ECtHR - R.C. v Sweden, Application No. 41827/07

Printer-friendly versionPrinter-friendly version
Country of Applicant: 
Iran
Date of Decision: 
09-06-2010
Citation: 
Application No. 41827/07
Court Name: 
European Court of Human Rights - Third Section
Headnote: 

This case concerned risk upon return to Iran in a situation where a person has previously been detained and tortured there and had supporting medical evidence. The Court found a violation of Art. 3 ECHR if the Applicant were to be deported to Iran.

Facts: 

The Applicant was a Shia Muslim from Iran. He claimed that he was previously detained there on the basis of his criticisms of the Iranian government during demonstrations. While imprisoned he had been subjected to torture and still suffered from headaches because of it. He escaped from prison and was convinced that he would be executed if returned to Iran. During his asylum claim he submitted a medical certificate documenting his scars. The Swedish Migration Board rejected his request on the grounds that it was not substantiated. The Applicant appealed to the Aliens Appeal Board and his case was then transferred to the Migration Court where his appeal was rejected. A subsequent application for leave to appeal to the Migration Court of Appeal was also rejected. He applied to the ECtHR and a Rule 39 interim measure was granted staying his removal from Sweden.

Upon request the Applicant submitted a forensic medical report where the findings strongly indicated that the Applicant had been tortured.

Decision & Reasoning: 

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 Art. 3. In terms of the COI, the Court noted that, whilst being aware of the reports of serious human rights violations in Iran, it did not find them to be of such a nature as to show, on their own, that there would be a violation of the Convention if the Applicant were to return to that country. The Court had to establish whether the Applicant’s personal situation is such that his return to Iran would contravene Art. 3. It stated 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’ (Para 50). 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. Where such evidence is adduced, it is for the Government to dispel any doubts about it.

In order to determine whether there is a risk of ill-treatment, the Court must examine the general situation there and his personal circumstances. The Court noted that there was a dispute as to the facts between the different parties. However, the Court did not agree with the conclusion of the Swedish Government that the information provided by the Applicant was such as to undermine his general credibility. It found the Applicant’s account consistent throughout the proceedings.

The Court placed special emphasis on the fact that the Applicant had initially produced a medical certificate before the Migration Board as evidence of his having been tortured. Although it was not written by an expert specialising in the assessment of torture injuries, it was a good indication and in such circumstances it was for the Migration Board to dispel any doubts that might have persisted as to the cause of such scarring. It held that ‘the Migration Board ought to have directed that an expert opinion be obtained as to the probable cause of the Applicant's scars in circumstances where he had made out a prima facie case as to their origin. It did not do so and neither did the appellate courts. While the burden of proof, in principle, rests on the Applicant, the Court disagrees with the Government's view that it was incumbent upon him to produce such expert opinion. In cases such as the present one, the State has a duty to ascertain all relevant facts, particularly in circumstances where there is a strong indication that an Applicant's injuries may have been caused by torture’ (Para. 53). The medical evidence corroborated the Applicant’s story. The Court also noted that the COI indicated that the Iranian authorities frequently detain and ill-treat persons who participate in peaceful demonstrations in the country. It noted that it was not only high profile persons who were detained but anyone who opposes the current regime is at risk of being ill-treated or detained. It noted that the Applicant’s account was consistent with the information available from independent sources concerning Iran. In view of that fact, the Court considered the Applicant had substantiated his claim. In terms of whether he would run the risk of ill-treatment upon return to Iran, having regard to its finding that the Applicant has discharged the burden of proving that he has already been tortured, the Court considered that the onus rests on the State to dispel any doubts about the risk of his being subject to treatment contrary to Art. 3. In assessing such a risk, the general situation had to be taken into account as well regard for the specific risk facing Iranians returning to their home country in circumstances where they cannot produce evidence of leaving legally. It found it probable that the Applicant, being without valid exit documentation, would come to the attention of the Iranian authorities and that his past would likely be revealed. Accordingly, it found that there were substantial grounds for believing that the Applicant would face a real risk of being detained and subjected to treatment contrary to Art. 3 if deported to Iran.

There was one dissenting opinion by Judge Fura who did not share the majority’s view that removal would be a violation of Art. 3 ECHR. Judge Fura was not convinced that the Applicant had made out a prima facie case and that the necessary evidence had been adduced.

Outcome: 

Held by 6 votes to one that the Applicant’s deportation to Iran would be in violation of Art. 3 ECHR.

Subsequent Proceedings : 

For follow up on State practice in Sweden, see the AIDA blog at this link.

Observations/Comments: 

This case is important in terms of credibility assessments, evidence and medical reports. See also this link for an analysis of the case by the Strasbourg Observers blog.

Academic article by Rebecca Wallace and Karen Wylie in IJRL: The recognition of expert medical evidence in refugee status determination 2013 Vol 25 No. 4.

Case Law Cited: 

ECtHR - Matsiukhina and Matsiukhin v. Sweden, Application No. 31260/04

ECtHR - N. v. Finland, Application No. 38885/02

ECtHR - Üner v. the Netherlands [GC], Application No. 46410/99

ECtHR - Collins and Akaziebe v Sweden (Application no. 23944/05)
Other sources cited: 

PACE Resolution on Iran 25 June 2009;

UN Secretary General Report on the situation of human rights in the Islamic Republic of Iran, 23 September 2009;

Human Rights Watch World Report 2009,

Amnesty International World Report 2009,

UK Home Office’s COI report on Iran, August 2009;

Danish Immigration Services Report Human Rights Situation for Minorities, Women and Converts, and Entry and Exit Procedures, ID cards, Summons and Reporting etc.

Authentic Language: 
English
State Party: 
Sweden
National / Other Legislative Provisions: 
Sweden - Utlänningslagen (Aliens Act) (2005:716)
Sweden - Utlänningslagen (Aliens Act) (1989:529)