ECtHR- I v. Sweden (Application no. 61204/09), 20 January 2014

Facts:

The applicants, Mr and Ms I and their child, are Russian nationals of Chechen origin who live in Sweden (Vilhelmina). They requested asylum in 2007, stating that they had been tortured by the "Kadyrov’s group" and are still sought because of Mr I’s photos documenting the execution of Chechen villagers by Russian federal troops between 1995 and 2007 and of his contacts with the journalist Anna Politkovskaja, who had been killed in 2006.

According to the applicants’ submissions before the Swedish Migration Board, Ms I had been kidnapped in October 2007 by the Federal Security Service(FSS) of the Russian Federation and was subsequently tortured and raped for several days. While searching for his family, Mr I had been arrested by a military guard, then detained and tortured in order to provide information about the Chechen rebels. Among the evident signs of his torture is a cross burned into his chest with cigarettes.

The Swedish Migration Board refused to grant the applicants asylum, noting that the situation in Chechnya or the situation for Chechens in Russia alone could not justify the granting of asylum. In addition, it found the applicants’ stories to be incoherent, with Mr I being unable to show any of the documentary work he was producing for years and his allegations about when he met Anna Politkovskaja to be inconsistent.

The above mentioned decision was upheld by the Swedish migration courts and in November 2009 an interim measure was applied under Rule 39 of the Rules of the Court, requesting the Swedish Government to stay the applicants’ expulsion until further notice [18].

Decision & reasoning:

The Court found that the right of the Member State of origin of the applicants to submit comments on the case, under Article 36 of the Convention (third party intervention), did not apply where the applicants’ reason for applying to the Court was their fear of ill-treatment if returned to that State. Therefore Russia was not notified of the introduction of the case.

Taking cue from its case-law regarding disappearances and ill-treatment in Chechnya as well as reports on human rights violations in Chechnya, the Court seemed to be well aware of the general situation in Russia, where returnees are subject to interrogation, harassment and possible detention and ill-treatment by the FSS. However, the Court considered that the general situation was not sufficiently serious to give rise to a violation of Article 3 in case of deportation of the applicants to Russia.

As regards to the case at hands, the Swedish authorities did not question that the first applicant had been subjected to torture, they have stated however that he had not established sufficiently why he had been subjected to it and by whom. Therefore, the Court agreed with the domestic authorities "that the applicants failed to make it plausible that they would face a real risk of being subjected to ill-treatment upon return to the Russian Federation because of the first applicant’s alleged journalistic activities" [65].  Upon the Court’s request, the first applicant submitted a compilation of incidents allegedly documented by him from 1995 to 2007, without developing the link between them and his work. He further failed to submit any article written or photo taken by him and submitted only one example of an article, allegedly based on his reports[21].

Nevertheless, it highlighted the possibility a number of individual factors not to constitute a risk, when considered separately, but when taken cumulatively and when considered in a situation of general violence to give rise to a real risk of ill-treatment.  According to the Court’s opinion, the Migration Board and the Migration Court did not make a separate assessment of the applicant’s specific risk, especially in relation with the scars on his body, including a cross burned into his chest. The medical certificates he submitted concerning his wounds certify his explanation as to the timing and extent of the torture. The scars have occurred in recent years, which could indicate his active participation in the second war of Chechnya [68]. 

The Court, taking into account those factors cumulatively, found that the applicants would be exposed to a real risk of being subjected to treatment contrary to Article 3 of the Convention if removed to the Russian Federation [69]. 

Outcome:

The deportation of the applicants to Russia would give rise to a violation of Article 3 (prohibition of torture and of inhuman or degrading treatment) of the European Convention on Human Rights.

Observations/comments:

Dissenting opinion Judges Villiger and Yudkivska

Judges Villiger and Yudkivska did not share the majority’s opinion that "the national authorities did not question that the first applicant had been subjected to torture"[61]. In contrast, they highlighted that the Migration Court found that the first applicant’s injuries had probably been caused by ill-treatment resembling torture. However, in the absence of consistent information from the applicants, the domestic authorities characterized these submissions unfounded, after conducting a thorough assessment.

Furthermore, they were unable to see the connection between the first applicant’s bodily injuries and his active participation in the Second Chechen War, especially after taking into account the uncertainty in the applicant’s submissions about the circumstances under which they were sustained.

Last but not least, they highlighted that the majority, in its judgement, did not attach sufficient importance to the fact that the case concerns expulsion to a High Contracting Party to the Convention, bound by its obligations to secure fundamental rights (see Bajsultanov v. Austria).

Taking into account the above mentioned, the two Judges considered that the applicants’ deportation to Russia would not give rise to a violation of article 3 of the Convention. 

Other sources:

Report by Thomas Hammarberg, Commissioner for Human Rights of the Council of Europe, following his visit to the Russian Federation from 12 to 21 May 2011, 6 September 2011

2010 Human Rights Report on Russia by the United States Department of State dated 8 April 2011

SchweizerischeFlüchtlingshilfe (Swiss Refugee Council): North Caucasus: Security and human rights, dated 12 September 2011

Chechens in the Russian Federation: Report from the Danish Immigration Service’s fact-finding mission to Moscow and St. Petersburg from 12 to 29 June 2011, dated October 2011

Guidelines on the treatment of Chechen internally displaced persons, asylum seekers and refugees in Europe by the European Council on Refugees and Exiles (ECRE), updated in March 2011