ECtHR - X v. Sweden, Application No. 36417/16, 9 January 2018

Facts:

The applicant is a Moroccan National that arrived to Sweden and requested a temporary residence permit on the basis of his family ties in Sweden. The temporary residence permit was issued in 2005 and was made permanent in 2007.

On March 2016, the Swedish Security Service requested the Swedish Migration Agency the applicant’s expulsion. However, while the authorities were reviewing the expulsion request, the applicant applied for asylum. In his application, he argued that he would face a real and personal risk of being subjected to torture or other inhuman treatment if he were expelled to Morocco since he was considered a national security threat in Sweden and the Security Service had transmitted this information to the Moroccan authorities, therefore his expulsion would be in violation of his rights under Article 3 and 8 of the ECHR.

On April 2016, the Migration Agency revoked the applicant’s permanent residence, granted the Security Services’ request to expel him and at the same time, rejected his request for asylum and international protection arguing that his expulsion would not violate article 3 of the ECHR. According to the authority, the basis of such decisions were the following arguments: I) human rights situation in Morocco had improved significantly over the years II) the applicant’s lack of credibility, since the authorities found contradictions in the provided information and III) the applicant had not made out that he risked persecution upon return, as he travelled to Morocco on several occasions using his own passport, and he had never been arrested or questioned.

In response to the denial of his application and expulsion order, the applicant appealed the decision of the Agency. However, on June 2016 the Migration Court of Appeal confirmed the decision of the Agency.

On 13 September 2016 the Duty Judge of the ECtHR decided to apply Rule 39 of the Rules of Court (Interim Measure), indicating to the Swedish Government that the applicant should not be expelled to Morocco until further notice.

Subsequently on 22 September 2016, following the Rule 39 (Interim Measure), Sweden decided to stop the enforcement of the expulsion order until further notice.

Finally, on 3 November 2016 the complaint concerning violation of article 3 of the Convention was communicated to Sweden and the remainder of the measure was declared inadmissible.

Decision & reasoning:

In order to arrive to the decision mentioned above, the court’s reasoning was based on the following:

1. Relevant Country Information on Morocco

The UN Human Rights Committee issued the report UN CCPR/C/MAR/CO/6 dated 2 November 2016 where they claimed that Morocco made significant progress towards the strengthening of human rights, such as the implementation of a new constitution in 2011 and the ratification of the Optional Protocol to the Convention against Torture in 2014 which led to the reduction in such practices. However, there are still continuous reports of torture and cruel, inhuman or degrading treatment from the authorities. The Committee noted with particular concern that a) confessions obtained with torture are admitted as evidence despite the fact that Moroccan law foresees that any confession obtained through torture is illegal b) in case of alleged torture judges do not order a medical examination c) persons who report torture are sometimes the object of intimidation, etc. In general, the authorities have been restricting crucial safeguards that significantly increase the risk of torture and ill treatment.

1. Alleged Violation of Article 3 of the ECHR

The Court is not competent under Article 3 of the ECHR to review whether an individual in fact poses a threat to the national security of a country, its only task is to consider whether that individual’s deportation would be compatible with his or her rights under the Convention. Following this, the Court must review if the expulsion by Sweden will breach Article 3, provided that there are substantial grounds to believe that the applicant, if deported, would face a real risk of being subjected to treatment contrary to the ECHR. It is important to note that Article 3 is absolute and it is not possible to weigh the risk of ill-treatment against the reasons put forward for the expulsion.

Even though Swedish authorities agreed that there are no impediments to the enforcement of the expulsion order against the applicant as there is no risk of torture or ill treatment, the court thinks otherwise. The Moroccan authorities were not prosecuting the applicant while he was living in Sweden and therefore he was able to enter the country without issues. Nevertheless, the fact that the Swedish Security Service had been in contact with the Moroccan authorities and informed them about the presumed terrorist activities of the applicant might put the applicant in danger in case he is forced to return to Morocco as reliable international sources showed that arbitrary detention and torture continue to occur in cases related to suspects of terrorism. Therefore, considering the Moroccan authorities are aware of the expulsion order and the applicant is now a suspected terrorist, there is a risk of him being subjected to treatment contrary to article 3 if expelled from Sweden.

The Court highlighted that Swedish Immigration Authorities were not informed, during the application review, that the Security Service had contacted the Moroccan Authorities and informed them about the applicant before his expulsion, therefore their evaluation was carried out with incomplete information and jeopardized the applicant’s rights. The Court also noted that despite the fact the Security Service was in charge of the security assessment and enforcement of the expulsion, and that they acknowledged the risk of ill treatment during detention of suspected terrorists in Morocco, the Swedish government still maintain their position and avoided taking special measures to ensure that the applicant, once expelled, would not be subjected to treatment contrary to Article 3 of the Convention, such as a diplomatic agreement.

Outcome:

The appeal was granted, the Court found, unanimously, that the enforcement of the expulsion measure against the applicant would be a violation of the article 3 of the ECHR and order the Swedish government not to expel him.

Regarding damages, as the applicant did not claim any amount for pecuniary or non-pecuniary damages, the Court considered that there is no call to award him any amount on that account.

With regards of costs and expenses incurred in the process, the applicant claimed a refund for the amount of EUR 3,300 (Three Thousand Three Hundred and 00/100 Euros). The Court granted the applicant’s claim and ordered the Swedish Government to pay the applicant the said amount within three months from the date on which the judgement becomes final.

Observations/comments:

This case summary was written by Oscar Pajuelo, LLM student at Queen Mary University, London. 

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