A European Court of Human Rights’ Systematization of Principles Applicable to Expulsion Cases

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Table of Contents: I. Introduction. – II. General principles and their application. – II.1. The assessment of the risk. – II.2. Principles of the benefit of the doubt and the burden of proof. – II.3. Targeted group and inability to protect. – III. Concluding remarks.

Abstract: The European Court of Human Rights has developed a large case-law regarding expulsion cases, of which cases linked to asylum applications constitute a significant number. This Insight analyses the case of J.K. et al. v. Sweden [GC] (judgment of 23 August 2016, no. 59166/12), which constitutes an attempt on the part of the Court to systematise the main principles and to clarify the procedure and elements to be taken into account by national authorities when deciding on expulsion cases, and therefore on asylum applications. The Court first enumerates and briefly analyses the applicable principles: the risk of ill-treatment by private groups, the principle of ex nunc evaluation of the circumstances, the principle of subsidiarity, the assessment of the existence of a real risk, distribution of the burden of proof, past ill-treatment as an indication of risk, membership of a targeted group. Second, the Court applies the principles to the case of J.K. et al. v. Sweden, but the interpretation and application of those principles is the object of dissenting opinions of seven judges, which are also taken into account in this Insight.

Keywords: asylum – expulsion – real risk – burden of proof – benefit of the doubt – ill-treatment. 

European Papers, Vol. 2, 2017, No 3, European Forum, Insight of 25 September 2017 pp. 977-984
2499-8249 - doi: 10.15166/2499-8249/161

* Associate Professor of Public International Law, University Pablo de Olavide, Seville, gferarr@upo.es.


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