Information Note on the Court’s case-law 166
August-September 2013
I v. Sweden - 61204/09
Judgment 5.9.2013 [Section V]
Article 3
Chechen asylum-seekers fearing ill-treatment if returned to Russia: application not transmitted to the applicant’s State of origin for intervention
[NOTE THAT ART. 36 HAS NOT YET BEEN ADDED BY "IT" TO THE LIST OF ARTICLES AVAILABLE, BUT THIS WILL BE DONE SHORTLY - ART. 3 HAS BEEN USED TO REPLACE ART 36 TEMPORARILY, TO ALLOW PRE-PREPARATION OF CASE. DO NOT PUBLISH IN THE MEANTIME.]
Facts – The applicants, Russian nationals of Chechen origin, came to Sweden in 2007 and requested asylum. They alleged that they had left Russia under threat from the so-called “Kadyrov’s group”, which had arrested and tortured the first applicant on account of his having photographed and reported on the execution of villagers by Russian federal troops. The Migration Board refused their asylum request after finding that they failed to prove their identity and that their story was incoherent on several points. The Migration Court upheld that decision.
Law – Article 36: Taken together with Rule 44 § 1 (a) and (b) of the Rules of Court, Article 36 § 1 of the Convention allowed a member State to intervene in a case lodged with the Court by one of its nationals against another member State. The provision reflected the right of diplomatic protection which gave States an opportunity to protect their nationals in a situation where they suffered injury as a result of a breach of public international law by another member State. The question arose whether in the light of the spirit of the Convention a right to intervene applied in cases such as the present one, in which the applicants had been refused asylum and feared ill-treatment if returned to their State of origin. The preparatory works relating to Article 36 were silent in this respect and there appeared to be no specific case-law on the point either. The Court considered that, where nationals made allegations which prima facie could give rise to a potential breach of Articles 2 and 3 of the Convention in case of their return to a member State, that State would not appear objectively in a position to support its nationals before the Court. Moreover, Article 36 § 1 did not encompass a member State’s right to defend itself before the Court unless the applicants in their application claimed to be victims of a violation of their rights by that member State as well. Thus, the Court concluded that Article 36 § 1 did not apply in cases where the applicants’ reason for applying to the Court was fear of being returned to the relevant member State, which allegedly would subject them to a treatment contrary to Articles 2 and 3. Consequently, in such circumstances, applications were not transmitted to the applicants’ State of origin inviting their Government to intervene.
On the merits the Court found, by five votes to two, that the applicants’ deportation to Russian would give rise to a violation of Article 3.
Article 41: No claim made in respect of damage.
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This summary by the Registry does not bind the Court.
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