F.G. v. Sweden
The GC referral decision was taken on 2 June 2014. It is noted that the non-violation judgment of 16 January 2014 was taken by four judges while the other three issued a short but strong dissenting opinion concerning in particular the applicant’s conversion to Christianity and his fear of persecution in Iran:
“JOINT DISSENTING OPINION OF
JUDGES ZUPANČIČ, POWER-FORDE AND LEMMENS
We do not share the majority’s view that the proposed deportation of the applicant to Iran, if executed, would not engage the Respondent State’s obligations under Articles 2 and 3 of the Convention.
Whilst we have certain reservations about the consequences, for the applicant, of his prior political activities should he be returned to Iran, – noting, in particular, his claims of having been tortured there in 2007 – our main difficulty with the approach adopted by the majority is two-fold. Firstly, there is, in our opinion, an unacceptable failure to assess, thoroughly, the risk which the applicant faces arising from his conversion to Christianity. Secondly, insofar as the majority implies that any such risk, if it exists, could be avoided by the applicant’s concealment of his religious conversion, we consider that such a requirement is wholly unreasonable and no authority for such a proposition can be found in the case law of this Court.
There can be no real doubt that conversion to Christianity constitutes a serious human rights issue for any Iranian living in Iran. The Government accepts that conversion from Islam to Christianity is considered illegal under Islamic law and that it is punishable by death. It notes that those who have so converted suffer intense pressure and are subjected to serious human rights abuses on a regular basis. It recognizes that extra-judicial killings and attacks by official Islamic militias or radical groups are a serious cause for concern and it cites a number of cases in which Christian pastors have been imprisoned because of their beliefs. It concedes that converts who suffer persecution are unable to seek protection and redress from the authorities, acknowledging that on 22 September, 2010, the 11th Circuit Criminal Court of Appeals for the Gilan Province upheld the death sentence and conviction of Youcef Nadarkhani for apostasy. However, the Government also submits that as long as a person keeps his or her religious belief as a private matter, he or she does not generally run any risk.
Numerous reports of independent human rights bodies serve to corroborate what the Government has already accepted concerning Christian converts in Iran. To cite but one example, on 27 August 2013 the International Campaign for Human Rights in Iran reported that the eight-year prison sentence imposed on Christian convert Saeed Abedini had been upheld. In July 2011 while conducting a routine visit to a non-profit orphanage which his family helped to establish, the Iranian security forces arrested him and seized his passport. The Iranian courts convicted him of ‘undermining national security’ accusing him and other Christian converts of waging a ‘soft war’ against the Iranian government through their practice of Christianity in informal house churches.
Regrettably, reports of this nature are not isolated. Yet, despite the established and acknowledged risks facing Christian converts in Iran there is no proper assessment made either by the domestic authorities or by this Court of the risk which this applicant may face on account of his conversion to Christianity in the event that he were to be deported to Iran.
Firstly, at national level, the authorities have never, in fact, conducted any assessment whatsoever of this particular risk. In April 2010, the Migration Board noted that, initially, the applicant had been unwilling to refer to his religious affiliation as a ground for asylum. By use of the word ‘initially’, it is clear that at some point after the lodgment of his application the applicant had, indeed, put the fact of his conversion to Christianity in issue in his asylum proceedings. The Board, however, simply noted that he had not submitted a baptismal certificate and concluded, without any further assessment, that it was not plausible that the applicant would risk persecution in Iran due to his religious affiliation.
By the time the matter came before the Migration Court it was clear that the applicant was, indeed, raising his religious conversion as a risk factor that required to be assessed. He explained to the Migration Court why, at first, he had not wanted to refer to his religious affiliation citing his desire not to trivialize the seriousness of his belief. In view of the reference, at first instance, to the omission of any baptismal certificate, the applicant produced, promptly, to the Migration Court authentic evidence of his baptism. The certificate was dated 31 January 2010, indicating clearly, that his conversion to Christianity and his baptism had occurred prior to the first hearing of his application before the Migration Board. By offering a reasonable explanation for his initial reluctance to raise the issue of his conversion and by producing, promptly, a baptismal certificate when its absence was put in issue, it is clear that the applicant was raising before the Migration Court the matter of his conversion as a factor to which regard should be had in any assessment of his asylum claim.
Nevertheless, the majority’s judgment (§ 10) makes it clear that the Migration Court failed entirely to consider this factor or to ascribe any weight whatsoever thereto as a potential risk facing the applicant in assessing his claims under Article 3. In its judgment of 9 March 2011 the Migration Court is wholly silent on the applicant’s conversion to Christianity, focusing, exclusively, upon his political activities prior to his fleeing Iran. The failure of that court to consider in any way the applicant’s conversion to Christianity is a serious lacuna in its assessment of the applicant’s claim under Article 3.
When, subsequently, the applicant sought, specifically, to focus the authorities’ attention upon the risk arising from his conversion to Islam, the Migration Board rejected his request outright noting simply that his baptism and conversion had already been raised in the previous proceedings at domestic level. It was thus not considered to be a ‘new circumstance’.
The domestic authorities cannot have it both ways. Either they ought to have assessed the risk in the first round of proceedings once aware of the fact of the applicant’s conversion or such a risk required to be assessed as a ‘new circumstance’ when raised in the second asylum application. This want of a rigorous assessment of a serious and, potentially, life-threatening risk is inconsistent with what this Court has previously confirmed is required of domestic authorities when dealing with claims made under Articles 2 or 3 of the Convention. It was, indeed, such a lack of rigor that led the Court in the case of Z.N.S. v Turkey to find that the applicant’s deportation to Iran (which, in that case, also involved a conversion to Christianity) would be in violation of Article 3 of the Convention. The Court stated that it ‘was not persuaded that the national authorities conducted any meaningful assessment of the applicant’s claim’. We find likewise in the circumstances of this case.
There is another aspect of the majority’s reasoning that lies uneasily with respect for fundamental human rights. In § 41 of the judgment, the Court notes that the applicant had ‘kept his faith a private matter’. Against this background it concludes that there is nothing to indicate that the Iranian authorities are aware of his conversion and thus no risk for the applicant under Article 3 on this ground.
The majority appears to endorse, implicitly, the Government’s submission that for as long as the applicant does not bring his religious affiliation to the attention of the Iranian authorities by publicly practising his faith then, in all probability, no real risk should arise in the event of his deportation. This is a dangerous line of reasoning. Such an argument was rejected, unequivocally, by the Court of Justice of the European Union in its recent judgment in Bundesrepublik Deutschland v Y and Z. In that case, the Court addressed the question as to whether Article 2 (c) of Council Directive 2004/83/EC on minimum standards for the qualification and status of third country nationals or Stateless persons as refugees or as persons who otherwise need international protection and the content of the protection granted must be interpreted as meaning that an applicant’s fear of being persecuted is well-founded where such a person can avoid exposure to persecution in his country of origin by abstaining from certain religious practices. The Court noted that none of the rules laid down in the Directive stated that when assessing the extent of the risk of actual acts of persecution, it is necessary to take account of the possibility open to an applicant of avoiding the risk by abstaining from his or her religious practice in question and, consequently, renouncing the protection which the Directive is intended to afford to an applicant by conferring refugee status. The Court concluded:
It follows that, where it is established that, upon return to his country of origin, the person concerned will follow a religious practice which will expose him to a real risk of persecution, he should be granted refugee status, in accordance with Article 13 of the Directive. The fact that he could avoid that risk by abstaining from certain religious practices, is, in principle, irrelevant.
The same line of reasoning ought to apply when assessing a risk of persecution under Article 3. National authorities cannot reasonably expect from an applicant that he or she abstain from the exercise of the fundamental right to religious freedom and conscience in order to avoid treatment prohibited under Article 3.
For an asylum seeker to have to conceal his religious convictions if returned to his country of origin or to exercise reserve in the expression of his convictions was found by the Court of Justice to be ‘an unreasonable expectation’ and one that was not consistent with the law of the European Union. We consider that there is nothing under the case law of this Court which holds otherwise when it comes to the European Convention on Human Rights.”