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Article 3 of the European Convention on Human Rights
in the Light of the Case R.H. v. Sweden,
Application No. 4601/14, 10.09.2015

R.H. / İsveç Kararı Işığında Avrupa İnsan Hakları Sözleşmesi’nin 3. Maddesi, Başvuru No. 4601/14, 10.09.2015

Nikolas VOGT

On 10.09.2015 the European Court of Human Rights (The Court) gave judgment in its case R.H. v. Sweden. The applicant is a Somali woman, which had applied for asylum. She rested her case on the situation in Somalia and especially the dire situation she would face upon return, as she had fled a forced marriage and could no longer rely on a family network. A deportation to Somalia would therefore in her view amount to a breach of Article 3 ECHR. The Court outlines the general principles of Article 3 ECHR in the context of deportations to then examine the situation in Mogadishu. When assessing the situation, the Court cites several reports and relies on its own judgments. In conclusion the Court finds that a deportation of a lone woman to Mogadishu would indeed amount to a breach of Article 3 ECHR. The Court then follows the argumentation by the Swedish authorities, which highlighted some discrepancies in the applicant’s claims, and lastly denies her credibility. The Court therefore holds that the deportation of the applicant would not give rise to a violation of Article 3 ECHR. Two judges issued a dissenting opinion, which I join in a personal opinion.

Art. 3 ECHR, Non-Refoulment, Somalia, Asylum, Deportation.

10.09.2015 tarihinde, Avrupa İnsan Hakları Mahkemesi (AİHM) R.H. / İsveç davası hakkında karar vermiştir. Başvuran, iltica talebinde bulunan Somalili bir kadındır. Davasını, Somali’deki duruma ve özellikle de zorla evlilikten kaçması nedeniyle artık bir aile bağına sahip olmadığı için geri döndüğünde karşılaşacağı duruma dayandırmıştır. Dolayısıyla, Somali’ye gönderilmek üzere sınırdışı edilmesi, onun görüşüne göre AİHS’nin 3. maddesinin ihlali anlamına gelmektedir. AİHM, sınır dışı etme bağlamında Mogadişu’daki durumun incelenebilmesi için AİHS’in 3. maddesinin genel prensiplerini özetlemiştir. Durum değerlendirilirken, AİHM birçok rapora yer vermiş ve kendi kararlarına dayanmıştır. Sonuç olarak Mahkeme, yalnız bir kadının Mogadişu’ya sınır dışı edilmesinin gerçekten de AİHS’in 3. maddesinin ihlali anlamına geldiğini tespit etmiştir. Mahkeme, daha sonra başvuranın iddialarında bazı tutarsızlıkların altını çizen ve son olarak iddiaların güvenilirliğini reddeden İsveç makamları tarafından yapılan tartışmaya yer vermiştir. Mahkeme, bu nedenle, başvuranın sınır dışı edilmesinin AİHS’in 3. maddesinin ihlaline yol açmayacağına karar vermiştir. İki hakim benimde kişisel görüş olarak katıldığım karşı oy kullanmışlardır.

AİHS md. 3, Geri Göndermeme İlkesi, Somali, İltica, Sınır Dışı Etme.

The Case

The applicant was born in Somalia in 1988. She left Somalia in August 2005 and fled towards Europe, first arriving in Italy, where she applied for asylum. The applicant then moved on to the Netherlands, where she again applied for asylum in December 2006, before finally arriving in Sweden in 2007. Out of fear of being deported, the applicant only applied for asylum in Sweden in December 2011. This first application, however, was rejected and the applicant was to be deported back to Italy; due to complications between Swedish and Italian authorities, this deportation could not be enforced and the applicant applied again for asylum in November 2012. During her asylum proceedings the applicant inter alia claimed a forced marriage to be the reason of her flight, into which she was forced in 2004. A first attempt to escape her situation supposedly ended in Mogadishu, where she and the boy with whom she formed an actual intimate relationship with and who later died crossing the Mediterranean, were discovered and brutally beaten by her uncles. From these abuses she suffered grave hip injuries, which could, she claims, not be treated properly in Somalia. She further claims that she would be forced to return to her “husband” upon deportation, where she would face further mistreatment or even death by the hand of her uncles. After both her parents died in 2010/11, she would furthermore lack a male support network in Somalia, rendering her to an existence as a social outcast, constantly in danger of sexual assaults, unable to rent accommodation or otherwise organize her life independently in Somali society. The Swedish authorities, however, rejected her application for asylum and ordered her deportation to Somalia. In their view, the applicant failed to substantiate her identity, as she could not submit any identification documents and applied for asylum under different names in Italy and the Netherlands. Further inconsistencies between her different applications, especially regarding her forced marriage, undermined the applicant’s credibility in the authorities’ view, which in consequence denied her asylum also in the later appeal stages.

General Principles

In its judgment the Court underlines once again its settled case-law that the Contracting States of the ECHR have the right to control the entry, residence and also the expulsion of aliens.1 It is to be noted that the Convention itself does not contain the right to asylum2 , the only direct reference to expulsions being Art. 3 and 4 of Protocol No. 4 to the Convention, which prohibit the expulsion of a State’s own nationals and the collective expulsion of aliens. It is, however, also settled case-law of the Court that a Contracting State violates Article 3 ECHR if it deports a person, when substantial grounds have been shown for believing that the person concerned, if deported, faces a real risk of being subjected to treatment contrary to Article 3 ECHR.3 In such cases Article 3 ECHR implies an obligation not to deport the person in question.4 In order to thoroughly establish whether there are substantial grounds for believing that the concerned person would face such a risk upon deportation, the Court has to assess the conditions in the receiving country against the standards of Article 3 ECHR5 The alleged ill-treatments the concerned person would face upon return must attain a minimum level of severity; all relevant circumstances of the case have to be taken into account when assessing if said level is reached.6 Due to the absolute nature of the right guaranteed, Article 3 ECHR may also apply in cases, in which the risk of ill-treatment emanates from persons or groups who are not public officials7 It is in principle the obligation of the concerned person to adduce evidence proving that there are substantial grounds for believing that he/she would be exposed to a risk of ill-treatment contrary to Article 3 ECHR upon return8 ; where such evidence is adduced, it is for the Government of the Contracting State to dispel any doubts about it.9 Due to the special situations the concerned persons, usually asylum seekers, often find themselves in, the Court acknowledges that it is frequently necessary to give them the benefit of the doubt when assessing their statements and reports.10 Once the existence of a real risk of ill-treatment is established, a deportation of the concerned person would necessarily be a violation of Article 3 ECHR, “regardless of whether the risk emanates from a general situation of violence, a personal characteristic of the applicant, or a combination of the two.”11 A general situation of violence, however, can by itself only give rise to such a risk in “most extreme cases”, in which there was a real risk of ill-treatment simply by virtue of an individual being exposed to such a situation on return.12

Application to the Case

Having established in broad outlines the aforementioned general principles of Article 3 in this context13 , the Court continues to apply these on the case at hand. Firstly the Court concluded that the applicant originates from Mogadishu and would, upon deportation, be sent back there, without having to enter other parts of Somalia. It therefore narrows down its scope to the situation in Mogadishu. For the third time the Court is tasked to examine the situation there, after already doing so in the cases of Sufi and Elmi v. UK14 in 2011 and K.A.B. v. Sweden15 in 2013. After respectively measuring the general situation in Mogadishu with the criterions established by the United Kingdom Asylum and Immigration Tribunal16 to find whether the possible risk would amount to a “most extreme case”, the Court does indeed see such a case in Sufi and Elmi v. UK.17 In K.A.B. v. Sweden, however, the Court finds that the situation in Mogadishu improved and no longer sees a “most extreme case” and therefore focusses on the individual situation of the applicant to establish whether he would face a risk of ill-treatment.18 Based on that finding, the Court turns to the present situation in Mogadishu and asks if the situation has worsened since K.A.B. v. Sweden. Citing a number of reports from various institutions, the Court carefully examines the situation the applicant would find herself in after deportation: First reference is given to a report of the UNHCR from January 201419 , which finds that although the overall situation had improved during the preceding years, al-Shabaab were still able to stage attacks in Mogadishu every week and that Somali-Government and allied forces failed to provide protection or security to civilians, while often being sources of insecurity themselves. These findings are supported by the report of the Swedish Migration Board following a fact-finding-mission in October 2013 and again in October 2014, which was updated and confirmed in April 2015.20 The Swedish Migration Board especially points out the difficulties arising from the various militias and armies fighting each other and the dire situation lone women face without a male network in Somali society, which is divided among clan-affiliations and adheres to the customary law system of Xeer. Further citing reports from the UN Secretary-General from May 201521 and the country guidance determination on Somalia from the United Kingdom Upper Tribunal in MOJ & Ors22, which both confirm that the overall level of violence, while still being volatile, went down, especially after al-Shabaab further withdrew from Mogadishu, the Court concludes that the findings in K.A.B. v. Sweden are still valid and that the situation in Mogadishu does not amount to a “most extreme case” in 2015.23 It was therefore necessary for the Court to further assess the individual situation of the applicant. The Court stresses that the profile of the applicant in the case at hand is different from that of the applicant in K.A.B. v. Sweden, the latter being a man born in 1960, the first being a young woman born in 1988. Citing again from various reports, the Court carefully and thoroughly establishes the immense danger of sexual violence that women in Somalia face from numerous directions and sources.24 In conclusion, the Court explicitly finds that “it may be concluded that a single woman returning to Mogadishu without access to protection from a male network would face a real risk of living in conditions constituting inhuman or degrading treatment under Article 3 of the Convention.25

In a rather surprising turn the Court then poses the question, if the applicant is, indeed, a single woman facing return to Mogadishu without access to a male network. The Court closely follows the Swedish government’s argumentation26 when analyzing the applicant’s statements. While the Court does not pay great attention to the slightly different names used by the applicant in her applications in Italy, the Netherlands and Italy, it stresses that the applicant stayed in Sweden for at least four years without contacting the authorities about applying for asylum, thusly showing that she was not in need of protection. Her claim that she feared a deportation to Italy under the Dublin Regulation is rejected as unconvincing by the Court.27 Further perceived inconsistencies between the different applications for asylum, regarding in particular her familial situation, her forced marriage and the threats she would face upon return28 finally lead the Court to the conclusion that the applicant would not face a real risk of treatment contrary to Article 3 ECHR if returned to Mogadishu.29

The Court therefore holds by five votes to two, that the deportation of the applicant to Mogadishu would not give rise to a violation of Article 3 ECHR.