Direct Provision Case Brief – Gelashvili vs. Ireland
Direct Provision Case Brief – Gelashvili vs. Ireland
Facts: Tamaz Gelashvili is a foreign national from Georgia. In 2016, Gelashvili went to the supermarket to buy some eggs and milk. On his way home, he witnessed an effeminate man being assaulted by a group of men. He recorded the incident on his iPhone and uploaded the footage to TikTok. The video went viral. Gelashvili soon learned the group of men were undercover police officers. Hours later, investigative police arrived at his door demanding Gelashvili turn over the footage. Gelashvili refused, as police officers did not display a warrant. The following month, Gelashvili received threatening phone calls from a variety of individuals calling him homophobic slurs. When Gelashvili reported the incident to the police, they laughed and did the same. A week later, Gelashvili was severely beaten on his way home.
In June 2016, Gelashvili filed asylum in the country of Ireland. The International Protection Accommodation Service transferred Gelashvili to the Baleseskin accommodation centre in August of 2016. In October, Gelashvili travelled back to Baleseskin from Dunne’s Supermarket and found a homophobic slur written boldly on his door. He reported the incident to management, who took no action. Days later, someone slid pornographic images of gay men under Gelashvili’s door, which implicated him in homosexuality. Other images included killings of homosexual men. Gelashvili found the images threatening. Gelashvili visited several asylum NGOs in Ireland and reported the incident. However, instead of investigating his concerns, they took no action.
Gelashvili vented to a Georgian man about his problem, one who never seemed to leave Balseskin. However, the older Georgian man accused Gelashvili of being homophobic. Gelashvili found this extremely odd. Through a confidential source, Gelashvili learned the older Georgian man was a diplomatic official behind each incident who had been sent to drive him back to Georgia.
Issue: Whether the treatment rises to the level of degrading treatment or punishment.
Rule: Article 3 of the Convention states “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”
Analysis of Direct Provision Case Brief – Gelashvili vs. Ireland
Gelashvili believes his experience in direct provision is part of Georgia’s interdiction effort to drive him back to Tbilisi. Countries within the EU, such as Ireland, often take interdiction efforts to drive asylum seekers back to their home country. The EU has been especially active in establishing shared interdiction arrangements with Eastern European states to combat “irregular” migration by the establishment or intensification of exit control.[1] Countries may also engage in interdiction from within the territory of a cooperating state.[2] Indeed, ejections are often carried out by non-state actors with the encouragement or toleration of authorities.[3] When Liberian and Sierra Leonean refugees fled to Guinea in late 2000, President Lansana Conté encouraged citizens to form militia groups to coerce refugees to “go home.”[4]
Nonetheless, any repatriation through coercive means is a breach of Art. 33 of the Refugee Convention. In MSS v. Belgium and Greece[5], the Belgian authorities engaged in coercive repatriation efforts to force the applicant back to Greece, where he lived in permanent fear of being attacked and robbed. He also submitted that his vulnerability and psychological deprivation in the State amounted to inhuman or degrading treatment or punishment,[6] and the ECtHR agreed.
Contracting Parties have an obligation under Article 1 of the Convention, to secure to everyone within their jurisdiction the rights and freedoms defined in the Convention. See Kasymakhunov v. Russia, where the ECtHR stated this obligation includes taking measures to ensure that individuals within their jurisdiction are not subjected to torture or inhuman or degrading treatment, including such ill treatment administered by private individuals.[7] In Kasymakhunov, the ECtHR held that the Russian authorities repatriation efforts violated its positive obligation to protect the applicant against the real and immediate risk of forcible transfer to Uzbekistan, including ill-treatment in the State.[8]
Conclusion: The ECtHR could find Ireland in violation of Article 3 of the Convention on account of its coerced repatriation efforts, and its failure to protect Gelashvili against a real and imminent risk of ill-treatment in Georgia.
References
[1] Hathaway, J.C. (2021). The Right to Enter and Remain in an Asylum State. The Rights of Refugees under International Law. Cambridge University Press. p. 320.
[2] Id., p. 321.
[3] Id., p. 325.
[4] Id.
[5] MSS v. Belgium and Greece, Dec. No. 30696/09 (ECtHR, Jan. 21, 2011), at paras. 238-239
[6] Id.
[7] Kasymakhunov v. Russia, Dec. No. 29604/12 (ECtHR, Nov. 14, 2013), at para. 134.
[8] Id., paras. 137-141.
