ECtHR- R.C. v. Sweden, Application no. 41827/07, 9 June 2010
| Country of applicant: | Iran |
| Court name: | European Court of Human Rights Third Chamber |
| Date of decision: | 09-06-2010 |
| Citation: | ECtHR- R.C. v. Sweden, Application no. 41827/07, 9 June 2010 |
Keywords:
| Keywords |
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Detention
Description
"Restriction on freedom of movement through confinement that is ordered by an administrative or judicial authority(ies) in order that another procedure may be implemented. In an EU asylum context, this means confinement of an asylum seeker by a Member State within a particular place, where the applicant is deprived of his or her freedom of movement. This may occur during any stage of or throughout the asylum process, from the time an initial application is made up to the point of removal of an unsuccessful asylum seeker. In an EU Return context, Member States may only detain or keep in a detention facility a third-country national who is the subject of return procedures in order to prepare the return and/or carry out the removal process, in particular when: (a) there is a risk of absconding; or (b) the third-country national concerned avoids or hampers the preparation of return or the removal process. Any detention shall be for as short a period as possible and only maintained as long as removal arrangements are in progress and executed with due diligence." |
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Inhuman or degrading treatment or punishment
Description
A form of serious harm for the purposes of the granting of subsidiary protection. The Trial Chamber of the International Criminal Tribunal for the Former Yugoslavia in Celibici defined cruel or inhuman treatment as ‘an intentional act or omission, that is an act which, judged objectively, is deliberate and not accidental, that causes serious mental or physical suffering or injury or constitutes a serious attack on human dignity.’ “Ill-treatment means all forms of cruel, inhuman or degrading treatment or punishment, including corporal punishment, which deprives the individual of its physical and mental integrity." |
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Medical Reports/Medico-legal Reports
Description
“Expert medical report used as evidence relevant to the application for international protection. Where psychological elements are relevant, the medical report should provide information on the nature and degree of mental illness and should assess the applicant's ability to fulfil the requirements normally expected of an applicant in presenting his case. The conclusions of the medical report will determine the examiner's further approach.” |
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Personal interview
Description
"The process of questioning or talking with a person in order to obtain information or determine the personal qualities of the person. An interview is a common step in the adjudication of an application for refugee or other immigration status.” An applicant for asylum must be given the opportunity of a personal interview subject to the provisions of the Asylum Procedures Directive: - A personal interview must normally take place without the presence of family members unless considered necessary for an appropriate examination. - It must be conducted under conditions which allow applicants to present the grounds for their applications in a comprehensive manner and which ensure appropriate confidentiality. - the person who conducts the interview must be sufficiently competent to take account of the personal or general circumstances surrounding the application, including the applicant’s cultural origin or vulnerability, insofar as it is possible to do so - interpreters must be able to ensure appropriate communication between the applicant and the person who conducts the interview but it need not necessarily take place in the language preferred by the applicant if there is another language which he/she may reasonably be supposed to understand and in which he/she is able to communicate. - Member States may provide for rules concerning the presence of third parties at a personal interview. - a written report must be made of every personal interview, containing at least the essential information regarding the application as presented by the applicant - applicants must have timely access to the report of the personal interview and in any case as soon as necessary for allowing an appeal to be prepared and lodged in due time." |
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Torture
Description
“Any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him/her or a third person information or a confession, punishing him/her for an act s/he or a third person has committed or is suspected of having committed, or intimidating or coercing him/her or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions.” |
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Well-founded fear
Description
One of the central elements of the refugee definition under Article 1A ofthe1951 Refugee Convention is a “well-founded fear of persecution”: "Since fear is subjective, the definition involves a subjective element in the person applying for recognition as a refugee. Determination of refugee status will therefore primarily require an evaluation of the applicant's statements rather than a judgement on the situation prevailing in his country of origin. To the element of fear--a state of mind and a subjective condition--is added the qualification ‘well-founded’. This implies that it is not only the frame of mind of the person concerned that determines his refugee status, but that this frame of mind must be supported by an objective situation. The term ‘well-founded fear’ therefore contains a subjective and an objective element, and in determining whether well-founded fear exists, both elements must be taken into consideration." |
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Refugee Status
Description
The recognition by a Member State of a third-country national or stateless person as a refugee. |
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Political Opinion
Description
One of the grounds of persecution specified in the refugee definition per Article 1A ofthe1951 Refugee Convention. According to the Qualification Directive the concept of political opinion includes holding an opinion, thought or belief on a matter related to potential actors of persecution and to their policies or methods, whether or not that opinion, thought or belief has been acted upon by the applicant. |
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Real risk
Description
In order to be eligible for subsidiary protection, a third country national or stateless person must demonstrate that if returned to his or her country of origin, or in the case of a stateless person, to his or her country of former habitual residence, s/he would face a real risk of serious harm as defined in QD Art. 15 and that s/he is unable, or owing to such risk, unwilling to avail her/himself of the protection of that country. The fact that an applicant has already been subject to persecution or serious harm or to direct threats of such persecution or such harm, is a serious indication of the applicant's well-founded fear of persecution or real risk of suffering serious harm, unless there are good reasons to consider that such persecution or serious harm will not be repeated. |
Headnote:
The European Court of Human Rights held that the deportation of an Iranian national to Iran would give rise to a violation of Article 3 of the Convention.
Facts:
The applicant, an Iranian national, arrived to Sweden in 2003 and applied for asylum. He alleged that he had been detained in Iran because he had criticised the Iranian government and he had participated in a student demonstration. While imprisoned, he had been subjected to torture and still suffered from headaches because of it. His request was rejected both by the Migration Board and on appeal by the Aliens Appeals Board. It was subsequently dismissed by the Migration Court and was refused leave to appeal by the Migration Court of Appeal. On 8 November 2007, following a request by the applicant, the President of the Chamber to which the case had been allocated, indicated to the Swedish Government, under Rule 39 of the Rules of Court, not to deport the applicant to Iran until further notice.
The applicant claimed that deportation to Iran would subject him to a real risk of being arrested, tortured and perhaps even executed, in violation of his rights under Article 3 of the Convention.
Decision & reasoning:
The Court observed that the applicant’s basic story was consistent throughout the proceedings and that the uncertainties on certain aspects of the story did not undermine the overall credibility of his story [52]. Further, it accepted that the medical evidence of the medical reports’ submitted corroborated with the applicant’s story that he had been a victim of torture [53]. The Court also noted that according to reports from International organisations, people who demonstrate or show their opposition to the regime in any way, risk being detained and ill-treated or tortured. In the Court’s view, the applicant’s claims of being arrested and then tortured for participating in a demonstration against the regime were consistent with the information available from independent sources concerning Iran [54]. Accepting that the applicant had substantiated the claims of detention and torture in Iran, the Court further examined whether the applicant would be subjected to ill-treatment upon return to that country [55].
Taking into account that the applicant left Iran illegally and without valid exit documentation, the Court found, in light of the information available before it, that he would come to the attention of the Iranian authorities and his past would be revealed [56]. With regards to all the above, the Court concluded that there were substantial grounds for believing that the applicant would be exposed to a real risk of being detained and subjected to treatment contrary to Article 3 if deported to Iran in the present circumstances [57].
Outcome:
Violation of Article 3 in case of deportation of the applicant to Iran
Observations/comments:
Dissenting Opinion of Judge Fura
Judge Fura did not share the majority’s opinion that the applicant’s deportation to Iran would violate Article 3 of the Convention. In his opinion, the onus was on the applicant to substantiate that he would be exposed to ill-treatment if returned to his country, by providing evidence and when this evidence was adduced the Government had to dispel any doubts, failing which there would be a violation. Therefore, he was not convinced that the necessary evidence has been adduced in the present case. In his view, all the evidence adduced should have been taken together and evaluated as a whole. He also differed from the majority’s opinion that the fact that the applicant has been tortured in Iran was enough to substantiate that he runs a real risk of being tortured again if returned.
Relevant International and European Legislation:
Cited National Legislation:
| Cited National Legislation |
| Sweden - Utlänningslagen (Aliens Act) (2005:716) |
| Sweden - Utlänningslagen (Aliens Act) (1989:529) |
| Sweden- Old Aliens Act (Utlänningslagen |
Cited Cases:
| Cited Cases |
| ECtHR - Collins and Akaziebe v Sweden (Application no. 23944/05) |
| ECtHR - NA v UK, Application No. 25904/07 |
| ECtHR - Üner v. the Netherlands [GC], Application No. 46410/99 |
| ECtHR - N. v. Finland, Application No. 38885/02 |
| ECtHR - Matsiukhina and Matsiukhin v. Sweden, Application No. 31260/04 |
| ECtHR- Vilvarajah and Others v. the United Kingdom, Application Nos. 3163/87 13164/87 13165/87 13447/87 13448/87 |
Follower Cases:
Other sources:
United Nation's Secretary-General Assembly, Report (A/64/357) on The situation of human rights in the Islamic Republic of Iran, dated 23 September 2009
Human Rights Watch, World Report 2009 Events of 2008,
Amnesty International, Report 2009- The State of World’s Human Rights, 4 June 2009
Amnesty International, Over 100 Iranians face grossly unfair trials, August 2009
U.K. Home Office's Country of Origin Information Report on Iran, 16 January 2013
Danish Immigration Service's report, Human Rights Situation for Minorities, Women and Converts, and Entry and Exit Procedures, ID Cards, Summons and Reporting, etc- Fact Finding mission to Iran 24th August-2nd September 2008, April 2009