In today’s two ECtHR judgments, in the cases of A.A. v. France and A.F. v. France, the ECtHR held, unanimously, that there would be a violation of Article 3 (prohibition of torture and inhuman or degrading treatment) of the ECHR if the applicants were deported to Sudan.
The cases concerned proceedings to deport to Sudan two Sudanese nationals – A.A., from a non-
Arab tribe in Darfur, and A.F., from South Darfur and of Tunjur ethnicity – who had arrived in France
With regard to the general context, the Court had recently observed that the human-rights situation
in Sudan was alarming, in particular where political opponents were concerned, and that merely
belonging to a non-Arab ethnic group in Darfur gave rise to a risk of persecution. The Court noted
that the situation had deteriorated further since the beginning of 2014.
The Court found in both cases, that included rejections of the applicants’ asylum applications by the French authorities, that were the orders to deport the applicants to Sudan to be enforced, the applicants would, on account of their individual circumstances, run a serious risk of incurring treatment contrary to Article 3 of the Convention.
Court’s press release:
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.”
F. G. v. Sweden, 16 January 2014
“32. The Court reiterates that the Contracting States have the right as a matter of international law and subject to their treaty obligations, including the Convention, to control the entry, residence and expulsion of aliens. However, expulsion 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 concerned, if expelled, faces a real risk of being subjected to treatment contrary to Article 3. In such a case, Article 3 implies an obligation not to expel the person in question to that country (Saadi v. Italy [GC], no. 37201/06, § 125, ECHR 2008).
33. The assessment of whether there are substantial grounds for believing that the applicant faces such a real risk inevitably requires the Court to assess the conditions in the receiving country against the standards of Article 3 of the Convention (Mamatkulov and Askarov v. Turkey [GC], nos. 46827/99 and 46951/99, § 67, ECHR 2005-I). These standards imply that the ill-treatment the applicant alleges he or she will face if returned must attain a minimum level of severity if it is to fall within the scope of Article 3. The assessment of this is relative, depending on all the circumstances of the case (Hilal v. the United Kingdom, no. 45276/99, § 60, ECHR 2001-II).
34. Moreover, the Court acknowledges that, owing to the special situation in which asylum seekers often find themselves, it is frequently necessary to give them the benefit of the doubt when it comes to assessing the credibility of their statements and the documents submitted in support thereof. However, when information is presented which gives strong reasons to question the veracity of an asylum seeker’s submissions, the individual must provide a satisfactory explanation for the alleged discrepancies (see, inter alia, Collins and Akaziebie v. Sweden (dec.), no. 23944/05, 8 March 2007, and N. v. Sweden, no. 23505/09, § 53, 20 July 2010). In principle, the applicant has to adduce evidence capable of proving that there are substantial grounds for believing that, if the measure complained of were to be implemented, he would be exposed to a real risk of being subjected to treatment contrary to Article 3 of the Convention. Where such evidence is adduced, it is for the Government to dispel any doubts about it (see NA. v. the United Kingdom, no. 25904/07, § 111, 17 July 2008).
35. Thus, in order to determine whether there is a risk of ill-treatment, the Court must examine the foreseeable consequences of sending the applicant to Iran, bearing in mind the general situation there and his personal circumstances (see Vilvarajah and Others v. the United Kingdom, 30 October 1991, § 108 Series A no. 215).
36. The above principles apply also in respect to Article 2 of the Convention (see, for example, Kaboulov v. Ukraine, no. 41015/04, § 99, 19 November 2009). The Court therefore finds that the applicant’s complaints under Articles 2 and 3 of the Convention are indissociable and it will therefore examine them together.
37. The Court notes that the applicant’s request for asylum was carefully examined by the domestic authorities. There are no indications that these proceedings lacked effective guarantees to protect the applicant against arbitrary refoulement or were otherwise flawed. The Court will therefore continue by examining whether the information presented before it could lead it to depart from the domestic authorities’ conclusions.
38. As regards the applicant’s political activities in Iran, the Court observes that he has claimed, inter alia, that he participated in the campaign for the opposition before and during the elections in 2009, that he worked with persons who were known to be opposed to the regime and that his work mainly entailed creating and publishing web pages. The Court finds that no information has emerged to indicate that the applicant’s political activities and engagement were anything more than peripheral. Furthermore, the Court notes that the domestic authorities considered that the applicant’s statements concerning his political activities were vague and lacking in details. The Court can see no reason to deviate from this assessment. Even at this late juncture, the applicant has failed to submit any detailed description of the webpages in question and their alleged critical content. Furthermore, and as the Government have underlined, the applicant has not submitted anything, apart from his own statements, to substantiate the existence of these web pages.
39. The Court also notes that the applicant has claimed that he was able to work with the web pages that contained the critical material until the elections in 2009. In other words, he was able to continue to publish material which was critical of the regime until the elections in 2009, even though he had been questioned in 2007 and despite the Iranian authorities being aware of his activities. The Court finds this remarkable, especially given that the applicant has stated that the material he had in his possession in 2007 did not differ from the material he had in his possession in 2009.
40. Furthermore, the Court observes that the applicant has not been summoned to appear before the Revolutionary Court since November 2009. It is also noted that the applicant has stated that his family in Iran has not been targeted because of his political activities. Lastly, it is observed that the applicant has not claimed to have continued his political activities following his arrival in Sweden.
41. As regards the applicant’s conversion, the Court observes that the applicant expressly stated, before the domestic authorities, that he did not wish to invoke his religious affiliation as a ground for asylum, since he felt that this was a private matter. The Court notes that the applicant had the opportunity to raise the question of his conversion during the oral hearing before the Migration Court but chose not to. This stance ultimately changed when the expulsion order against him became enforceable. Moreover, the applicant has claimed that he converted to Christianity only after arrival in Sweden and he has kept his faith a private matter. Against this background, and apart from the possible publication of the applicant’s image in connection with broadcasted church services, the transmission of which to the Iranian authorities is merely speculative, the Court finds that there is nothing to indicate that the Iranian authorities are aware of his conversion. Consequently, the Court considers that the applicant would not face a risk of ill‑treatment by the Iranian authorities on this ground.
42. In conclusion, the Court considers that the applicant has failed to substantiate that, if returned to Iran, he would face a real and concrete risk of being subjected to treatment contrary to Article 2 or 3 of the Convention. Consequently, his expulsion to Iran would not involve a violation of Article 2 or 3.”
New ECtHR judgment casting doubt on evidence evaluation and reasoning by French authorities in asylum cases
In the case of N.K. c. France, 19 December 2013, the Court cast again, similarly to the case of K.K. c. France, 10 October 2013, doubts on the assessment by the French authorities of persecution-related evidence and on the reasoning of the relevant décisions:
“44. Le requérant allègue avoir fui en raison des violences et persécutions subies de la part de sa famille et des autorités du fait de sa conversion à la confession ahmadie. Il dit être toujours recherché au Pakistan.
45. La Cour constate, tout d’abord, que le requérant présente un récit circonstancié et étayé par de nombreuses pièces documentaires, dont son acte de conversion, son acte de mariage attestant que chacun des mariés est de confession ahmadie, un mandat d’arrêt du 27 juillet 2009 et des copies de plaintes déposées contre lui. Elle observe que les documents produits tendent à corroborer les faits exposés. Elle note toutefois les réserves émises par le Gouvernement, au regard des décisions de l’OFPRA et de la CNDA, quant à la crédibilité du récit du requérant. La Cour relève qu’en l’espèce, les éléments apportés par le requérant – tant son récit que les preuves documentaires – furent écartés par les autorités au moyen de motivations succinctes. L’OFPRA, en premier lieu, a rejeté la demande d’asile, sans même avoir entendu le requérant, au seul motif que ses déclarations écrites étaient sommaires, peu crédibles et dénuées de précision personnalisée et argumentée. Statuant en appel, la CNDA s’est limitée à affirmer que les pièces du dossier ne présentaient pas de garanties d’authenticité suffisantes et qu’elles ne permettaient pas de tenir pour établis les faits allégués. Saisis à l’occasion de la demande de réexamen, l’OFPRA et la CNDA se sont bornés à indiquer que les faits allégués ne pouvaient être considérés comme nouveaux. Il en résulte que la Cour ne trouve pas d’éléments suffisamment explicites dans ces motivations des instances nationales pour écarter le récit du requérant. Elle observe, par ailleurs, que le Gouvernement ne lui a soumis aucun élément mettant manifestement en doute l’authenticité des documents produits. Eu égard à ce qui précède, la Cour estime que le Gouvernement n’a pas apporté d’informations pertinentes donnant des raisons suffisantes de douter de la véracité des déclarations du requérant quant aux événements à l’origine de son départ et, partant, qu’il n’existe aucune raison de douter de la crédibilité de ce dernier. Dès lors, il ne saurait être attendu du requérant qu’il prouve plus avant ses dires et l’authenticité des éléments de preuve par lui fournis.
46. La question demeure de savoir si le requérant court le risque de subir des mauvais traitements en cas de retour. Pour établir ce risque, le requérant produit notamment les rapports d’enquête préliminaire établis à la suite des plaintes déposées à son encontre. Ces documents, dont le Gouvernement ne conteste pas l’authenticité, attestent, à tout le moins, de ce que la confession ahmadie du requérant est connue des autorités et qu’elle a donné lieu à des poursuites notamment du chef de blasphème. La Cour en conclut que le requérant est perçu par les autorités pakistanaises non comme un simple pratiquant de la confession ahmadie mais comme un prosélyte et, partant, qu’il possède un profil marqué susceptible d’attirer défavorablement l’attention des autorités en cas de retour sur le territoire.
47. En conséquence, la Cour considère que, faute pour le Gouvernement de parvenir à mettre sérieusement en doute la réalité des craintes du requérant et compte tenu du profil de ce dernier et de la situation des Ahmadis au Pakistan, le renvoi du requérant vers son pays d’origine l’exposerait, au vu des circonstances de l’espèce, à un risque de mauvais traitements au regard de l’article 3 de la Convention.”