P.Z. AND OTHERS v. SWEDEN

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FIFTH SECTION

DECISION

Application no. 68194/10
P.Z. and Others
against Sweden

The European Court of Human Rights (Fifth Section), sitting on 29 May 2012 as a Chamber composed of:

Dean Spielmann, President,
Elisabet Fura,
Karel Jungwiert,
Boštjan M. Zupančič,
Mark Villiger,
Ganna Yudkivska,
Angelika Nußberger, judges,
and Claudia Westerdiek, Section Registrar,

Having regard to the above application lodged on 16 November 2010,

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 observations submitted by the respondent Government and the observations in reply submitted by the applicants,

Having deliberated, decides as follows:

THE FACTS

1. The applicants, a woman born in 1975 and her two children born in 1995 and 2004, are Afghan nationals. They are represented before the Court by Ms Rashin Forotan Fard, a lawyer practising in Gothenburg.

2. The Swedish Government (“the Government”) are represented by their Agent, Ms G. Isaksson, of the Ministry for Foreign Affairs.

A. The circumstances of the case

3. The facts of the case, as submitted by the first applicant, may be summarised as follows.

4. On 21 May 2007 she and her two children arrived in Sweden and applied for asylum. Her husband and their sons were at the time already in Sweden, where they had applied for asylum in 2005 but had not yet received a final decision in their case. Before the Migration Board (Migrationsverket) she asserted that she originated from the Khost province in south-east Afghanistan where the family had been living before they left Afghanistan. Also, she claimed that she had been living at several other places in Afghanistan. She belonged to the Zadran-Patrej clan and was a Sunni Muslim. She alleged that the main reason why she and her children had left Afghanistan was that her family had been persecuted by the Taliban and that her husband for several years had been in a conflict with the Taliban in the Samangan province. The applicant had been living in the Samangan province – where her husband had relatives and where he owned property – for several years but due to the conflict between the husband and the Taliban she had moved to her parents’ home in the Khost district. For two years she and her husband had also been living in the Nangarhar district, where her husband also owned property. She asserted that when her husband had left the country, the threats that had formerly been directed against her husband had instead been aimed against her and her daughter born in 1995. She had received death threats and the Taliban had visited her house on several occasions. Due to the threats from the Taliban she had never reported the incidents to the police. She claimed that the situation in Afghanistan, particularly for women, was very difficult. On 23 September 2007, after their asylum application had been rejected by the Swedish authorities, her husband and their two sons had been deported to Kabul. Before the Board she maintained that she was not aware of the whereabouts of her husband and their two sons after their deportation. Also, she asserted that her parents and her siblings had moved away from the area where they had used to live.

5. On 22 January 2008 the Migration Board rejected the applicants’ asylum claim and ordered that they be deported to Afghanistan. The Board first pointed out that a submitted document, which it had translated and which was alleged to be a threatening letter from the Taliban, had a low value as evidence and that there was reason to question its origins. The Board went on to examine the credibility of the first applicant’s story. It stated that she had given contradictory and undetailed information about her alleged stay in the Samangan and Nangarhar provinces. She had, for example, not been able to distinguish between the two provinces which, according to the Board, was remarkable as the provinces were located in different parts of the country. The allegation that she was illiterate was, in the Board’s view, not sufficient to explain the shortcomings in her story in this regard. The Board also noted that she had not been able to explain how the Taliban had been able to find her in the Khost province and that her story about the threats she had received lacked credibility. She had informed the Board that she had been in contact with her father during her stay in Sweden and that he had informed her that the family had received more threatening letters. However, during the interview she had changed her story by saying that she had not been in contact with her father and, therefore, was not aware of whether the family had received any threatening letters. The Board further held that her husband’s asylum claim had been rejected and that there was no reason to make another assessment regarding the individual circumstances in the applicants’ case. As to the general security situation in Afghanistan, the Board pointed out that it had recently deteriorated and that the country information indicated that the most serious security situations prevailed in the south and south-east provinces of Afghanistan. Having regard to the recent country information, the Board found that it would not be possible for people originating from the Khost province to return there due to the instability in the area. Thus, it went on to examine whether it would be possible for the applicants to return to any other parts of Afghanistan. In regard to the Nangarhar province, where the first applicant had been living for two years, it pointed out that many of the districts in the province were too unsafe but that the Shinwar district, where her husband had owned property, was a secure place for them to return to. As concerns the Samangan province, where the first applicant allegedly had been living for five to six years and where her husband also owned property and had relatives, the Board held that it provided a safe place for returns as well. As to the question of whether there were any other places to which the applicants could return, the Board stated that the country information did not provide a uniform view regarding the possibilities to relocate internally in Afghanistan. However, the Board pointed out that the United Nations High Commissioner for Refugees (UNHCR), Sweden and Afghanistan had signed an agreement in December 2007 aiming to help failed asylum seekers upon their return to Afghanistan. Having regard to this and the security situation in Kabul, the Board found that, since the first applicant’s husband and sons were living there, the applicants could, as a reasonable alternative, reunite with their family in Kabul.

6. On 30 June 2008 the Migration Court (Migrationsdomstolen) upheld the Board’s decision. It reiterated that the situation for women without a social network in Afghanistan could be very difficult. It pointed out that since the first applicant’s husband and their two sons had already been deported to Kabul, where the security situation had improved, the applicants would have a social network if they returned there. As the applicants had not given a sufficient explanation why they would not be able to live in Kabul, the court rejected the appeal.

7. On 8 September 2008 the Migration Court of Appeal (Migrations-överdomstolen) refused leave to appeal.

8. Subsequently, the applicants applied to the Migration Board for a review of the enforcement of the deportation order, claiming that there were impediments to enforcement. They submitted the following. The first applicant would risk being killed since she had refused to marry a Taliban leader. The same would happen to her daughter born in 1995 if she did not agree to the Taliban requirements about marriage. Furthermore, she asserted that she did not intend to live with her husband any more. She also claimed that she had no relatives in Afghanistan and that her mother-in-law in Sweden was sick and, thus, in need of her help. On 19 November 2008 the Migration Board refused to review the case as no new circumstances warranting a review had been forthcoming.

9. In appealing to the Migration Court, the first applicant asserted that she had not been in contact with her husband since December 2007, that she no longer had a relationship with him and that she had no intention of living with him in the future. She also claimed that her husband had been arrested by the Taliban. On 23 December 2008 the Migration Court upheld the Board’s decision.

10. In a subsequent application for review of enforcement, the first applicant asserted that she had a relationship with a man in Sweden. She claimed that she had become pregnant but that she had had an abortion. These were circumstances which, according to her, had come to the attention of her parents who, in a letter to her, had stated that they rejected her. Furthermore, she held that her brother had in vain made an attempt to force her to have sex with him and that instead he had assaulted her and threatened to use his contacts in Afghanistan to take revenge on her. She repeated that she and her daughter would risk being forcibly married off upon return to Afghanistan.

11. On 8 April 2009 the Migration Board again refused to review the case because of a lack of new relevant circumstances. It found that the assertion that she had lost contact with her husband in Afghanistan did not in itself constitute a further risk for her. It also noted that the risk for the first and second applicants to be forcibly married off was mere speculation. Regarding the submitted letter which allegedly was from her family in Afghanistan, the Board held that it had a low value as evidence due to its simple character and because it had not been substantiated that the parents had written the letter. The claim that her brother would have involved relatives in Afghanistan to take revenge on her when she had refused to have sex with him seemed unlikely, according to the Board, especially since incest was regarded as a disgrace in Afghanistan. Furthermore, it pointed out that she had not substantiated that the alleged relationship with the man in Sweden would constitute a threat in Afghanistan.

12. The first applicant appealed to the Migration Court and asserted, inter alia, that she no longer lived with the man in Sweden due to her fear that someone would see her with him. She also informed the court that she had received threatening text messages on her mobile phone. The court held that the alleged messages could not be verified in a satisfactory way and, therefore, had limited value as evidence. It also stressed that the allegation that her relationship with a man in Sweden had come to the knowledge of her family was vague and mere speculation. Thus, on 2 July 2009, the Migration Court upheld the Board’s decision.

13. On 25 September 2009 the Migration Court of Appeal refused leave to appeal against the Migration Court’s decision of 2 July 2009.

14. By a decision of 22 April 2010 the Migration Board rejected yet another application for review of enforcement on the same ground as its previous refusals to review the case.

15. On 12 May 2010 the Migration Court upheld the Board’s decision and on 11 June 2010 the Migration Court of Appeal refused leave to appeal.

16. On 28 February 2011 the President of the Fifth Section decided, in the interests of the parties and the proper conduct of the proceedings before the Court, to indicate to the Government of Sweden, under Rule 39 of the Rules of Court, that the applicants should not be deported to Afghanistan until further notice.

B. Relevant domestic law

17. 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”).

18. 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).

19. 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.

20. 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).

21. 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 this 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).

22. 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).

COMPLAINT

The applicants complain under Article 3 of the Convention that, if returned from Sweden to Afghanistan, they would face a real risk of being persecuted since the first applicant has dishonoured her family as well as her husband and his family in Afghanistan due the extramarital relationship she has with a man in Sweden. They further claim that they would risk being subjected to inhuman and degrading treatment in Afghanistan since the first applicant’s family has disowned her and therefore they would have no social network or male protection. In this respect, they invoke the deteriorated security situation and the difficult humanitarian conditions for women in Afghanistan.

THE LAW

23. The applicants complain that, if deported to Afghanistan, they would risk treatment in contravention of Article 3 of the Convention. This provision reads as follows:

“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”

A. The Government’s objection under Article 35 § 1 of the Convention

24. The respondent Government contend that the application is inadmissible for failure to comply with the six-month rule under Article 35 § 1 of the Convention which, in its relevant parts, provides the following:

“The Court may only deal with the matter ... within a period of six months from the date on which the final decision was taken.”

25. The Government argue that domestic remedies were exhausted on 8 September 2008, when the Migration Court of Appeal refused leave to appeal. The decision to deport the applicants thereby became final and they were obliged to leave Sweden. However, they only applied to the Court on 16 November 2010, thus about 20 months after the expiry of the six-month time-limit. The Government assert that, although cases concerning deportation of aliens involve allegations of risk of treatment in breach of Article 2 or 3 of the Convention, the importance of the case does not absolve an applicant from complying with the requirements under Article 35. In this respect, they point out that the six-month rule is closely linked to the rule on exhaustion of domestic remedies.

26. The applicants disagree with the Government’s position and assert that the application should be declared admissible. They argue that the decision of the Migration Court of Appeal of 11 June 2010, concerning their third application for review of enforcement, should be considered as the final decision in the case and that, consequently, they have complied with the six-month time-limit under Article 35 § 1.

27. At the outset, 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, Soering v. the United Kingdom, judgment of 7 July 1989, Series A no. 161, pp. 35-36, § 91; and Saadi v. Italy [GC], no. 37201/06, §§ 124-125, ECHR 2008-...).

28. The Court is therefore called upon to assess the situation in the receiving country in the light of the requirements of Article 3. Nonetheless, there is no question of adjudicating on or establishing the responsibility of the receiving country, whether under general international law, under the Convention or otherwise. In so far as any liability under the Convention is or may be incurred, it is liability incurred by the Contracting State, by reason of its having taken action which has as a direct consequence the exposure of an individual to the risk of proscribed ill-treatment (see Soering v. the United Kingdom, cited above, § 91; Mamatkulov and Askarov v. Turkey [GC], nos. 46827/99 and 46951/99, § 67, ECHR 2005-I; and Saadi v. Italy, cited above, § 126).

29. With regard to the material date, the Court has on many occasions stressed that the existence of the risk must be assessed primarily with reference to those facts which were known or ought to have been known to the Contracting State at the time of expulsion. However, if the applicant has not yet been extradited or deported when the Court examines the case, the relevant time will be that of the proceedings before the Court (see, for instance, Chahal v. the United Kingdom judgment of 15 November 1996, Reports 1996-V, §§ 85 and 86, and Venkadajalasarma v. the Netherlands, no. 58510/00, § 63, 17 February 2004). Accordingly, while it is true that historical facts are of interest in so far as they shed light on the current situation and the way it is likely to develop, the present circumstances are decisive (see Saadi v. Italy, cited above, § 133).

30. It follows from the above considerations that, in cases where it is alleged that the removal of a person to another country will expose him or her to a risk of irreparable harm in violation of Article 3, it is the actual removal that triggers the responsibility under the Convention, as the direct consequence of this action is that the sending State exposes the person to the risk in question (see, mutatis mutandis, Maslov v. Austria [GC], no. 1638/03, § 93, ECHR 2008-...). The situation in the receiving country as well as the personal circumstances of the individual concerned may change between the date of the decision ordering the removal and the date of enforcement of that decision. Consequently, in examining complaints under Article 3, the Court has frequently taken into account facts postdating the removal order.

31. Thus, in this type of case, as opposed to most other cases brought before the Court, the potential violation of the Convention does not occur by virtue of the final decision by the relevant national authority or court but through the enforcement of this decision. If, for whatever reason, the individual concerned is not removed from the territory of the respondent State, the responsibility of that State under Article 3 does not arise. This is reflected in the wording of the Court when it has found violations in cases of deportation, expulsion, extradition and the like, having concluded that the enforcement of a removal order would involve a violation of the Convention, thus referring to a potential violation occurring at the time of the implementation of the removal order (see, for example, Soering v. the United Kingdom, cited above, p. 35, § 90, and p. 44-45, § 111).

32. By the same token, a State may refrain from enforcing a removal order, thereby avoiding its responsibility under the Convention. In this respect, the Court notes that such decisions, based on new circumstances, may be taken by the Swedish authorities under Chapter 12 of the 2005 Act even if a deportation order against an alien has gained legal force.

33. Turning to the application of the six-month rule under Article 35 § 1 of the Convention, the Court recently summarised the relevant principles in the case of Varnava and Others v. Turkey ([GC], no. 16064/90, ECHR 2009‑...). It stated as follows:

“157. As a rule, the six-month period runs from the date of the final decision in the process of exhaustion of domestic remedies. Where it is clear from the outset however that no effective remedy is available to the applicant, the period runs from the date of the acts or measures complained of, or from the date of knowledge of that act or its effect on or prejudice to the applicant (Dennis and Others v. the United Kingdom (dec.), no. 76573/01, 2 July 2002). Nor can Article 35 § 1 be interpreted in a manner which would require an applicant to seize the Court of his complaint before his position in connection with the matter has been finally settled at the domestic level. Where, therefore, an applicant avails himself of an apparently existing remedy and only subsequently becomes aware of circumstances which render the remedy ineffective, it may be appropriate for the purposes of Article 35 § 1 to take the start of the six-month period from the date when the applicant first became or ought to have become aware of those circumstances (see Paul and Audrey Edwards v. the United Kingdom (dec.), no. 46477/99, 4 June 2001).

...

159. Nonetheless it has been said that the six month time-limit does not apply as such to continuing situations (see, for example, Agrotexim Hellas S.A. and Others v. Greece, no. 14807/89, Commission decision of 12 February 1992, DR 71, p. 148, and Cone v. Romania, no. 35935/02, § 22, 24 June 2008); this is because, if there is a situation of ongoing breach, the time-limit in effect starts afresh each day and it is only once the situation ceases that the final period of six months will run to its end. ...”

34. While, accordingly, the date of the final domestic decision providing an effective remedy is normally the starting-point for the calculation of the period of six months, the Court reiterates what has been stated above (at § 30), that the responsibility of a sending State under Article 3 of the Convention is, as a rule, incurred only at the time when the measure is taken to remove the individual concerned from its territory. Specific provisions of the Convention should be interpreted and understood in the context of other provisions as well as the issues relevant in a particular type of case. The Court therefore finds that the considerations relevant in determining the date of the sending State’s responsibility must be applicable also in the context of the six-month rule. In other words, the date of the State’s responsibility under Article 3 corresponds to the date when the six-month period under Article 35 § 1 starts to run for the applicant. If a decision ordering a removal has not been enforced and the individual remains on the territory of the State wishing to remove him or her – as is the scenario when the Court examines an application and its indication under Rule 39 of the Rules of Court has been respected by the respondent State – the six-month period has not yet started to run. This situation, involving an ongoing potential violation of the Convention, thus resembles the continuing situations described in Varnava and Others v. Turkey (cited above, § 159).

35. In the present case, the decision to refuse the applicants residence permits and to deport them to Afghanistan gained legal force on 8 September 2008, when the Migration Court of Appeal refused them leave to appeal. They introduced the present application to the Court on 16 November 2010, thus more than two years after the final national decision. However, at the time of the introduction of the application, the deportation order had not been enforced and the applicants remained in Sweden. Following the Court’s indication under Rule 39, this situation has not changed.

36. It follows that the six-month period has not started to run in the present case and that, consequently, the applicants have not failed to comply with Article 35 § 1 of the Convention. The Government’s objection must therefore be rejected.

B. The Government’s objection under Article 35 § 3 of the Convention

37. The Government further maintain that the application should be declared inadmissible for being manifestly ill-founded under Article 35 § 3 of the Convention. They claim that the first applicant has provided contradictory, vague and imprecise information throughout the asylum procedure and that documents submitted to the Court after the application was communicated to the Government for observations raise doubts regardring her citizenship, indicating that she is a Pakistani and not an Afghan national. Consequently, no substantial grounds have been shown for believing that the applicants would be exposed to a real risk of treatment in breach of Article 3 of the Convention.

38. The Court finds that this issue is closely linked to the merits of the case. It therefore decides to join this objection to the merits.

39. No other ground for declaring the application inadmissible has been invoked or established. The Court concludes, therefore, that the application should be declared admissible.

For these reasons, the Court by a majority

Declares the application admissible, without prejudging the merits of the case.

Claudia WesterdiekDean Spielmann
RegistrarPresident

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