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Country of Decision : France
Court Name : FR: Council of State [Conseil d'État]
Date of decision : 03/10/2018
Type : Judgment
ECLI : ECLI:FR:CECHR:2018:406222.20181003
Case Number/Citation/ Document Symbol : No. 406222

M.B and A. vs OFPRA (Office Français de Protection des Réfugiés et Apatrides)

As per CNDA press release: When the ECtHR concludes that there is a real risk of inhuman or degrading treatment if returned to the country of origin, the CNDA is obliged not only to consider as admissible a request for review by the person concerned but also to grant him at least the benefit of subsidiary protection within the meaning of Article L. 712-1 (b) of the CESEDA.   By this decision, the Conseil d'Etat applies its Vernes case-law, in which it acknowledged the obligation of full execution of the judgments of the European Court of Human Rights (CE 30 of July of 2014, M.V. no. 358564 A), and considers that, in particular with regard to the Article 46 of the EDH Convention the CNDA can not assess the facts alleged by an asylum seeker who is different from that of the European Court.   In the present case, the Court of Cassation considers that if the CNDA could, without making any error of law, find that, as regards the scope of application of the Geneva Convention, it was not bound by a final judgment of the ECtHR condemning the French authorities for a deportation measure in a country where the asylum seeker was at risk of inhuman or degrading treatment, it made such an error by rejecting the application for subsidiary protection. On the contrary, there was an obligation on the court to hold the risk of torture or inhuman or degrading punishment or treatment recognized by the ECtHR as serious and proven without having to rule again on the facts.   The Council of State specifies however that a rejection of the application for subsidiary protection would be possible if it were justified by new circumstances or the application of an exclusion clause. As regards the new circumstances, the public rapporteur stated in his conclusions that only a change in the situation in the country of origin which would remove the risk identified by the ECtHR could justify a rejection, in this respect the European Court fell.

Assessment of Application; Subsequent Application;

European Convention on Human Rights;

EASO Annual Report on the Situation of Asylum in the EU

France,FR: Council of State [Conseil d'État], M.B and A. vs OFPRA (Office Français de Protection des Réfugiés et Apatrides), 03/10/2018, ECLI:FR:CECHR:2018:406222.20181003
FR: Council of State ruled that a final judgment by the ECtHR finding that a removal measure to the country of origin would constitute a violation of Article 3 ECHR constitutes new evidence, warranting admissibility of the subsequent application.