Information Note on the Court’s case-law No. 123
October 2009
Panjeheighalehei v. Denmark (dec.) - 11230/07
Decision 13.10.2009 [Section V]
Article 6
Civil proceedings
Article 6-1
Civil rights and obligations
Inapplicability of Article 6 to action in damages by asylum-seeker for refusal to grant him asylum: inadmissible
Facts – The applicant was an Iranian national. In July 1997 he travelled with his mother and sister to Denmark, where his mother applied for asylum for the family on the grounds that she had been an active member of an organisation that opposed the government. She also alleged that two years previously the applicant, then aged fourteen, had been detained and subjected to torture after taking part in a demonstration with her. The authorities refused to grant asylum because of doubts about the mother’s credibility and her appeal was dismissed after the Refugee Board found her accounts of the alleged events to be unreliable and divergent. On attaining his majority in 1999, the applicant asked for the asylum proceedings to be re-opened, notably on the grounds that he was wanted in Iran for being politically active and his two-year absence from the country would be viewed with suspicion. The Refugee Board refused his request in the absence of significant new information and the applicant was deported. In 2003 the applicant re-entered Denmark and again applied for asylum, this time on the grounds that on his return to Iran he had been detained and subjected to torture for almost two years. His request was granted in 2004 and he then sued the Refugee Board for damages for the pain and suffering he alleged he had suffered as a result of its refusal to grant him asylum in 1999. His claim was ultimately dismissed by the Supreme Court on the grounds that a claim for compensation necessarily entailed a review limited to the legality of the Refugee Board’s decision and that the applicant’s objections to the Board’s decisions amounted in reality to a disagreement with its assessment of the evidence and its conclusive decision as to whether the facts of the case could justify asylum.
In his application to the European Court, the applicant complained that the Refugee Board’s decision to deport him in 1999 had violated Article 3 of the Convention and that he had been denied access to court in respect of his claim for compensation, in breach of Article 6 § 1.
Law – Article 6 § 1: The Court reiterated that decisions regarding the entry, stay and deportation of aliens were not within the scope of Article 6 § 1. It accepted, however, that when he brought his action against the Refugee Board the applicant was no longer an asylum-seeker and that the compensation proceedings as such were not decisive for his entry, stay or deportation. It also noted that his action for compensation had been formulated as an ordinary tort action, rather than an appeal in the context of asylum proceedings. Nevertheless, his main arguments in the compensation proceedings had been that the Refugee Board’s decisions had been inadequate. The Court agreed with the Supreme Court’s analysis that, notwithstanding the additional financial element it raised, the applicant’s compensation claim had amounted primarily and substantially to a challenge to the merits of the Refugee Board’s decisions. Accordingly, although the subject matter of the applicant’s action was also pecuniary, the proceedings had been so closely connected to the subject matter of the Refugee Board’s decisions in 1999 as to be indistinguishable from the proceedings determining “decisions regarding the entry, stay and deportation of aliens”.
Conclusion: inadmissible (incompatible ratione materiae).
Article 3: The applicant’s application for asylum in 1999 had been based on his alleged arrest and torture as a consequence of his participation in the demonstration in 1995. He had not specified any other political activities in which he might have engaged, or claimed to have encountered any concrete difficulties with the Iranian authorities in the period between his release in 1995 and his entry into Denmark in July 1997. That understanding was consistent with his mother’s explanation that the last contact the Iranian authorities had had with the family had been about a month after the demonstration. It was also relevant that the mother had been provided with a valid passport and 90-day visa and had had no problems with the authorities when leaving Iran with her two children. The applicant had thus failed to establish that at the time of his deportation in 1999 there had been substantial and concrete grounds for believing that he would be exposed to a real risk of torture or inhuman or degrading treatment or punishment on his return to Iran. While it was true that the applicant had in fact been subjected to ill-treatment following his return, there had been no special distinguishing features in 1999 that could or ought to have enabled the Refugee Board to foresee such treatment.
Conclusion: inadmissible (manifestly ill-founded).
© Council of Europe/European Court of Human Rights
This summary by the Registry does not bind the Court.
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