Individuals with links to terrorist organizations are protected by the ECHR when their lives are at risk of deportation.
M.A. and others v. Bulgaria 20.02.2020 (no. 5115/18)
The applicants belong to a Uighur minority, Muslims of Chinese nationality, residing in China. In their country of origin, they faced persecution because of their political and religious beliefs. As a result, they entered Turkey through Bulgaria, where they applied for asylum. The domestic authorities dismissed their appeals because they considered that they posed a threat to public order and security because of their affiliation with a terrorist organization.
The Court took note of reports from Amnesty International, the Human Rights Watch and the United States Department of State, which reported cases of torture and even executions of civilians belonging to the Uighur minority.
The ECtHR therefore held that the applicants could not return safely to their country of origin, where there were reasonable grounds to believe that they would be subjected to arbitrary detention and mistreatment, and in fact risk death. Violation of Articles 2 and 3 of the Convention. It imposed a temporary non-refoulement.
The applicants, Mr M.A., Mr. A.N., Mr Y.M., Mr S.H., and Mr A.A., are Chinese nationals who were
born in 1983, 1994, 1991, 1994, and 1989 respectively. They are Uighur Muslims from the Xinjiang
Uighur Autonomous Region in China.
The case concerned their intended expulsion on national security grounds to China, where they
would allegedly be at risk of death or ill-treatment.
All the applicants arrived in Bulgaria in July 2017 from Turkey, where they had been living since
leaving China on various dates between 2013 and 2015. The applicants subsequently applied for
asylum but the State Refugees Agency rejected their applications in December 2017, decisions which
the Haskovo Administrative Court upheld in January 2018.
The court found that the applicants had not shown that they had been persecuted in their country of
origin, within the meaning of the Asylum and Refugees Act, or that they were at risk of any such
persecution. The applicants had also made assumptions on the risk they faced, based on
widely-known facts about the situation in the region they were from. It had not been shown that any
problems the applicants had had with the authorities before leaving China had been due to their
ethnicity or religion.
In parallel, the head of the State Agency for National Security in January 2018 ordered the
applicants’ expulsion on national security grounds. Applications by them for judicial review of that
decision were dismissed by the Supreme Administrative Court in May 2019. In decisions made
available by the Government on the second, third and fourth applicants, the Supreme Administrative
Court concluded that the State Agency for National Security had convincingly shown that they could
pose a threat to Bulgaria’s national security owing to, among other things, links with the East
Turkistan Islamic Movement (ETIM), which was considered to be a terrorist group.
The World Uighur Congress, the International Uighur Human Rights and Democracy Foundation,
Amnesty International and several members of the European Parliament have asked Bulgaria not to
remove the applicants. In January 2018 the Court indicated to the Bulgarian Government that the
applicants should not be removed while the proceedings before the Court were ongoing.
Relying in particular on Article 2 (right to life) and Article 3 (prohibition of torture and of inhuman or
degrading treatment) the applicants complained that if returned to China they would face
persecution, ill-treatment and arbitrary detention and could even be executed.
THE DECISION OF THE COURT…
As in earlier similar cases, the Court finds that the issues raised by the applicants under Articles 2 and 3 of the Convention are indissociable. It will therefore examine them together.
The general principles under Article 3 of the Convention concerning removal of aliens, including the assessment of the existence of a real risk and the distribution of the burden of proof, have been summarised in J.K. and Others v. Sweden .
The Court must point out at the outset that it is acutely conscious of the difficulties faced by States in protecting their populations from terrorist violence, which constitutes, in itself, a grave threat to human rights. Faced with such a threat, the Court considers it legitimate for Contracting States to take a firm stand against those who contribute to terrorist acts, which it cannot condone in any circumstances . However, even where, as in this case, a person is alleged to have connections with terrorist organisations, the Convention prohibits in absolute terms torture or inhuman or degrading treatment or punishment . Thus, whenever substantial grounds have been shown for believing that an individual would face a real risk of being subjected to treatment contrary to Article 3 if removed to another State, the responsibility of the Contracting State to safeguard him or her against such treatment is engaged in the event of expulsion or extradition
The applicants’ allegations about the risk they would face were examined at the domestic level in the proceedings under the Asylum and Refugees Act. The domestic authorities – the State Refugees Agency and the Administrative Court – found that no such risk had been proven: the applicants had not shown that they had had to leave China due to persecution based on their ethnicity or religion; they had received education and had led normal lives but had breached the law; the Chinese authorities were taking anti-terrorist action in response to violence by Uighur separatists. However, in the subsequent proceedings which were directly relevant for the applicants’ refoulement the Supreme Administrative Court failed to examine their allegations that they faced a risk of ill-treatment in case of expulsion. In these circumstances, the Court is called upon to assess the situation in the receiving country and the risk faced by the applicants in the light of the requirements of Articles 2 and 3, taking into account all the material placed before it, including material obtained proprio motu .
The relevant information on the current situation in the XUAR shows that the Chinese authorities have proceeded with the detention of hundreds of thousands or even millions of Uighurs in “re‑education camps”, where instances of ill-treatment and torture of the detainees have been reported. According to the United States Department of State, some detainees have even been killed by security officials
It is significant in that regard that, according to the Bulgarian authorities, prior to arriving in Bulgaria, the applicants had undergone training for the East Turkistan Islamic Movement – which, according to the same authorities, is a separatist organisation active in Western China, and which is considered by the Chinese Government to be a terrorist organisation .
It is in addition reported that many Uighurs who have returned to China after having left it, or who were forcibly repatriated, have been detained in “re-education camps”, or otherwise faced the risk of imprisonment and mistreatment. The United Kingdom Home Office considered that Uighurs from the XUAR who could show that upon their return to China they would be forced into such a camp were “likely to be at risk of persecution and/or serious harm” (see paragraph 47 above). Furthermore, Human Rights Watch cited the example of an Islamic scholar who had been sentenced to ten-years’ imprisonment upon his return to the XUAR, and Amnesty International reported on a similar case of an Uighur woman imprisoned after a secret trial . In its December 2017 letter to the Bulgarian authorities, the latter organisation also stated that many Uighurs who had been forcibly returned to the XUAR had been “detained, reportedly tortured and in some cases sentenced to death and executed”. Amnesty International also reported on the case of six Uighurs who, having returned from Turkey, had been imprisoned on undefined charges. There were also reports of people who had returned to the XUAR and had disappeared, or had died after being placed in “re-education camps”.
In August 2018 the CERD, a United Nations body, also expressed concern as to the fate of Uighur students, refugees and asylum-seekers involuntarily returned to China, and urged the Chinese government to disclose those people’s location and status.
In view of the above, in light of the information about the general situation in the XUAR and the applicants’ individual circumstances the Court finds substantial grounds for believing that the applicants would be at real risk of arbitrary detention and imprisonment, as well as ill-treatment and even death, if they were removed to their country of origin.
The Court must thus examine whether any effective guarantees exist that protect the applicants against arbitrary refoulement by the Bulgarian authorities to China, be it direct or indirect (see M.S.S. v. Belgium and Greece [GC], no. 30696/09, § 286, ECHR 2011). 3
No destination country was indicated in the initial decisions for the applicants’ repatriation, which merely repeated the formula under the Aliens Act – “the country of origin, the transit country or a third country”.
Nor did the expulsion decisions against the applicants indicate a destination country . The Supreme Administrative Court considered that the determination of such a country and the assessment of any risk the applicants would face if returned to China,
The Court finds the above considerations on the implementation of the expulsion decisions equally valid in the case at hand, and notes that the Government have not provided any information that could lead it to a different conclusion.
There appear thus to be no effective guarantees, in the process of implementation of the repatriation or the expulsion decisions against the applicants, that they would not be removed to China. The Court has already found above that the applicants could not return safely to their country of origin, where there were substantial grounds to believe that they would be subjected to arbitrary detention and ill-treatment, and even risk death.
Accordingly, the Court concludes that, if implemented, the applicants’ removal to China, on the basis of the repatriation or the expulsion decisions against them issued by the Bulgarian authorities, would be in breach of Articles 2 and 3 of the Convention.
The applicants complained under Article 13, taken in conjunction with Articles 2 and 3 of the Convention, that the proceedings under the Asylum and Refugees Act had not represented an effective domestic remedy for their grievances.
However, having regard to the facts of the case, the submissions of the parties and its findings under Articles 2 and 3 of the Convention, the Court considers that it has examined the main legal questions raised in the present application and that there is no need to give a separate ruling on the remaining complaint