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.