied it in a judgment of June 2020, that the applicant had remained a refugee despite being deprived of formal recognition of that status, as the CNDA had not upheld the OFPRA’s submission that the exclusion clause under Article 1F of the Geneva Convention should be applied. The French authorities, when they had issued and subsequently reviewed the decision to deport him to Russia, had not taken into consideration the fact that the applicant thus remained a refugee. They had not therefore assessed the risks that the applicant might face in the light of that situation or the fact that, at least on his arrival in France in 2011, he had been identified as belonging to a targeted group.

The Court could not rule out the possibility that, following a thorough and full examination of the applicant’s personal situation and verification of whether or not he was still a refugee, the French authorities might still have reached the same conclusion as the Administrative Court, namely that there was no risk to him under Article 3 of the Convention if he were deported to Russia. The Court noted, however, that the CNDA had already advised against the expulsion of certain individuals to their country of nationality on the grounds that, although they had lost refugee status, they had remained refugees, even in a case concerning the deportation to Russia of a Russian national of Chechen origin with a similar profile to that of the applicant. In the relevant two opinions, the CNDA had found that the impugned decisions determining the country of destination had disregarded France’s obligation to uphold the right to protection of refugees against refoulement , under both the EU Charter of Fundamental Rights and Article 3 of the Convention.

The Court concluded that there would be a violation of Article 3 of the Convention, under its procedural aspect, if the applicant were deported to Russia without a full and ex nunc assessment by the French authorities of the risk that he would face in the event of his return.

Conclusion : violation in event of deportation to Russia (unanimously).

Article 41: finding of violation sufficient for non-pecuniary damage.

The interim measure indicated under Rule 39 would continue to be applied until the present judgment became final, unless the Court were to take a fresh decision in this connection.

(See also Saadi v. Italy [GC], 37201/06, 28 February 2008, Legal summary ; Abdolkhani and Karimnia v. Turkey , 30471/08, 22 September 2009, Legal summary ; M.G. v . Bulgaria , 59297/12, 25 March 2014, Legal summary ; N.D. and N.T. v. Spain [GC], 8675/15 et 8697/15, 13 February 2020, Legal summary ; Shiksaitov v. Slovakia , 56751/16 and 33762/17, 10 December 2020, Legal summary )

© Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court.

Click here for the Case-Law Information Notes