The applicant sought to re-open asylum proceedings, on the basis that a newspaper article had been submitted as evidence to substantiate the claim that violence between police and demonstrators had taken place in the camp. The applicant noted that the same article was used as evidence in the proceedings for M.A’s asylum claim. The Court dismissed the application on 27th October 2007 since it was noted that news articles could easily be bought in Togo and that a “verification report” could not give an answer as to its legitimacy (para. 21). It was also held that the article was not enough to outweigh the inconsistencies in the applicant’s argument.
Summary of holding
On 10th May 2012, the ECtHR delivered a unanimous declaration stating that the complaint concerning Art. 3 was inadmissible, holding that the applicant’s expulsion to Togo would not be a violation of Art. 3.
Whilst the ECtHR reiterated the obligation of Contracting States to protect individuals from deportation which would place them at risk of treatment contrary to Article 3 (Soering v. the United Kingdom), it was noted that Contracting States retained the right to control the entry and expulsion of aliens (Hilal v. the United Kingdom) and that there was no obligation to give political asylum (Vilvarajah and Others v. the United Kingdom). The ECtHR stressed that to have an indication whether an expulsion to Togo would result in a violation of Art. 3, an ex nunc (from now on) assessment of the situation in the country would have to be carried out, with the historical situation offering little more than some help towards understanding the present conditions (Salah Sheekh v. the Netherlands).
In applying the above to the case at hand, the ECtHR first dealt with the argument relating to M.A’s asylum proceedings. The ECtHR reiterated that the task was to evaluate the situation in Togo during the time of the present proceedings, and not to view the situation retrospectively.
With regard to the claim that members of the UFC were at risk in Togo, the ECtHR pointed out that since the presidential elections of 2010, members of the UFC had been nominated into the cabinet and were working with the RPT (the political party in power). The peaceful presidential elections of 2010 led the ECtHR to decide that, if there was a threat made by the soldiers in the camp for flood victims, there was no indication that there was real and individual risk of persecution for the applicant. As a result of the evidence at hand, the Court concluded that an expulsion to Togo would not violate the applicant’s rights under Art. 3.
Since the applicant had also complained of a lack of an effective remedy, relying on Art. 13 ECHR (the right to an effective judicial remedy for violations of rights), the ECtHR considered the prior proceedings with scrutiny. It was held that the applicant had sufficient remedies available to him in relation to his claims, having had the Asylum Court and the Constitutional Court conduct thorough assessments of his claims under Art. 3.
Potential takeaways for future climate migration litigation
- Unsubstantiated data protection concerns. It is worth noting, as the ECtHR did, that the Austrian government did not provide the court with information surrounding the “verification report” of the newspaper article that had been submitted as evidence, citing “data protection” reasons. There is no obvious reason as to why there would be data protection concerns surrounding the verification of a public news article, leading one to believe that Austria was not fulfilling its obligation under Art. 34 ECHR to give all necessary assistance to the Court.
- Allies of climate migrants. The applicant organised demonstrations for flood victims, protesting the distribution of relief items solely to those with loyalty to the Government and its political party. It was then that he was allegedly subjected to violence and threatened by the authorities. This is important when considering the protection of advocates for climate migrant rights, since in countries where human rights are often violated by authorities, it is those advocating for a better quality of life who are naturally placed at a greater risk (cf. Kawas-Fernández v. Honduras). However, given the lack of evidence accompanying the application at hand, this point was not discussed by the Court.