Case summary

Deciding Body
Sofia City Administrative Court
Административен съд, София град
Bulgaria
National case details
Registration ID: Decision n. 2571/2017
Instance: Appellate on fact and law
Case status: Final
Area of law
Migration and asylum


Asylum
Return

Identification of the case

Fundamental rights involved
  • Right to asylum (art. 18 CFREU)
  • Protection in the event of removal, expulsion or extradition (art. 19 CFREU)
EU law sources
  • Articles 18 and 19 CFREU
  • Articles 8 and 15 of Qualification Directive 2011/95/EU
ECHR provisions
Articles 2 and 3 ECHR

Summary of the case

Facts of the case

 Mohamed Al Kurdi is a stateless person, born in the Gaza Strip with Palestinian nationality.  According to his asylum story he left the Gaza Strip legally in June 2016, and passing through Egypt and Turkey he entered legally in Bulgaria on the basis of a visa issued to him. His visit was due to the invitation to a seminary for basketball judges in Sofia organized by a  Bulgarian company. Al Kurdi claims that he had to visit the Bulgarian Embassy in Tel Aviv to obtain his visa. He left Gaza and he went to the embassy; because he had two days more he decided to visit Jerusalem. There he took pictures of himself and posted them on his Facebook page. On his return to Gaza, Al Kurdi was summoned to the Interior Ministry on 14 April 2016, where he was questioned, how he got to Israel, and what kind of conections he has to the Israeli state. After being held for three days, he was released. He was subsequently summoned to the Interior and Interior Affairs Department again, where  he was questioned again about his ties with Israel. And this time he was released. In early June 2016, Al Kurdi realized that the Rafah border r between the Gaza Strip and Egypt was open and decided to leave. Arrivied in Bulgaria he learned that his father had received a written message from the Interior Ministry of the Palestinian Authority that his son Mohamed Al Kurdi was wanted by Gaza's internal security because he was accused of communication and co-operation with the Israeli. The announcement states that Al Kurdi's father should bring his son to be punished for his actions, and if he is not surrendered, he will be sentenced to imprisonment by a double conviction.

  State Agency for Refugees rejected his application due to lake of evidence that his life was threatened and the current situation in his country of origin does not fall within the scope of the Art. 15c of QD. The decision of the state authority was appealed before SCAC. 

 

Type of enforcement
  • Administrative judicial enforcement
Measures, actions, remedies claimed/applied

The court annulled the SAR's decision insofar as it refused to grant subsidiary protection and returned the case for a new ruling on the application with an indication of granting such protection.

 

Reasoning (legal principles applied)

The Court considered the gathered evidence and gathered new evidences from public sources of information on the situation in the country of origin of the asylum-seeker in regard with Art. 8 of QD. According to the SAR there were no condition for granting of refugee status: the contestant has not proved that in case of return to Gaza Strip he will be prosecuted because of his race, religion, nationality, belonging to a particular social group, or political opinion or conviction. That’s why the litigation in this part was dismissed. 

On the other hand the Court  found that, when discussing the grounds for granting humanitarian status, the administrative authority has acted formally and in a non-exhaustive manner. 

According to the report of Amnesty International, published on the website of EASO, in response to the appalling news that three men convicted of collaborating with Israel were hanged today by the Hamas de facto administration in the Gaza Strip, Amnesty International’s Deputy Director for the Middle East and North Africa, Magdalena Mughrabi said: “Today’s executions by the Hamas authorities in Gaza represent a bitter blow for human rights. The death penalty is a cruel, inhuman and degrading punishment. Its use is deplorable in any circumstances but the fact that these three civilian men were condemned to death after being convicted in unfair proceedings in military courts makes their executions all the more outrageous. “No one should be deprived of the right to life no matter what crime they are accused of. Hamas must halt all executions immediately, abolish the death penalty and stop trying civilians in military courts.”. 

On 11 of April on the website of EASO the following message was published: Mohammed Fathi Mohammed Othman, Yousef Mohammed Abu Shamleh and Ahmad Helmi Abdel Qader Sharab were executed on 31 May 2016 by the Hamas de facto administration in the Gaza Strip; the executions were carried out without the ratification of the death sentences by the Palestinian President, contrary to the Palestinian Basic Law of 2003 and the 2001 Penal Procedure Law. Amnesty International recorded 21 death sentences, all in the Gaza Strip. There were 12 death sentences issued by military courts and nine by civilian courts. At least 21 people were under sentence of death at the end of 2016.

Further the court has found out more evidences about the situation in the Gaza Strip. According to the annual report of the United Nations High Commissioner for Human Rights on the human rights situation in the Occupied Palestinian Territories, OHCHR has consistently received and documented reliable allegations of torture and ill-treatment of Palestinian detainees in the West Bank and in Gaza, including cases that led to death. In the West Bank, political opponents and activists, including students perceived to be linked to Hamas and Islamic Jihad, appear to be particularly targeted by the Palestinian Authority. In Gaza, the ruling authorities and armed groups have reportedly resorted to such practices. Credible investigations into allegations are rare. Since 2014, detention of Palestinians has significantly increased, with no prospect of charge or trial. As of 31 October 2016, 720 Palestinians were reported to be held in Israeli administrative detention, after their number had peaked at 750 earlier in 2016 – the highest number since early 2008. Some administrative detainees have resorted to hunger strikes to protest their detention. In July 2015, the Israeli Prisons Act was amended, allowing judges to authorize force-feeding of a detainee on hunger strike. Force-feeding was qualified by human rights experts as tantamount to cruel, inhuman or degrading treatment, and a violation of the rights to health. 

OHCHR has also documented a growing use of administrative detention by Palestinian security forces, in some cases on the basis of orders issued by provincial Governors, or simply to justify delays in bringing the accused before a judge. In Gaza, the authorities have been resorting to arbitrary detention against perceived political opponents, including members of Fatah and former personnel of the Palestinian Authority, with cases of incommunicado detention reported, including by armed groups.

In its judgment the Court has taken into account the "report" dated 11.06.2016, obtained by the father of AAl Kurdi, which was рresented during the administrative procedure and according to which the asylum seeker was accused of communicating and cooperating with the Israeli enemy. For the unexplained reasons, this undisputed document was not discussed in the contested decision of SAR.

Considering the collected written evidence the Court found that the returning of the asylum-seeker to his country of origin will be in contradiction with the main basis of refugee protection, the principle of "non-refoulement" of the Geneva Convention of 1951, which is the Specialized Convention on the Rights of Refugees. 

The Court decided  that on his return to Gaza, Al Kurdi could be arbitrarily arrested, tortured, or exposed to an inhuman or degrading treatment or punishment, to which detainees in Gaza, and especially those suspected of ties with Israel, are often subjected. It is not excluded that, in the presence of an unfair trial conducted by a military court, the challenger could be sentenced to death and executed, as demonstrated by the gathered evidences.

The Court pointed out that Art. 18 of the EU Charter of Fundamental Rights guarantees the right to asylum, which includes the respect of the principle of "non-refoulement".  Article 19 of the Charter states that no one may be forcibly removed, expelled or extradited to a country where he or she may be sentenced to death, be subjected to torture or other inhuman or degrading treatment or punishment. The Motive of the Charter states that Art. 19, para. 2 will incorporate relevant ECtHR case-law on the application of Article 3 of the ECHR. Pursuant to Art. 2 and Art. 3 of the ECHR, an absolute ban shall be imposed on any return of a person who is facing a genuine risk of misconduct contrary to those provisions. This protection is different from protection against persecution for one of the reasons set out in the Geneva Convention of 1951.

 

Role of the Charter and role of the general principles on enforcement

Relation to scope of the Charter

Article 18 CFREU guarantees the right to asylum, which includes the respect of the principle of non-refoulement. Article 19 CFREU states that no one can be forcibly removed, expelled or extradited to a country where he can be sentenced to death, be subjected to torture or other inhuman or degrading treatment or punishment.

The Motive of the Charter states that Art. 19, para. 2 will incorporate relevant ECtHR case-law on the application of Article 3 of the ECHR. Pursuant to Art. 2 and Art. 3 of the ECHR, an absolute ban shall be imposed on any return of a person who is facing a genuine risk of misconduct contrary to those provisions. This protection is different from protection against persecution for one of the reasons set out in the Geneva Convention of 1951.

The Court decided that on his return to Gaza, Al Kurdi could be arbitrarily arrested, tortured, or inhuman or degrading, to which detainees in Gaza, and especially those suspected of ties with Israel, are often subjected. It is not excluded that, in the presence of an unfair trial conducted by a military court, the challenger could be sentenced to death and executed, as demonstrated by the gathered evidences.