THIRD SECTION
DECISION
Application no. 47058/16
M.T. and Others
against Sweden
The European Court of Human Rights (Third Section), sitting on 6 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 5 August 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 regard to the decision to grant the applicants anonymity under Rule 47 § 4 of the Rules of Court,
Having deliberated, decides as follows:
THE FACTS
1. The applicants are a family of Afghan nationals, consisting of the first applicant M.T., born in 1987, and her four children, born in 2005, 2008, 2009 and 2012, respectively. They are currently in Sweden.
A. The circumstances of the case
2. The facts of the case, as submitted by the applicants, may be summarised as follows.
3. On 22 July 2014, the applicants applied for asylum in Sweden. The first applicant submitted essentially the following. Her husband and the father of her children, X, had disappeared during a business trip to Kandahar in 2011 along with his colleagues. He had been employed by an international company. After having searched for X for about two years without result, his family had considered him deceased and had demanded that the first applicant marry her brother-in-law. Her brother-in-law was 25 years old, unmarried, and lived in the same house as X’s parents and the applicants. As the first applicant had refused to marry him, the family had demanded custody of her children. The applicants had then returned to the first applicant’s father’s home. However, before the first applicant’s father had been able to intervene to try to resolve the situation he had been killed by X’s family, in June 2014. The applicants submitted that they would risk being killed if they were returned to Afghanistan.
4. The application was rejected by the Migration Agency (Migrationsverket) on 1 October 2015. It noted that the first applicant had claimed that her husband had worked for an international company but that she had submitted no documents in support of this claim. She had submitted no evidence in support of the alleged disappearance either, although the simultaneous disappearance of several employees from an international company would have attracted media attention. She had only given brief information on the disappearance and she had submitted that she, as a woman, could not participate in the search for him. However, the Migration Agency took note of a country of origin report (Swedish Ministry for Foreign Affairs, “Human Rights in Afghanistan”, dated 1 May 2014) which stated that women in the cities had greater freedom of movement than other women. Also, she had not lacked male relatives who could have accompanied her. The Migration Agency therefore did not find her explanation of why she had not taken further action following his disappearance to be credible. On the forced marriage issue, the Agency noted, based on a country of origin report (Norwegian Landinfo, “Afghanistan: Marriage”, dated 5 June 2014), that this practice occurred, although illegally. However, she had not shown that it was likely that her husband’s family would force her to remarry. She was also deemed to have a male network in Afghanistan as she had not only her husband’s family, but also an uncle in Kabul. The application for asylum was therefore rejected.
5. The applicants appealed to the Migration Court (Migrationsdomstolen) against the decision, essentially maintaining their submissions.
6. On 2 February 2016, after having held an oral hearing, the Migration Court rejected their appeal. It found that the first applicant’s statements before the court had contradicted the statements made in the asylum interview. First she had stated that her brother-in-law was 25 years old, unmarried and a student and then, before the court, that he was approximately 55 years old, married to two wives, and a warlord. She had also stated that her husband’s family had been looking for him for about one and a half months, but later changed this to two years. The first applicant blamed the contradictions on the interpreter and said that she had believed questions about the brother‑in‑law to be about her husband. However, the court noted that she was expressly asked in the asylum interview whether her brother-in-law was younger than her husband and she had replied that he was, and that he was even younger than her. Therefore she could not have believed that the question was about her husband.
7. Moreover, the court found, like the Migration Agency, that she had given contradictory statements about her reasons for not wishing to marry her brother-in-law. She had explained during the asylum interview that she opposed the marriage because she still believed that her husband was alive and because she could never imagine being her brother-in-law’s wife as they lived in the same house, as a family. At the court hearing, she had submitted that the brother-in-law did not live with them but that he had two wives with whom he lived. Also, during the asylum interview, she had not said that she was afraid of and felt uncomfortable with her brother-in-law, as she had submitted during the oral hearing. The court therefore found that she had not made it credible that her husband had disappeared and that she had been subjected to a forced marriage attempt. It also followed that she did not lack a male network in Afghanistan. Lastly, the court observed that the children were healthy and had spent a relatively short time in Sweden and they could therefore not be granted leave to remain on this ground.
8. On 3 March 2016, the Migration Court of Appeal (Migrationsöverdomstolen) refused leave to appeal.
9. On 5 August 2016, the applicants lodged their application with the Court and requested it to apply Rule 39 of the Rules of Court. On 16 August 2016 the Duty Judge acceded to the applicants’ request and 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.
10. On 21 September 2016, the applicants submitted a copy to the Court of what they claimed was a certificate proving the disappearance of the first applicant’s husband. According to the certificate (written in Dari), upon request by a close relative of X’s who states that he has been missing since July/August 2012 (Asad 1391, according to the Afghan calendar), three neighbours of the first applicant’s husband and one other person testify that the first applicant’s husband has gone missing. The area representative certifies this information and it is stamped as having been issued by the Municipal Administration in Kabul in 1392 (Afghan calendar). Another stamp on the documents is that of “the Ministry of Finance/Kabul Tax Authority/Administrative Office/ 1390 H Sh”. Not all parts of the form have been completed, and the case number is missing. The applicants also submitted a copy of a second document (written in English) which confirms the death of the first applicant’s father. It has been issued by the Aryana Shifa Hospital and states that the first applicant’s father went to the hospital on 30-03-1393 (20 June 2014) and died the same day due to head trauma and cardio-respiratory arrest. It contains several different stamps, including one from the Afghan Ministry of Foreign Affairs, dated 24 August 2016.
B. Relevant domestic law
11. 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 Aliens Act (utlänningslagen, 2005:716).
12. 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 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).
13. 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) as to allow him or her to remain in Sweden (Chapter 5, section 6).
COMPLAINTS
14. The applicants complained under Articles 2 and 3 of the Convention that they would face a real risk of being killed or ill-treated if they were forced to return to Afghanistan. They also submitted that they would have no one to protect them in Afghanistan and therefore their family and private life would be violated, contrary to Article 8 of the Convention. Moreover, they relied on Article 9, alleging that they had participated in Christian activities in Sweden. Under Article 12, they complained that they would be refused the right to choose their own partner upon return. The first applicant also relied on Article 14 and claimed that she, as a woman, would be discriminated against in Afghanistan. Finally, under Article 2 of Protocol No. 1 to the Convention, the applicants claimed that the children would be refused the right to attend school in Afghanistan.
THE LAW
A. The applicants’ complaint under Articles 2 and 3 of the Convention
15. The applicants complained under Articles 2 and 3 of the Convention that they would face a real risk of being killed or ill-treated if they were to be expelled to Afghanistan. In relevant parts, these Articles 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.”
16. The Court refers to 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, §§ 111-127, ECHR 2016, with further references).
17. Notably, the Court does not itself examine the actual asylum applications. Its main concern is whether effective guarantees exist that protect the applicant against arbitrary refoulement, be it direct or indirect, to the country from which he or she has fled. The machinery of complaint to the Court is thus subsidiary to national systems safeguarding human rights. The Court must be satisfied, however, 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 third States, agencies of the United Nations and reputable non-governmental organisations. 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 and, as a general rule, it is for those courts to assess the evidence before them. 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 (see F.G., cited above, §§ 117 and 118).
18. The Court notes that it has recently held that there is not a general situation of violence in Afghanistan which would imply a real risk of ill‑treatment simply by virtue of an individual being returned there (see A.M. v. the Netherlands, no. 29094/09, § 87, 5 July 2016).
19. Turning to the applicants’ individual reasons for requesting protection in the present case, the Court sees no ground to depart from the conclusions drawn by the domestic authorities concerning the credibility of the first applicant’s statements, conclusions which were reached following a sufficiently thorough examination of all the relevant and available information, including relevant country of origin information. The first applicant was heard in person both before the Migration Agency and the Migration Court. According to the Court, the domestic authorities’ decisions indicated sufficient reasons for their conclusion that the first applicant’s statements lacked credibility (see paragraphs 4-7 above).
20. Furthermore, it finds no indication that the proceedings before those authorities lacked effective guarantees to protect the applicants against refoulement or that they were otherwise flawed. The applicants had the possibility to have the Migration Agency’s decision reviewed by a court and they were represented by public legal counsel throughout the proceedings.
21. The Court takes note of the copies of the documents which the applicants submitted after the application was lodged with the Court and which have never been submitted to the Swedish authorities. As concerns the second document relating to the first applicant’s father’s death, the Court notes that the Swedish authorities have never contested this fact.
22. Turning to the first document, which allegedly confirms X’s disappearance, the Court observes the following. The document contains two stamps which are dated with different years (1390 and 1392), that is one year before the disappearance of X (in 1391 according to the document) and one year after. The date of the disappearance (in 2012 according to the document) is furthermore not consistent with the applicants’ submissions before the domestic authorities, namely that X had disappeared in 2011. The Court cannot overlook these inconsistencies in the document and also notes that several parts of the document have not even been filled in, such as the case number. Moreover, the dates (which correspond to 2011 and 2013 in the Gregorian calendar) indicate that the document was issued before the applicants left Afghanistan and they should therefore have been able to submit it during the domestic proceedings.
23. In view of the above, the Court finds that the applicants have not made any submissions about circumstances, or provided any supporting documents, to lead it to depart from the domestic authorities’ conclusions. The Court therefore concludes that the applicants have failed to show that a return to Afghanistan would expose them to a real risk of being subjected to treatment contrary to Articles 2 or 3 of the Convention.
24. It follows that the complaint is manifestly ill-founded and must be declared inadmissible in accordance with Article 35 §§ 3 (a) and 4 of the Convention.
B. The applicants’ other complaints
25. The applicants also submitted various complaints under Articles 8, 9, 12 and 14 of the Convention as well as under Article 2 of Protocol No. 1 to the Convention, as set out above.
26. However, in the light of all the material in its possession, and in so far as the matters complained of are within its competence, the Court finds that they do not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols.
27. It follows that this part of the application is also manifestly ill‑founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.
28. In view of the above, it is appropriate to discontinue the application of Rule 39 of the Rules of Court.
For these reasons, the Court, unanimously,
Declares the application inadmissible.
Done in English and notified in writing on 12 January 2017.
Fatoş AracıDmitry Dedov
Deputy RegistrarPresident
Full & Egal Universal Law Academy