THIRD SECTION
DECISION
Application no 36384/16
A.J. and F.B.
against Sweden
The European Court of Human Rights (Third Section), sitting on 13 December 2016 as a committee composed of:
Dmitry Dedov, President,
Helena Jäderblom,
Branko Lubarda, judges,
and Fatoş Aracı, Deputy Section Registrar,
Having regard to the above application lodged on 20 June 2016,
Having regard to the interim measure indicated to the respondent Government under Rule 39 of the Rules of Court and the fact that this interim measure has been complied with,
Having regard to the decision to grant priority to the above application under Rule 41 of the Rules of Court,
Having deliberated, decides as follows:
THE FACTS
1. The applicants, a married couple, are Afghan nationals who were born in 1985 and 1992 respectively. The President granted the applicants’ request for their identity not to be disclosed to the public (Rule 47 § 4). They were represented before the Court by Ms M. Hellborg, a lawyer practising in Goteborg.
A. The circumstances of the case
2. The facts of the case, as submitted by the applicants, may be summarised as follows.
3. The applicants applied for asylum on 3 May 2012 and were interviewed twice by the Migration Agency (Migrationsverket). They submitted that they were Hazaras from the Ghazni province of Afghanistan.
4. At the asylum interviews the first applicant stated the following. He had left Afghanistan for Greece for the first time in 2002 and applied for asylum there in 2004. In 2010 he had voluntarily returned to Afghanistan since his application had been refused by the Greek authorities and the threat in Afghanistan had no longer been present. After having first stayed in Kabul, he had later moved to a smaller town. The mullah there had found his views on other religions too liberal, and he had been seen as an apostate. He had become isolated and could not work. He had met the second applicant and had fallen in love with her, but her family had not accepted him. Sometime later the mullah had given the first applicant a job as a caretaker at the mosque. One day the fireplace had caught fire and parts of the mosque had burned down. He had been suspected of having set the mosque on fire intentionally and had been arrested. Allegedly, the mullah had stated that he had the authority to sentence the first applicant to death by stoning. The applicants had fled Afghanistan together in 2010. The first applicant alleged that he had become interested in Christianity in 2002 during his stay in Greece, where he had handed out Christian magazines to people on the street and had gone to church twice a week and taken part in other church activities. He had not been allowed to be baptised because the priest there found his knowledge of Christianity to be insufficient. In June 2012 he had been baptised in Sweden at the Pentecostal church. He had come to appreciate Christianity’s respect for women, honesty and tolerance of other faiths. He did not think that other Afghans in his circle or the Afghan authorities were aware of his conversion, but the authorities would eventually come to know of it because he would not hide his conversion if returned to Afghanistan. This would put his life at risk. He had also taken another man’s wife to be his, for which he risked harsh punishment. Finally, the applicants alleged that they were not able to relocate internally in Afghanistan.
5. The second applicant stated at the interviews that she had been kidnapped, assaulted and raped by a man whom she had later been forced to marry. She had run away and divorced her husband and had married the first applicant. Consequently, she would risk being killed if returned to Afghanistan. She had not, however, converted to Christianity.
6. On 12 May 2013 the Migration Agency rejected the applicants’ asylum applications and ordered their deportation to Afghanistan. It noted that they had failed to substantiate that the first applicant had returned to Afghanistan in 2010, that the marriage certificate that they had submitted only in copy contained a birth date and a family name which differed from the information given in their asylum applications, that they had given numerous diverging explanations as to how their friends in Greece had sent the certificate to them, and that no documents certifying the second applicant’s divorce from her first husband had been submitted. In any event, even if their claims concerning the first applicant’s return to Afghanistan and the later divorce and marriage were to be accepted, the Agency found that the applicants’ stories were, in central parts, vague, contradictory and peculiar. It noted that the first applicant had been given work as a janitor in the mosque despite his being seen as an apostate. Furthermore, the information on the possible death sentence was deemed vague and remarkable, as the first applicant had not seen the actual order; the mullah had just waved a piece of paper which allegedly gave him the authority to sentence the first applicant. It was also unclear which authority had issued the document.
7. Concerning the first applicant’s conversion, the Migration Agency first noted that he had not mentioned in the first asylum interview that he had previously tried to convert in Greece and planned to convert in Sweden. Moreover, although, in the view of the Agency, a genuine conversion must be seen as an important step in a person’s life, the applicant’s statements on why he had converted and what Christianity meant to him were vague and of a rather general nature. Despite his alleged ten-year interest in Christianity, he had no knowledge of the main Christian holidays and the disposition of the Bible and had also been unable to give an account of what he considered to be the Christian message. In general, he had not been able to relate any deeper knowledge of the Bible or of Christianity. He had explained that this was due to his not yet having had the opportunity to study the religion. The Migration Agency found that the first applicant had not converted out of a genuine religious conviction and that he had not made it probable that he intended to live as a convert upon return Afghanistan. Furthermore, there was no indication that his baptism or other religious activities had come to the attention of the Afghan authorities.
8. With respect to the second applicant, the Migration Agency noted that she had herself stated that she was a Muslim and had not converted to Christianity. She had changed her story on her alleged kidnapping, and her submissions regarding her ex-husband’s background and position were also considered vague. Furthermore, her statements on when she had met the first applicant were deemed vague and lacking in detail and contradicted the first applicant’s submissions. Having regard to these credibility issues, the Agency concluded that she had not shown that she would be at risk for having remarried.
9. In sum, the Migration Agency found that the individual reasons put forward by the applicants did not warrant granting asylum.
10. As regards the general situation in Afghanistan, the Agency referred to a legal statement by the head of the Agency’s legal department, issued in 2010, according to which there were internal armed conflicts in a number of provinces in Afghanistan, inter alia, Ghazni, and aggravated tensions in a number of others, but that there were internal flight alternatives for families with a male leader. Because of the internal armed conflict in the applicants’ home province of Ghazni, the Agency examined the possibility of an internal flight alternative. It noted that, according to the available country information, men could settle in a different location in Afghanistan even without the support of a network. Women and families could travel with their men, but might face harassment and ill-treatment if they travelled on their own. Sporadic acts of violence occurred in Kabul, primarily targeting public authorities and officials, but the majority of the city’s population had moved from other parts of Afghanistan without the support of an existing social network and all ethnic minorities were represented in the province. Thus, the general situation in Kabul did not in itself warrant granting asylum. Taking into account that the applicants were young, healthy and able to work, the Agency concluded that Kabul was a relevant and reasonable alternative within Afghanistan.
11. The applicants appealed against the decision and in essence made the same submissions as before the Migration Agency. They added that the original marriage certificate had been sent by post but had never arrived. Moreover, the mullah had hired the first applicant in order to bring him back to Islam and to be able to control him. The first applicant’s conversion essentially consisted of his having adopted Christian values. He had not been able to study the religion in detail due to his illiteracy. In Afghanistan he had run into trouble merely by questioning the values of Islam. He had not been able to read the document that the mullah had waved in front of him because he was illiterate, but he had recognised the seal of the district office. They did not know the position of the second applicant’s ex-husband because Talibans did not have positions as in Sweden. They knew that he was powerful and influential, however, because he had driven expensive cars and money was power in Afghanistan. He had worked for the district office. The second applicant claimed not to have changed her story; rather, she had been misunderstood, either by the interpreter or the Migration Agency’s administrator. By leaving her husband, the second applicant had breached Muslim values. Her ex-husband had connections and could kill her, even in Kabul.
12. On 27 September 2013 the applicants’ appeal was rejected by the Migration Court (Migrationsdomstolen). The court, which held an oral hearing, shared the reasoning of the Migration Agency regarding the general situation in Afghanistan and the applicants’ personal grounds for seeking asylum. It found that the first applicant had not explained why he had returned to his home village and agreed to be employed by the mullah, despite the perceived serious threat from the mullah. It deemed the first applicant’s account of the alleged death sentence to be vague and speculative. Consequently, the court considered that he had not made it probable that he would be in need of asylum because of his non-Muslim behaviour or the fire in the mosque. Furthermore, it noted that no original documents had been submitted concerning the second applicant’s alleged divorce, or the applicants’ marriage certificate. Also, the second applicant had given conflicting accounts of the divorce proceedings. The court concluded that the applicants had not made probable the alleged events causing their flight and marriage. Moreover, their accounts of the second applicant’s ex-husband and how they had got in touch and fled after the fire in the mosque were deemed vague and lacking in detail. In sum, the court concluded that the applicants had not shown that they were in need of international protection because of the incidents that had allegedly occurred in Afghanistan or their submissions concerning their marriage.
13. Regarding the applicants’ sur place activities, the court first noted that religious conversion for Muslims was criminalised under Sharia law and punishable by death. It further noted that the first applicant’s conversion was not an expression or a continuation of views that he held before leaving Afghanistan in 2002. However, it considered that he had proved that he had formally converted by being baptised. To assess whether or not his conversion was genuine, the court turned to an examination of his credibility. The court held that a religious conversion constituted a major change in a person’s life and that, in the light of what is known of the Afghan attitude on the matter, abandoning Islam in favour of Christianity must be considered a very far-reaching step in the life of an Afghan. The court therefore shared the Migration Agency’s conclusion that it was remarkable that the first applicant had failed to mention during the first asylum interview that he had tried to convert in Greece and that he had planned to convert in Sweden. Moreover, the court noted that the first applicant had not been able to describe what, in the Christian faith, had convinced him to convert. It found it conspicuous that, despite his ten-year interest in Christianity, he had not demonstrated any profound knowledge of the Bible, Christian holidays or other aspects of the religion. Furthermore, the first applicant had only started attending church services on a more regular basis around the time when the Migration Agency had refused his asylum application. In the light of the above, the court concluded that he had not made it plausible that he had converted out of a genuine religious conviction or that he intended to live as a convert in Afghanistan and consequently risk persecution. It found that there was nothing to indicate that the baptism or other activities within the parish had, or could, come to the attention of the Afghan authorities. In consequence, the second applicant was deemed not to have substantiated a risk of treatment warranting international protection due to having married a convert.
14. Turning to the general situation in Afghanistan and the issue of an internal flight alternative, the court noted that there was an internal armed conflict in the applicants’ home province. With respect to Kabul, the humanitarian situation was serious and there were aggravated tensions in the province. Having regard to the fact that the applicants belonged to a vulnerable minority without a social network, the court concluded that Kabul was not a reasonable alternative. However, it held that there were other sufficiently safe provinces, such as Herat and Mazar-e-Sharif, to which the applicants could reasonably relocate.
15. On 9 January 2014 the Migration Court of Appeal (Migrationsöverdomstolen) refused leave to appeal.
16. Subsequently, the applicants alleged that there were impediments to their deportation and requested the Migration Agency to grant them a new assessment of their case. They submitted in essence the following. In October 2013 the second applicant had converted to Christianity and had been baptised in the same church as the first applicant. She had converted because she had seen that conversion had had a positive impact on the first applicant. She had attended the first applicant’s baptism and had started reading the Bible. Her commitment had dawned late and her understanding of the Christian message had taken time. Given the known danger of being an apostate in Afghanistan, their return there would put their lives at immediate risk. Their faith was so strong that they would refuse to follow the religious traditions of their home country. They submitted their baptism certificates and a written statement by a pastor of their parish attesting to their religious activities.
17. On 8 April 2014 the Migration Agency dismissed the petition to stop the deportation. It noted that the first applicant’s conversion had already been assessed in the earlier decision, which had acquired legal force. Regarding the second applicant, it noted that it transpired from the oral hearing before the Migration Court that she had denied having converted to Christianity. She had claimed to have been a Muslim but, as she had not adhered to the Muslim dress code, she had been criticised by Afghan women. Also, she had been seen as non-Muslim due to her marriage to a non-Muslim man. In view of the above, and considering that the information on the second applicant’s formal conversion was to be viewed as an addition to or modification of circumstances which had already been examined in the earlier decision, the Migration Agency concluded that there were no reasons to stop the deportation or to grant the applicants a new assessment of their case.
18. Upon appeal by the applicants, on 13 May 2014 the Migration Court upheld the impugned decision, sharing the reasoning of the Migration Agency regarding the first applicant. Concerning the second applicant, the court found that the issue of her conversion to Christianity, her baptism and the consequences thereof were new circumstances which had not been assessed in previous proceedings. However, the court noted that she had not been interested in Christianity while living in Afghanistan. Furthermore, although she had denied being a Christian up until the Migration Court’s judgment in September 2013, she had been baptised soon after, in October 2013. Also, she had now presented a written statement by a pastor according to which she had attended church as early as in June 2013. The court found these events contradictory and concluded that the second applicant’s submissions about her Christian faith were highly questionable and did not constitute an impediment to her deportation.
19. Subsequently, the applicants again alleged that there were impediments to their deportation and requested the Migration Agency to grant them a new assessment of their case. They submitted that their long and deep involvement with Christianity showed that they had lived as established Christians. They had been known for their Christian activities and had pursued missionary work. Their conversion was known in Afghan society, in Sweden and in Afghanistan. They had had an Afghan Muslim guest in August 2014. He had disapproved of their religious conversion and had threatened them. They had later learned that he had been sent back to Afghanistan in October 2014. He had subsequently called them and threatened them with execution for being apostates. He had said that he had told the authorities about the applicants’ religious conversion.
20. On 27 November 2015 the Migration Agency dismissed the petition to stop the deportation. It noted that the applicants’ conversion had already been assessed in the earlier decisions which had acquired legal force and which had concluded that their conversion was not based on a genuine religious conviction. The Agency further found that the general situation in Afghanistan had not changed since its previous decisions in such a way that it constituted an impediment to the applicants’ deportation. Regarding the alleged threats from an Afghan guest, the Agency noted that the allegations had not been corroborated or substantiated in any way.
21. The applicants appealed. In addition to what they had previously stated, they argued that the fact that they now had a child, a daughter born in December 2014, warranted granting asylum.
22. On 4 February 2016 the Migration Court rejected the appeal, sharing the reasoning of the Migration Agency. It noted that the applicants had submitted additional written statements from friends, according to which the applicants had received threats from fellow countrymen because of their religious conversion. The court found that, even if the events described in the written statements had actually occurred and their countrymen had learned about the applicants’ conversion, those circumstances alone did not warrant granting asylum. The same conclusion was reached with respect to the applicants’ child.
23. On 30 March 2016 the Migration Court of Appeal refused leave to appeal.
24. The applicants submitted an asylum application on behalf of their daughter. Noting that she had no health issues and that her deportation together with her parents would not violate Article 8 of the Convention, the Migration Agency rejected the application on 27 November 2015, referring to the reasons given in the decisions concerning the applicants. The decision was upheld by the Migration Court on 4 February 2016. On 30 March 2016 the Migration Court of Appeal refused leave to appeal.
25. The present application was lodged with the Court on 20 June 2016. On 20 September 2016 the duty judge decided to indicate to the Government of Sweden that it was desirable in the interests of the parties and the proper conduct of the proceedings before the Court not to deport the applicants to Afghanistan for the duration of the proceedings before it (Rule 39 of the Rules of Court).
B. International materials
26. Information relating to the situation of the Hazaras can be found in, inter alia, A.M. v. the Netherlands, no. 29094/09, 5 July 2016, and M.H.A. v. the Netherlands (dec.) 61402/15, 5 July 2016, and relating to sur place activities of asylum seekers in T.M. and Y.A. v. the Netherlands (dec.) 209/16, 5 July 2016.
COMPLAINTS
27. The applicants complained under Articles 2, 3, 5, 6 and 9 of the Convention that, if returned to Afghanistan, they would be tortured and killed, the first applicant because he had burned down a mosque and the second applicant because she had run away from her ex-husband. The Afghan authorities would not give the first applicant a fair trial and the applicants would be on the run and would not be safe anywhere in Afghanistan because of these threats. They would also be punished and risk being killed for their religious conversion. Allegedly, Christianity is not allowed in Afghanistan, for which reason they would not be able to exercise their freedom of religion in a safe manner. Furthermore, they would face the risk of death because they are Hazaras, who have been persecuted and discriminated against by the Taliban.
THE LAW
A. Articles 2 and 3 of the Convention
28. The applicants complained that it would be in breach of Articles 2 and 3 of the Convention to deport them to Afghanistan. These provisions 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.
2. Deprivation of life shall not be regarded as inflicted in contravention of this article when it results from the use of force which is no more than absolutely necessary:
(a) in defence of any person from unlawful violence;
(b) in order to effect a lawful arrest or to prevent the escape of a person lawfully detained;
(c) in action lawfully taken for the purpose of quelling a riot or insurrection.”
Article 3
“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”
1. General principles
29. At the outset the Court observes that in the context of expulsion, where there are substantial grounds to believe that the person in question, if expelled, would face a real risk of capital punishment, torture, or inhuman or degrading treatment or punishment in the destination country, both Articles 2 and 3 imply that the Contracting State must not expel that person. The Court will therefore examine the two Articles together (see, among other authorities, mutatis mutandis, Mocanu and Others v. Romania [GC], nos. 10865/09, 45886/07 and 32431/08, § 314, ECHR 2014 (extracts); T.A. v. Sweden, no. 48866/10, § 37, 19 December 2013; K.A.B. v. Sweden, no. 886/11, § 67, 5 September 2013; Kaboulov v. Ukraine, no. 41015/04, § 99, 19 November 2009; and F.H. v. Sweden, no. 32621/06, § 72, 20 January 2009).
30. The Court reiterates the general principles regarding the assessment of applications for asylum under Articles 2 and 3 of the Convention as recently set out in the judgment in the case of F.G. v. Sweden ([GC], no. 43611/11, §§ 111-118, 23 March 2016, with further references). Most importantly, the machinery of complaint to the Court being subsidiary to national systems safeguarding human rights, the Court does not itself examine the actual asylum applications. Its main concern is whether effective guarantees exist that protect the applicant against refoulement, be it direct or indirect, to the country from which he or she has fled. Moreover, where domestic proceedings have taken place, it is not the Court’s task to substitute its own assessment of the facts for that of the domestic courts – as a general principle, the national authorities are best placed to assess not just the facts but, more particularly, the credibility of witnesses since it is they who have had an opportunity to see, hear and assess the demeanour of the individual concerned.
31. The judgment in F.G. v. Sweden also contains an overview of the State’s procedural duties in the examination of applications for asylum (F.G. v. Sweden, cited above, §§ 119-127). Of particular relevance to the present case are the Court’s following considerations:
“123. In respect of sur place activities the Court has acknowledged that it is generally very difficult to assess whether a person is genuinely interested in the activity in question, be it a political cause or a religion, or whether the person has only become involved in it in order to create post-flight grounds (see, for example A.A. v. Switzerland, no. 58802/12, § 41, 7 January 2014). That reasoning is in line with the UNCHR Guidelines on International Protection regarding Religion-Based Refugee Claims of 28 April 2004, which state ‘that particular credibility concerns tend to arise in relation to sur place claims and that a rigorous and in-depth examination of the circumstances and genuineness of the conversion will be necessary ... So-called “self-serving” activities do not create a well-founded fear of persecution on a Convention ground in the claimant’s country of origin, if the opportunistic nature of such activities will be apparent to all, including the authorities there, and serious adverse consequences would not result if the person were returned’ (see paragraph 52 above). See also the Court’s finding in, for example, Ali Muradi and Selma Alieva v. Sweden ((dec.), no.11243/13, §§ 44-45, 25 June 2013) to this effect.”
32. In the recent judgment in A.M. v. the Netherlands (no. 29094/09, 5 July 2016) the Court held the following regarding the general security situation in Afghanistan and the situation of the Hazaras:
“86. Although this argument has only been raised in the domestic proceedings but not in the present application, the Court has examined the question whether the applicant runs a risk of being subjected to ill-treatment on account of his Hazara origin. On this point, the materials before the Court contain no elements indicating that the applicant’s personal position would be any worse than most other persons of Hazara origin who are currently living in Afghanistan. Although the Court accepts that the general situation in Afghanistan for this minority may be far from ideal, it cannot find that it must be regarded as being so harrowing that there would already be a real risk of treatment prohibited by Article 3 in the event that a person of Hazara origin were to be removed to Afghanistan.
87. Regarding the question of whether the general security situation in Afghanistan is such that any removal there would necessarily breach Article 3 of the Convention, in its judgment in the case of H. and B. v. the United Kingdom (cited above, §§ 92-93), it did not find that in Afghanistan there was a general situation of violence such that there would be a real risk of ill-treatment simply by virtue of an individual being returned there. In view of the evidence now before it, the Court finds no reason to hold otherwise in the instant case.”
2. Application of the general principles to the present case
33. In the present case, the Swedish authorities were, in so far as the applicants’ alleged conversion from Islam to Christianity is concerned, confronted with a sur place activity in Sweden. Thus, the domestic authorities initially had to assess whether the applicants’ conversion was genuine and had attained a certain level of cogency, seriousness, cohesion and importance (see F.G. v. Sweden, cited above, § 144, with further references), before assessing whether the applicants would be at risk of treatment contrary to Article 2 or 3 of the Convention upon their return to Afghanistan.
34. The Court notes that the Migration Agency interviewed the applicants on two occasions in the course of the examination of their asylum applications. The first applicant did not mention at the first interview that he had previously tried to convert in Greece and planned to convert in Sweden. As noted by the Migration Court, he was not able to describe what in the Christian faith attracted him or show any particular knowledge about the religion, despite having claimed that he had been interested in it for ten years. As regards the second applicant, she maintained that she was Muslim until the Migration Court’s judgment in the original proceedings. However, she was baptised soon after in the same church as her husband. In the Court’s view, the domestic instances were justified in finding that their conversion to Christianity was not genuine and that they were not likely to live as Christians if returned to Afghanistan (see, for similar reasoning concerning removal to Afghanistan of applicants who converted to Christianity, J. G. v. the Netherlands (dec.), no. 70602/14; M.H.A. v. the Netherlands (dec.), no. 61402/15; and T.M. and Y.A. v. the Netherlands (dec.), no. 209/16; all decisions taken on 5 July 2016). Furthermore, their conclusions were reached with due account taken of the statements made by the applicants, as well as the documents submitted by them, and after thorough examinations of all the relevant and available information. No submissions made by the applicants thereafter give reason to come to a different conclusion.
35. In regard to the first applicant’s alleged burning of a mosque and the second applicant’s fears of her alleged ex-husband, the Court also agrees with the findings of the domestic instances which deemed central parts of these accounts to be vague and contradictory.
36. The Court further observes that the applicants were able to appeal against the decisions rejecting their asylum applications and their request for a stay of enforcement of the expulsion order and that they were represented by counsel throughout the proceedings. It also notes that a hearing was held in the appeal proceedings before the Migration Court (see paragraph 12 above).
37. Furthermore, it cannot find any indications that the proceedings before the domestic instances lacked effective guarantees to protect the applicants against refoulement or that they were otherwise flawed. .
38. Lastly, in the judgment in A.M. v. the Netherlands (cited above, § 26) the Court found that neither the general security situation in Afghanistan nor the specific situation for the Hazaras were such as to render an expulsion in breach of Article 3 of the Convention. Noting that the Swedish Migration Court in the present case indicated Herat and Mazar‑e‑Sharif as safe provinces for the applicants, the Court finds no reason to come to a different conclusion in the present case.
39. In the light of the above, the Court considers that the applicants have failed to show that their return to Afghanistan would expose them to a real risk of being subjected to treatment contrary to Article 2 or 3 of the Convention on account of their alleged conversion or on any other ground.
40. It follows that this part of the application is manifestly ill-founded and must be declared inadmissible in accordance with Article 35 §§ 3 (a) and 4 of the Convention.
41. In view of the above, it is appropriate to discontinue the application of Rule 39 of the Rules of Court.
B. Articles 5, 6 and 9 of the Convention
42. The applicants also complained under Articles 5, 6 and 9 of the Convention. Having regard to the conclusions reached by the Court in relation to the applicants’ complaints under Articles 2 and 3 of the Convention, it finds that the present complaints do not raise any separate issue.
43. It follows that this part of the application is also manifestly ill‑founded and must be declared inadmissible in accordance with Article 35 §§ 3 (a) and 4 of the Convention.
For these reasons, the Court, unanimously,
Declares the application inadmissible.
Done in English and notified in writing on 19 January 2017.
Fatoş AracıDmitry Dedov
Deputy RegistrarPresident
Full & Egal Universal Law Academy