F.G. v. Sweden [GC]

Avrupa İnsan Hakları Mahkemesi

Karar Metni

Information Note on the Court’s case-law 194

March 2016

F.G. v. Sweden [GC] - 43611/11

Judgment 23.3.2016 [GC]

Article 37

Special circumstances requiring further examination

Procedural issues justifying continued examination of complaint despite expiration of deportation order: request to strike out dismissed

Article 2

Expulsion

Article 3

Expulsion

Proposed expulsion to Iran of low-profile political activist: deportation would not constitute a violation

Proposed expulsion to Iran without adequate investigation of reality and implications of conversion to Christianity after arrival in Europe: deportation would constitute a violation

Facts – The applicant, an Iranian national, applied for asylum in Sweden on the grounds that he had worked with known opponents of the Iranian regime and had been arrested and held by the authorities on at least three occasions between 2007 and 2009, notably in connection with his web publishing activities. He said that he had been forced to flee after discovering that his business premises, where he kept politically sensitive material, had been searched and documents were missing. After arriving in Sweden, he had converted to Christianity, which he claimed put him at risk of capital punishment for apostasy on a return to Iran. His request for asylum was rejected by the Swedish authorities, who made an order for his expulsion.

In a judgment of 16 January 2014, a Chamber of the Court held by four votes to three that the implementation of the expulsion order against the applicant would not give rise to a violation of Article 2 or 3 of the Convention. It found that no information had emerged to indicate that the applicant’s political activities and engagement had been anything more than peripheral. As regards his conversion to Christianity, he had expressly stated before the domestic authorities that he did not wish to invoke his religious affiliation as a ground for asylum, since he felt this to be a private matter and there was nothing to indicate that the Iranian authorities were aware of his conversion. In conclusion, the applicant had failed to substantiate a real and concrete risk of proscribed treatment if he was returned to Iran.

Law

Article 37 § 1: The Government requested the Grand Chamber to strike the case out of its list as the deportation order against the applicant had become statute-barred in June 2015 and was no longer enforceable. The Grand Chamber noted, however, that the case involved important issues – notably concerning the duties to be observed by the parties in asylum proceedings – that went beyond the applicant’s particular situation. There were therefore special circumstances regarding respect for human rights as defined in the Convention and its Protocols which required the continued examination of the case.

Conclusion: request to strike out dismissed (sixteen votes to one).

Articles 2 and 3

(a) General principles – The Grand Chamber reiterated that where there were substantial grounds to believe that a person, 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 implied that the Contracting State must not expel that person. It therefore examined the two Articles together.

In relation to asylum claims based on a well-known general risk, when information about such a risk was freely ascertainable from a wide number of sources, the obligations incumbent on the States under Articles 2 and 3 in expulsion cases entailed that the authorities carry out an assessment of that risk of their own motion.

By contrast, in relation to asylum claims based on an individual risk, it must be for the person seeking asylum to rely on and to substantiate such a risk. Accordingly, if an applicant chose not to rely on or disclose a specific individual ground for asylum by deliberately refraining from mentioning it, the State concerned could not be expected to discover this ground by itself. However, considering the absolute nature of the rights guaranteed under Articles 2 and 3 of the Convention, and having regard to the position of vulnerability that asylum seekers often found themselves in, if a Contracting State was made aware of facts, relating to a specific individual, that could expose him to a risk of ill-treatment upon returning to the country in question, the obligations incumbent on the States under Articles 2 and 3 of the Convention entailed that the authorities carry out an assessment of that risk of their own motion. This applied in particular to situations where the national authorities were made aware of the fact that the asylum seeker may, plausibly, be a member of a group systematically exposed to a practice of ill-treatment and there were serious reasons to believe in the existence of the practice in question and in his or her membership of the group concerned.

(b) Application of the principles to the applicant’s case

(i) The applicant’s political activities – The applicant did not claim that the general circumstances obtaining in Iran would on their own preclude his return to that country. Nor did the Grand Chamber 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 returned.

As regards the applicant’s personal situation, the Grand Chamber noted that the national authorities had found that the political activities in which the applicant was engaged in Iran could be considered to have taken place at a low level. That finding was supported by the fact that since 2009 the applicant had not received any new summonses from the Revolutionary Court and that none of the applicant’s family members remaining in Iran had been subjected to any reprisals by the Iranian authorities. In these circumstances, the Grand Chamber was not convinced by the applicant’s claim that the Swedish authorities had failed to duly take into account matters such as his ill-treatment during detention in September 2009, or the risk of his being detained at the airport in the event of deportation. Nor could it conclude that the proceedings before the Swedish authorities were inadequate and insufficiently supported by domestic material or by material originating from other reliable and objective sources. As concerns the risk assessment, there was no evidence to support the allegation that the Swedish authorities had been wrong to conclude that the applicant was not a high-profile activist or political opponent. Lastly, the applicant had been granted anonymity in the proceedings before the Court and, based on the materials before it, there were no strong indications of an identification risk.

Conclusion: deportation would not constitute a violation (unanimously).

(ii) The applicant’s religious conversion – The Migration Board had rejected the applicant’s request for asylum after noting that the applicant had not initially wished to invoke his conversion as a ground for asylum and had stated that his new faith was a private matter. It concluded that to pursue his faith in private was not a plausible reason for believing that the applicant would risk persecution upon return. Subsequently, in its decision dismissing the applicant’s appeal against the Migration Board’s decision, the Migration Court observed that the applicant no longer relied on his religious views as a ground for persecution and accordingly did not carry out an assessment of the risk the applicant might encounter, as a result of his conversion, upon returning to Iran. The applicant’s request for leave to appeal to the Migration Court of Appeal was dismissed. His subsequent applications for a stay of execution of the removal order were refused on the grounds that the applicant’s conversion did not constitute a new circumstance justifying a re-examination of the case.

Thus, due to the fact that the applicant had declined to invoke his conversion as an asylum ground and despite being aware that he had converted in Sweden from Islam to Christianity and might therefore belong to a group of persons who, depending on various factors, could be at risk of treatment in breach of Articles 2 and 3 of the Convention upon a return to Iran, the Migration Board and the Migration Court did not carry out a thorough examination of his conversion, the seriousness of his beliefs, the way he manifested his Christian faith in Sweden and how he intended to manifest it in Iran if the removal order were executed. Moreover, the conversion was not considered a “new circumstance” which could justify a re-examination of his case. The Swedish authorities had therefore never made an assessment of the risk that the applicant might encounter, as a result of his conversion, upon a return to Iran. However, in view of the absolute nature of Articles 2 and 3 it was hardly conceivable that the applicant could forego the protection afforded thereunder. It followed therefore that, regardless of his conduct, the competent national authorities had an obligation to assess, of their own motion, all the information brought to their attention before taking a decision on his removal to Iran.

The applicant had submitted various documents to the Grand Chamber which were not presented to the national authorities, including a written statement about his conversion, the way he manifested his Christian faith in Sweden and how he intended to manifest it in Iran if the removal order was executed, and a written statement by the former pastor at his church. In the light of that material and the material previously submitted by the applicant to the national authorities, the Court concluded that the applicant had sufficiently shown that his claim for asylum on the basis of his conversion merited an assessment by the national authorities. It was for the domestic authorities to take this material into account, as well as any further development regarding the general situation in Iran and the particular circumstances of the applicant’s situation.

It followed that there would be a violation of Articles 2 and 3 if the applicant were to be returned to Iran without an ex nunc assessment by the Swedish authorities of the consequences of his conversion.

Conclusion: deportation would constitute a violation (unanimously).

Article 41: no claim made in respect of non-pecuniary damage; claim in respect of pecuniary damage dismissed.

Click here for the Case-Law Information Notes

Full & Egal Universal Law Academy