In the
case
of
D.N.W.
v. Sweden,
The European
Court
of Human Rights (
Fifth
Section), sitting as
a
Chamber
composed
of:
Mark Villiger, President,
Boštjan M. Zupančič,
Ann Power-
Forde,
Angelika Nußberger,
André Potocki,
Paul Lemmens,
Helena Jäderblom, judges,
and
Claudia
Westerdiek
class=JuJudgesChar>,
Section Registrar,
Having
deliberated
in private on 6 November 2012,
Delivers the
following
judgment,
which
was
adopted on that
date:
PROCEDURE
The
case
originated in an application (no.
29946/10) against the Kingdom of Sweden lodged
with
the
Court
under Article 34
of the
Convention
for
the Protection of Human Rights and
Fundamental
Freedoms
(“the
Convention”)
by an Ethiopian national, Mr
D.N.W.
(“the applicant”), on 25
May 2010. The President of the Section acceded to the applicant’s request not
to have his name
disclosed
(Rule 47 § 3 of the Rules of
Court).
The applicant
was
represented by Ms M.
Fager
Hohenthal, a lawyer practising in Enköping. The Swedish Government (“the
Government”)
were
represented by their Agent, Mr A. Rönquist, of the Ministry
for
Foreign
Affairs.
The applicant alleged that his
deportation
to Ethiopia
would
entail the risk of being killed, in violation of Article 2 of the
Convention,
or of being subjected to treatment in breach of Article 3.
On 3 June 2010 the President of the Third Section
decided
to apply Rule 39, indicating to the Government that it
was
desirable
in
the interests of the parties and the proper
conduct
of the proceedings that the
applicant should not be
deported
to Ethiopia until
further
notice.
On 9 November 2010 the application
was
communicated
to the Government. It
was
also
decided
to rule on the
admissibility and merits of the application at the same time (Article 29 § 1).
On 1
February
2011 the
Court
changed
the
composition
of its Sections (Rule 25 § 1) and the present application
was
assigned to the newly
composed
Fifth
Section.
THE
FACTS
I. THE
CIRCUMSTANCES
OF
THE
CASE
The applicant
was
born in 1978.
The applicant appears to have arrived in Sweden in the summer of 2007. He applied
for
asylum and submitted that in his home
country
he had been a
deacon
in the Orthodox
Coptic
church.
In 2005 he had been
called
upon to be an observer in the national elections. Serving in this
capacity,
he had
witnessed
many
wrongdoings
by officials. The personal integrity and
freedom
of
election of voters had been violated.
Due
to this, the applicant had refused to
sign a statement asserting that the election procedure had been
carried
out
correctly.
Subsequently he had received several
death
threats. In
connection
with
a sermon on 12 June 2005 he had been severely beaten outside the
church
by
two unknown men. He had lost a tooth and had been
cut
on the hand. In September
2005 he had attended a traditional
Christian
feast.
There he had been pursued
and arrested by two policemen
who
had taken him to a police station in Addis Ababa. He had been accused of activities against the regime and had been incarcerated
for
three months and eleven
days,
during
which
time he had been tortured. On 20
January 2006, after being released, he had participated in a
demonstration
against the election results. He had again been taken into
custody
by two unknown
men and taken to the Kaliti prison in Addis Ababa. There, he had been kept
without
criminal
charges
or a trial and had been tortured through violence
with
fists
and truncheons,
cut
with
sharp objects,
chained
and blind-
folded,
forced
to hear other inmates being tortured,
forced
to
crawl
on his knees on sharp
rocks and have his head shaved
with
broken bottle glass. The
detention
had lasted
for
five
months.
During
his time in the prison, he had preached to his
fellow
inmates. He had told his story to one of the military prison guards,
who
had then
helped him to escape. He had hidden
from
the authorities by travelling between
Christian
holy places
where
he had preached. A group of pilgrims had helped him
and had paid him to travel
with
them and preach to them. On 8 May 2007, the
pilgrims had informed him that they had
decided
to help him
flee
the
country.
They had arranged
for
his travel to Kenya,
where
he had had to
wait
for
a
while.
A smuggler had then helped him to reach Sweden, via an unknown European
country.
On 27 October 2008 the Migration Board (Migrationsverket)
rejected the application. It stated that, although the applicant had not submitted
any identification papers, a language test had shown it probable that he
was
from
Ethiopia. It
further
stated that the general situation in Ethiopia
was
not a sufficient ground
for
asylum. Regarding the applicant’s situation and
individual reasons
for
asylum, the Board
found
that his story lacked
credibility
and that his submission about his escape
from
prison
was
not
plausible. Also, the applicant had never been
convicted
of any
crime,
nor had
he tried to
contact
the judicial authorities in Ethiopia regarding the violence
to
which
he had been subjected. He had not shown it probable that he
would
be
at risk if he returned to Ethiopia.
The applicant appealed to the Migration
Court
(Migrations-
domstolen)
in Stockholm. He maintained his earlier
submissions and added the
following.
He had been harassed in Ethiopia
due
to his
foreign
appearance, his mother being Eritrean. He also
claimed
that he had been
accused by the Government of being a spy. He submitted an arrest order issued
by the Ethiopian authorities on 27
February
2008 and stated that some members
of his
church
in Sweden had been visiting Ethiopia and the local police had
handed them the arrest order. He also submitted a medical
certificate
from
the
Trauma
Centre
at
Danderyd
Hospital (Kris- och traumacenter vid
Danderyds
Sjukhus)
containing
a psychiatric and physical evaluation as
well
as a
forensic
evaluation.
The psychiatric evaluation had been
carried
out
by
F.H.,
a licensed physician and specialist in general and
forensic
psychiatry,
and
was
based on a meeting
with
the applicant on 6 April 2009. The applicant had
claimed
to
worry
a lot, to have a
dark
outlook on life and to suffer
from
depression
and loss of appetite. He had had thoughts of being better off
dead,
but had not seemed to
consider
suicide as an option and had
claimed
to leave
himself in the hands of God. He had tried to
cure
his
depression
with
holy
water
and by staying in a monastery.
During
the examination the applicant had
been very
formal
and had given
clear
and
distinct
answers to all the questions.
However, he had given an emotionally
detached
impression and had seemed to have
an intellectual and
distant
attitude towards the story he told. There had been
no signs of psychosis. He had seemed rigid in his personality and had had
difficulties
in adjusting his mind-set and the topics
discussed
to the limited
time of the examination. The risk of suicide had been hard to assess. The applicant
had expressed a
clear
will
to
die,
but had seemed to have religious
doubts
about
actually
committing
suicide and
would
therefore
deny
any such plans. The
assessment
was
that he
was
probably suffering
from
Post-Traumatic Stress
Disorder
(PTSD) and that his
depression
was
a result of this.
The
forensic
evaluation
was
issued by E.E.,
associate professor and specialist in
forensic
medicine, on 17 April 2009. According
to the
forensic
findings
the applicant had scar tissue on his head, right arm,
both legs and also an artificial tooth. The
concluding
assessment
was
that none
of the
findings
contradicted
that the applicant’s injuries had occurred at the
time he
described.
Furthermore,
the injuries
were
visibly
compatible
with
his
story and
could
support his
claims
that he had been subjected to torture in the
way
he had submitted.
On 17
December
2009 the Migration
Court
rejected
the appeal. It noted that the applicant had not proved his identity. Moreover,
it stated that the arrest order submitted by the applicant
was
very simplistic
in nature and hence had little evidential value. Regarding the medical
certificate,
the
court
found
that it
confirmed
that the applicant
was
suffering
from
PTSD and that he had scars, but that it
could
not
confirm
how his injuries
had occurred. The
court
further
stated that the applicant’s submissions had
been vague and had escalated
during
the proceedings. The applicant had submitted
for
the
first
time at the oral hearing, among other things, that he had been
suspected of being a spy. Moreover, it
found
peculiar his explanations as to
how he had escaped
from
prison and how he had received information on being
wanted
by the Ethiopian authorities. The
court
thus
found
that the
credibility
of the applicant’s submissions
was
weak.
It also added that the incidents
described
by the applicant had happened several years earlier, that he had not
been politically active and that he had not had any problems prior to the 2005
elections. Moreover the
court
stated that the political situation in Ethiopia had
calmed
down
since then and that the applicant’s submissions
did
not substantiate
that he
would
risk being subjected to persecution to such an extent that he
should be perceived as a refugee. Nor
did
they substantiate that he
would
be at
risk of being subjected to
degrading
or inhuman treatment if he
were
to return.
He
was
therefore not
considered
to have other needs
for
protection.
On 17 March 2010 the Migration
Court
of Appeal (Migrations-överdomstolen)
refused leave to appeal.
The applicant subsequently
claimed
that there
were
impediments to his
deportation
and requested that his application
for
a
residence permit be examined anew. In support of his
claim
he mainly referred
to his previous submissions but also stated that the general situation in Ethiopia
was
such that he
feared,
due
to his background as a
critic
of the regime, that he
would
be subjected to
further
ill-treatment upon return. The applicant
further
stated that the general situation in the
country
had become more serious after
the elections of May 2010.
In its
decision
of 1 March 2011, the Migration
Board
found
that the applicant’s submissions
did
not qualify as impediments to
deportation
nor reasons to examine his asylum application anew. The applicant
did
not appeal against this
decision.
II. RELEVANT
DOMESTIC
LAW
The basic provisions applicable in the present
case,
concerning
the right of aliens to enter and to remain in Sweden, are laid
down
in the 2005 Aliens Act (Utlänningslagen, 2005:716 - hereafter
referred to as “the 2005 Act”).
An alien
who
is
considered
to be a refugee or
otherwise in need of protection is,
with
certain
exceptions, entitled to a
residence permit in Sweden (
Chapter
5, section 1 of the 2005 Act). The term
“refugee” refers to an alien
who
is outside the
country
of his or her
nationality owing to a
well-founded
fear
of being persecuted on grounds
of race, nationality, religious or political beliefs, or on grounds of gender,
sexual orientation or other membership of a particular social group and
who
is
unable or, owing to such
fear,
is unwilling to avail himself or herself of the
protection of that
country
(
Chapter
4, section 1). This applies irrespective of
whether
the persecution is at the hands of the authorities of the
country
or if
those authorities
cannot
be expected to offer protection against persecution by
private individuals. By “an alien otherwise in need of protection” is meant, inter
alia, a person
who
has left the
country
of his or her nationality because
of a
well-founded
fear
of being sentenced to
death
or receiving
corporal
punishment, or of being subjected to torture or other inhuman or
degrading
treatment
or punishment (
Chapter
4, section 2).
Moreover, if a residence permit
cannot
be
granted on the above grounds, such a permit may be issued to an alien if, after
an overall assessment of his or her situation, there are such particularly
distressing
circumstances
(synnerligen ömmande omständigheter) to allow him or her
to remain in Sweden (
Chapter
5, section 6). Special
consideration
should be
given, inter alia, to the alien’s health status. According to the
preparatory
works
(Government Bill 2004/05:170, pp. 190-191), life-threatening
physical or mental illness
for
which
no treatment
can
be given in the alien’s
home
country
could
constitute
a reason
for
the grant of a residence permit.
As regards the enforcement of a
deportation
or
expulsion order, account has to be taken of the risk of
capital
punishment or
torture and other inhuman or
degrading
treatment or punishment. According to a
special provision on impediments to enforcement, an alien must not be sent to a
country
where
there are reasonable grounds
for
believing that he or she
would
be in
danger
of suffering
capital
or
corporal
punishment or of being subjected
to torture or other inhuman or
degrading
treatment or punishment (
Chapter
12,
section 1). In addition, an alien must not, in principle, be sent to a
country
where
he or she risks persecution (
Chapter
12, section 2).
Under
certain
conditions,
an alien may be
granted a residence permit even if a
deportation
or expulsion order has gained
legal
force.
This is the
case
where
new
circumstances
have emerged
which
indicate that there are reasonable grounds
for
believing, inter alia,
that an enforcement
would
put the alien in
danger
of being subjected to
capital
or
corporal
punishment, torture or other inhuman or
degrading
treatment or
punishment or there are medical or other special reasons
why
the order should
not be enforced (
Chapter
12, section 18). If a residence permit
cannot
be
granted under these
criteria,
the Migration Board may instead
decide
to
re-examine the matter. Such a re-examination shall be
carried
out
where
it may
be assumed, on the basis of new
circumstances
invoked by the alien, that there
are lasting impediments to enforcement of the nature referred to in
Chapter
12,
sections 1 and 2, and these
circumstances
could
not have been invoked
previously or the alien shows that he or she has a valid excuse
for
not having
done
so. Should the applicable
conditions
not have been met, the Migration
Board shall
decide
not to grant a re-examination (
Chapter
12, section 19).
Under the 2005 Act, matters
concerning
the right
of aliens to enter and remain in Sweden are
dealt
with
by three instances: the
Migration Board, the Migration
Court
and the Migration
Court
of Appeal (
Chapter
14, section 3, and
Chapter
16, section 9).
THE LAW
I. ALLEGED VIOLATION OF
ARTICLES 2 AND 3 OF THE
CONVENTION
The applicant
complained
that, if
deported
to Ethiopia, he
would
risk imprisonment, torture and
death.
He relied on Articles 2 and 3 of
the
Convention,
which
read as
follows:
Article 2:
“1. Everyone’s right to life shall
be protected by law. No one shall be
deprived
of his life intentionally save in
the execution of a sentence of a
court
following
his
conviction
of a
crime
for
which
this penalty is provided by law.
...”
Article 3:
“No one shall be subjected to torture or
to inhuman or
degrading
treatment or punishment.”
The Government
contested
that argument.
A. Admissibility
The
Court
notes that the application is not
manifestly ill-
founded
within
the meaning of Article 35 § 3 (a) of the
Convention.
It
further
notes that it is not inadmissible on any other grounds.
It must therefore be
declared
admissible.
B. Merits
1. The submissions of the
parties
The applicant maintained the
claims
he had
presented in the Swedish proceedings. He had left Ethiopia illegally
which
was
why
he
did
not have any identification
documents
with
him. His psychological
health had been very poor after his arrival in Sweden and he had had
difficulties
talking about
what
had happened to him. He had submitted
documents
confirming
that he had been subjected to ill-treatment, he had physical
injuries
which
were
consistent
with
the torture to
which
he had been subjected
and an expert in medical psychology had
diagnosed
him as suffering
from
PTSD.
The applicant
further
pointed out that he had
submitted a
document
in support of his
claim
that he had been summoned by the
Ethiopian authorities to be questioned about his actions
during
the elections
in 2005. Moreover, Ethiopia
was
a
country
where
dissidents
were
imprisoned and
detained
without
a trial.
The Government submitted that having regard to,
among other things, the medical evidence submitted by the applicant, he might
have been subjected to treatment
contrary
to Article 3 of the
Convention.
The
relevant question
was,
however,
whether
it had been substantiated that he
would
be at a real risk of being subjected to such treatment upon return.
The Government referred to the alleged arrest
warrant
of 27
February
2008, submitted by the applicant, and stated that
its authenticity had been assessed
with
the assistance of the Swedish Embassy
in Addis Ababa. The method of assessment had been to
compare
the stamps on
the
document
with
stamps on official
documents
issued by the Ethiopian
authorities. The
comparison
had shown that stamps on the applicant’s
document
had
differed
significantly
from
the stamps on official
documents.
In
particular, the stamps on the applicant’s
document
had not been in ink nor in
the same blue
colour
as the other stamps, had not had edge marks, had had a
different
font
and had lacked other
distinctive
features
of official stamps.
The signature on the
document
had also
differed
in
form
from
the signatures on
the other
documents
used
for
comparison.
In the light of this, the Government
were
of the view that the
document
submitted by the applicant
was
not genuine
and the
fact
that he had submitted such a
document
weakened
his general
credibility.
The Government
further
submitted that,
irrespective of the authenticity of the
document,
there
was
reason to question
the applicant’s submissions regarding how he had obtained it. He had stated
that members of his
church
in Sweden,
who
had been in
contact
with
the police
in Ethiopia
when
visiting the
country,
had received the
document
and brought it
to the applicant. The Government submitted that this explanation appeared
improbable and had not been substantiated. Moreover, the alleged arrest
warrant
had been issued in
February
2008, a relatively long time after the applicant
had left the
country.
The applicant had not submitted any plausible explanation
as to
why
it had been issued so late. In the Government’s view, this reduced
the
credibility
of the applicant’s account even
further.
The Government also noted the
conclusions
of the
national authorities regarding the applicant’s low
credibility.
For
instance,
the Migration Board had
found
it unlikely that the applicant had managed to
escape
from
prison
with
the assistance of one of the prison guards. The Migration
Court
had stated that the applicant’s account had escalated
during
the
proceedings. At the oral hearing before the Migration
Court
he had
claimed
for
the
first
time that one of the reasons
for
which
he
feared
ill-treatment
upon return
was
that he
was
considered
to be a spy. The Government
found
it odd
that he had not mentioned this earlier since it
was
highly relevant to his
application
for
a residence permit.
Moreover, the Government submitted that the
applicant had been arrested and subjected to ill-treatment in
connection
with
the elections in 2005. He had never
claimed
to have been politically active in
any other
way
than by
working
as an observer
during
these elections. It
could
therefore be
concluded
that he had never held a prominent position
within
the
political opposition in Ethiopia. In the light of this, and the
fact
that he
had left his
country
in 2007, it appeared improbable that he
would
still be of
interest to the Ethiopian authorities even if his account of
why
he had left
the
country
was
considered
to be substantiated.
2. The
Court’s
assessment
The
Court
finds
that the issues under Articles 2
and 3 of the
Convention
are indissociable and it
will
therefore examine them
together.
The
Court
reiterates that
Contracting
States have
the right, as a matter of
well-established
international law and subject to
their treaty obligations, including the
Convention,
to
control
the entry,
residence and expulsion of aliens (see,
for
example, Üner
v. the Netherlands [GC], no. 46410/99, § 54, ECHR 2006-XII; Abdulaziz,
Cabales
and Balkandali v. the United Kingdom, judgment of 28
May 1985, Series A no. 94, p. 34, § 67; and Boujlifa
v.
France,
judgment of 21 October 1997, Reports
1997-VI, p. 2264, § 42). However, the expulsion of an alien by
a
Contracting
State may give rise to an issue under Article 3, and hence engage
the responsibility of that State under the
Convention,
where
substantial
grounds have been shown
for
believing that the person in question, if
deported,
would
face
a real risk of being subjected to treatment
contrary
to Article 3 in
the receiving
country.
In these
circumstances,
Article 3 implies the obligation
not to
deport
the person in question to that
country
(see, among other
authorities, Saadi v. Italy [GC], no. 37201/06, §§ 124-125, ECHR
2008-...).
The assessment of
whether
there are substantial
grounds
for
believing that the applicant
faces
such a real risk inevitably
requires that the
Court
assesses the
conditions
in the receiving
country
against the standards of Article 3 of the
Convention
(Mamatkulov
and Askarov v. Turkey [GC], nos. 46827/99 and 46951/99, § 67,
ECHR 2005-I). These standards imply that the ill-treatment the applicant
alleges he
will
face
if returned must attain a minimum level of severity if it
is to
fall
within
the scope of Article 3. The assessment of this is relative,
depending
on all the
circumstances
of the
case
(Hilal
v. the United Kingdom, no. 45276/99, § 60, ECHR 2001-II). Owing to
the absolute
character
of the right guaranteed, Article 3 of the
Convention
may
also apply
where
the
danger
emanates
from
persons or groups of persons
who
are
not public officials. However, it must be shown that the risk is real and that
the authorities of the receiving State are not able to obviate the risk by
providing appropriate protection (H.L.R.
v.
France,
judgment of 29 April 1997, Reports
1997-III, § 40).
The assessment of the existence of a real risk
must necessarily be a rigorous one (see Chahal
v. the United Kingdom, judgment of 15 November 1996, Reports
1996-V, § 96; and Saadi
v. Italy,
cited
above, § 128). It is in principle
for
the applicant
to adduce evidence
capable
of proving that there are substantial grounds
for
believing that, if the measure
complained
of
were
to be implemented, he
would
be exposed to a real risk of being subjected to treatment
contrary
to Article 3
(see N. v.
Finland,
no. 38885/02, § 167, 26 July 2005). In this respect,
the
Court
acknowledges that, owing to the special situation in
which
asylum
seekers often
find
themselves, it is
frequently
necessary to give them the
benefit of the
doubt
when
it
comes
to assessing the
credibility
of their
statements and the
documents
submitted in support thereof. However,
when
information is presented
which
gives strong reasons to question the veracity of
an asylum seeker’s submissions, the individual must provide a satisfactory
explanation
for
the alleged
discrepancies
(see, among other authorities,
Collins
and Akasiebie v. Sweden (
dec.),
no. 23944/05, 8 March 2007; and Hakizimana
v. Sweden (
dec.),
no. 37913/05, 27 March 2008).
The above principles apply also in regard to
Article 2 of the
Convention
(see,
for
example, Kaboulov v. Ukraine, no.
41015/04, § 99, 19 November 2009).
In
cases
concerning
the expulsion of asylum seekers, the
Court
does
not itself examine the actual asylum
applications or verify how the States honour their obligations under the Geneva
Convention
relating to the status of refugees. It must be satisfied, though, that
the assessment made by the authorities of the
Contracting
State is adequate and
sufficiently supported by
domestic
materials as
well
as by materials
originating
from
other reliable and objective sources such as,
for
instance,
other
contracting
or non-
contracting
states, agencies of the United
Nations and reputable non-governmental organisations (see N.A. v. the
United Kingdom, no. 25904/07, § 119, 17 July 2008).
Whilst
being aware of reports of serious human
rights violations in Ethiopia, the
Court
does
not
find
them to be of such a
nature as to show, on their own, that there
would
be a violation of the
Convention
if the applicant
were
to return to that
country.
The
Court
has to
establish
whether
the applicant’s personal situation is such that his return to
Ethiopia
would
contravene
the relevant provisions of the
Convention.
The
Court
first
notes that the applicant
was
heard
by both the Migration Board and the Migration
Court,
that his
claims
were
carefully
examined by these instances and that they
delivered
decisions
containing
extensive reasons
for
their
conclusions.
The
Court
further
notes that the applicant has
failed
to substantiate that the Ethiopian authorities
were
responsible
for
the
incident of 12 June 2005
when
he
was
attacked and beaten by two unknown men,
lost a tooth and
was
cut
on the hand. In the
Court’s
view, this incident
cannot
be viewed as anything other than an individual
criminal
act. It therefore
cannot
have any bearing on the assessment of
whether
the applicant
will
be at
risk of being ill-treated by the Ethiopian authorities upon return.
The
Court
does
not
find
reason to question that
the applicant may have been
detained
and subjected to ill-treatment in
connection
with
the elections of 2005,
first
from
September 2005
when
he
was
allegedly
detained
for
3 months and 11
days,
and
for
the second time
from
January 2006
when
he
claimed
to have been
detained
for
5 months. The
Court
notes, in
particular, the
findings
of the
forensic
evaluation (see § 12 above) according
to
which
the applicant’s injuries
were
visibly
compatible
with
his story and
could
support his
claims
that he had been subjected to torture in the
way
he
had submitted. However, the
Court
observes that it
cannot
be excluded that the
applicant may have obtained some of the injuries
during
the attack of 12 June
2005 (see the
findings
in § 41 above). Moreover, the
Court
finds,
in agreement
with
the Swedish authorities, that the main issue at hand is
whether
it has
been substantiated that the applicant
would
be at a real risk of being
subjected to such treatment upon return. In this regard, the
Court
notes that
the applicant appears to have been travelling around and preaching in public
for
almost a year after having escaped
from
prison and before leaving the
country
for
Sweden in the summer of 2007
without
the Ethiopian authorities
showing any adverse interest in him.
Moreover, the
Court
finds,
in agreement
with
the
Swedish authorities and referring to the authenticity assessment made by them,
that the alleged arrest
warrant
submitted by the applicant has very little
evidential value. The
Court
further
finds
that there are
credibility
issues
with
regard to how the applicant obtained the
document.
It
does
not appear
probable that the authorities
would
hand the
document
over to some members of
his
church
and the applicant has submitted no
documents
or particulars in
support of that
claim.
The
Court
finds
that there are
further
credibility
issues
with
regard to the applicant’s submissions.
For
instance, it
was
at the
oral hearing before the Migration
Court
that the applicant
first
submitted that
one of the reasons
why
he
feared
ill-treatment upon return
was
that he
was
considered
to be a spy. The
Court
finds
it remarkable that he
did
not mention
this earlier in the proceedings since, if it
were
true, it
would
be very
relevant to his asylum application.
Lastly, the
Court
notes that the applicant
does
not appear to have been politically active in Ethiopia, apart
from
working
as
an observer
during
the elections of 2005, that the incidents
described
by the
applicant took place in 2005 and 2006 and that he left the
country
in 2007. In the
light of this the
Court
considers,
in agreement
with
the Swedish Government,
that it is improbable that he
would
still be of interest to the Ethiopian
authorities upon return.
Having regard to the above, the
Court
must
conclude
that the applicant has
failed
to make it plausible that he
would
face
a real risk of being killed or subjected to ill-treatment upon return to Ethiopia.
Consequently,
his
deportation
to that
country
would
not involve a violation of
Article 2 or 3 of the
Convention.
II. RULE 39 OF THE RULES OF
COURT
The
Court
reiterates that, in accordance
with
Article 44 § 2 of the
Convention,
the present judgment
will
not become
final
until (a) the parties
declare
that they will
not request that the
case
be referred to the Grand
Chamber;
or (b) three months
after the
date
of the judgment, if reference of the
case
to the Grand
Chamber
has not been requested; or (
c)
the Panel of the Grand
Chamber
rejects any
request to refer under Article 43 of the
Convention.
It
considers
that the indication made to the
Government under Rule 39 of the Rules of
Court
must remain in
force
until
the present judgment becomes
final
or until the Panel of the Grand
Chamber
of
the
Court
accepts a request by one or both of the parties to refer the
case
to
the Grand
Chamber
under Article 43 of the
Convention
(see
F.H.
v. Sweden, no. 32621/06, § 107, 20 January 2009).
FOR THESE REASONS, THE
COURT
1. Declares the application admissible
unanimously;
2. Holds by
five
votes to two that the
applicant’s
deportation
to Ethiopia
would
not involve a violation of Articles 2
or 3 of the
Convention.
Done in English, and notified in
writing
on 6
December
2012,
pursuant to Rule 77 §§ 2 and 3 of the Rules of
Court.
Claudia
Westerdiek
Mark
Villiger
Registrar President
In accordance
with
Article 45 § 2 of the
Convention
and
Rule 74 § 2 of the Rules of
Court,
the
following
separate opinions are annexed
to this judgment:
(a) concurring opinion of Judge Lemmens;
(b) dissenting opinion of Judge Power-
Forde
joined by Judge Zupančič.
M.V.
C.W.
CONCURRING OPINION OF JUDGE LEMMENS
I agree
with
the
conclusion
of the majority of the
Court
that
the applicant’s
deportation
to Ethiopia
would
not involve a violation of
Articles 2 or 3 of the
Convention.
I
would
prefer, however, a somewhat
different
reasoning. It
seems to me that the reasons of the judgment
could
give the impression that the
Court
is examining itself
whether
or not the applicant’s account of his
personal situation is
credible
and such as to
warrant
the
conclusion
that he
would
face
a real risk upon his return to Ethiopia. Indeed, the paragraphs 41
to 44 of the judgment are all
written
from
the perspective of the
Court
(“the
Court
notes”, “the
Court
finds”,
“the
Court
does
not
find”,
“the
Court
observes”, ...), even if it is sometimes stated that the
Court
adopts these
positions “in agreement
with
the Swedish authorities”. I
do
not think that it
is the
Court’s
task to proceed
with
such an assessment
where
it appears -as in
this
case-
that the
competent
domestic
authorities heard the applicant,
examined his
claims
carefully,
and
delivered
decisions
containing
extensive
reasons
for
their
conclusions
(§ 40).
The
Court
could
refer more to the
findings
of the
domestic
authorities and take these
findings
as the starting point
for
its own
examination. The
domestic
authorities are in general best placed to assess
factual
issues
concerning
an asylum seeker’s personal history, since they have an
opportunity to see, hear and question the asylum seeker in person and to assess
directly
the information and
documents
submitted by him (see S.S. v. the
United Kingdom, no. 12096/10, § 77,
decision
of 24 January 2012). The
applicant’s
case
was
thoroughly examined by the
domestic
authorities and there
are no indications that the proceedings before these authorities lacked
effective guarantees to protect the applicant against arbitrary refoulement
or that they
were
otherwise
flawed
(
compare
A.A. and Others v. Sweden,
no. 14499/09, § 77, judgment of 28 June 2012; see also Husseini v.
Sweden, no. 10611/09, §§ 86-87, judgment of 13 October 2011; Samina
v. Sweden, no. 55463/09, §§ 54-55, judgment of 20 October 2011).
Taking the
findings
of the
domestic
authorities as the
starting point
does
not mean that the
Court
should simply endorse the
assessment made by them. In the given
circumstances
the
Court
would
still have
to examine
whether
the information presented to it
would
lead it to
depart
from
the
domestic
authorities’ assessment of the applicant’s personal situation
(see, e.g., R.
W.
and Others v. Sweden, no. 35745/11,
decision
of
10 April 2012; A.A. and Others v. Sweden, quoted above, § 77). That is,
however, not the
case,
as is
clear
from
the reasons
developed
in our judgment.
DISSENTING OPINION OF JUDGE POWER-
FORDE
JOINED BY JUDGE
ZUPANČIČ
This
case
raises an important question
concerning
the
additional
weight,
if any, to be accorded to evidence of past torture in this
Court’s
assessment
of any
future
risk that an applicant
will
suffer treatment that is prohibited
by Article 3 of the
Convention.
As a general principle, a respondent State’s
responsibility may be engaged
where
substantial grounds have been shown
for
believing that the person
concerned,
if
deported,
faces
a real risk to being
subjected to treatment
contrary
to Article 3. In such a
case,
Article 3 imposes
an obligation not to
deport
the person in question to that
country.
(see
Saadi v. Italy (
dec.)
GCno. 37201/06,
§ 125, ECHR 2008-... ). As such, the
Court’s
focus
in assessing such a risk is ‘
future’
orientated; but
does
the
fact
that an applicant has already been tortured in
the past have any bearing upon the
Court’s
assessment of a
future
risk if he or
she is
deported
to a third
country?
To my mind, it
does.
It
constitutes
a
factor
to
which
particular
weight
should be given and it leads to a reversal of
the general onus of proof in Article 3
claims
(R.
C.
v. Sweden, no. 41827/07, § 55, 9 March 2010).
The
Court
in R.
C.
v Sweden introduced an important
point of principle in its assessment of risk in respect of applicants
with
a
personal history of having been subjected to treatment that is prohibited in
absolute terms under Article 3 of the
Convention.
The applicant in R.
C.
was
an Iranian national
who
sought asylum in Sweden and
whose
application
was
assessed and refused at national level. The evidence
was
that he had, probably,
been tortured in the past in that his body bore scars
which
substantiated his
claim.
Being aware of reports of serious human rights violations in Iran, the
Court
did
not
find
them to be of such a nature as to show that, on their own,
there
would
be a violation of the
Convention
if the applicant
were
to be
returned thereto. However,
when
assessing his personal situation
which
included
a history of torture the
Court
articulated an important principle in stating:-
Having regard to
its
finding
that the applicant has
discharged
the burden of proving that he
has already been tortured, the
Court
considers
that the onus
rests
with
the State to
dispel
any
doubts
about the risk of his being
subjected again to treatment
contrary
to Article 3 in the event that his
expulsion proceeds. (§55) [Emphasis added]
The majority in the instant
case
has
departed
from
this
case
law. It
finds
no reason to question that the applicant may have been subjected
to ill-treatment in the past and notes, in particular, that the
forensic
evaluation of the applicant’s injuries
confirmed
that they
were
visibly
compatible
with
his story. However, instead of reversing the onus of proof at
this point by requiring the respondent State to ‘
dispel
any
doubts’
about the
risk of the applicant being subjected again to ill treatment, it reverts its
focus
to
comparatively
minor ‘
credibility’
issues and
concludes
that the onus remains
with
the applicant and that he has
failed
to make it plausible that he
would
face
a risk of ill treatment if
deported
to Ethiopia. In this regard, it
fails
to apply the
clearly
established principle of the reversal of the onus of proof
as articulated in R.
C.
v Sweden.
To my mind, this applicant has satisfied the objective and the
subjective tests under Article 3. Objectively, there are independent reports of
‘serious human rights violations in Ethiopia’,
a
fact
which
the majority acknowledges (§39). Subjectively, the applicant’s
account of severe beatings
with
fists
and truncheons, of
cuts
with
sharp
objects, of being enchained and blindfolded, of being
forced
to listen to
others being tortured, of being
forced
to
crawl
over sharp rocks and of having
his head shaved
with
broken glass-are
corroborated
in two respects.
Firstly,
he
bears “a rather large number of scars on
different
parts of the body”
which
are
consistent
with
the applicant’s statements and have been assessed as such by an
expert in
forensic
medicine (§12). Secondly, his presentation upon independent
assessment led to the
conclusion
that he has undergone trauma in the past and
that he now suffers
from
post-traumatic stress
disorder
and
depression
(§ 11).
This evidence, including the independent
forensic
evidence, has not been
contradicted
or rebutted by the Government. To expect of an applicant
who
has
already been tortured to prove that he
will
not be tortured again if
deported
is, to my mind, to take a step too
far.
The
case
law is
clear.
In such
circumstances,
the onus of proof shifts to the
deporting
State to adduce
convincing
evidence that such an individual
will
not be subjected, once again,
to such treatment.
In the light of the evidence in this
case,
the applicant has,
to my mind, ‘
discharged
the burden of proving that he has already been
tortured’ in the past.
Consequently,
I adopt the position of the
Court
in R.
C.
v Sweden and
consider
that ‘the onus rests
with
the State to
dispel
any
doubts
about the risk of being subjected again to treatment
contrary
to Article
3 in the event that his expulsion proceeds’ (R.
C.
v Sweden §55). This
has not been
done.
As to the ‘
credibility
issues’ raised by the majority, an
asylum seeker is required to make ‘a genuine effort to substantiate his story’.
The extensive scarring on his body and the medical/
forensic
evidence of two
independent experts is sufficient, to my mind, to satisfy this requirement.
After such an effort to substantiate has been made ‘there may still be a lack
of evidence
for
some of his statements’. As the UNHCR Handbook on Procedures
and
Criteria
for
Determining
Refugee Status provides:-
“[I]t is hardly
possible
for
a refugee to “prove” every part of his
case
and, indeed, if this
were
a requirement the majority of refugees
would
not be recognised. It is
therefore
frequently
necessary to give the applicant the benefit of the
doubt.”
class=MsoFootnoteReference>
Given the significant substantiation of the applicant’s
claim
of having been tortured, the ‘
credibility
issues’ relied upon by the majority
are not of sufficient
weight
as to
warrant
a
departure
from
the principles
previously articulated by this
Court.
The respondent State having
failed
to
dispel
any
doubts
about the applicant’s subjection to a recurrence of
ill-treatment if
deported
to Ethiopia, I
find
that its obligations under
Articles 2 and 3 of the
Convention
would
be breached if it proceeds to return
him to the place
wherein
he has been tortured.