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06 december 2012

Uitspraak EHRM in zaak van Ethiopische afgewezen asielzoeker v Zweden

Deel uitspraak:

2.  The Courts assessment
33.  The Court finds that the issues under Articles 2 and 3 of the Convention are indissociable and it will therefore examine them together.
34.  The Court reiterates that Contracting States have the right, as a matter of well-established international law and subject to their treaty obligations, including the Convention, to control the entry, residence and expulsion of aliens (see, for example, Üner v. the Netherlands [GC], no. 46410/99, § 54, ECHR 2006-XII; Abdulaziz, Cabales and Balkandali v. the United Kingdom, judgment of 28 May 1985, Series A no. 94, p. 34, § 67; and Boujlifa v. France, judgment of 21 October 1997, Reports 1997VI, p. 2264, § 42). However, the expulsion of an alien by a Contracting State may give rise to an issue under Article 3, and hence engage the responsibility of that State under the Convention, where substantial grounds have been shown for believing that the person in question, if deported, would face a real risk of being subjected to treatment contrary to Article 3 in the receiving country. In these circumstances, Article 3 implies the obligation not to deport the person in question to that country (see, among other authorities, Saadi v. Italy [GC], no. 37201/06, §§ 124-125, ECHR 2008-...).
35. The assessment of whether there are substantial grounds for believing that the applicant faces such a real risk inevitably requires that the Court assesses the conditions in the receiving country against the standards of Article 3 of the Convention (Mamatkulov and Askarov v. Turkey [GC], nos. 46827/99 and 46951/99, § 67, ECHR 2005-I). These standards imply that the ill-treatment the applicant alleges he will face if returned must attain a minimum level of severity if it is to fall within the scope of Article 3. The assessment of this is relative, depending on all the circumstances of the case (Hilal v. the United Kingdom, no. 45276/99, § 60, ECHR 2001-II). Owing to the absolute character of the right guaranteed, Article 3 of the Convention may also apply where the danger emanates from persons or groups of persons who are not public officials. However, it must be shown that the risk is real and that the authorities of the receiving State are not able to obviate the risk by providing appropriate protection (H.L.R. v. France, judgment of 29 April 1997, Reports 1997-III, § 40).
36.  The assessment of the existence of a real risk must necessarily be a rigorous one (see Chahal v. the United Kingdom, judgment of 15 November 1996, Reports 1996-V, § 96; and Saadi v. Italy, cited above, § 128). It is in principle for the applicant 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 (see N. v. Finland, no. 38885/02, § 167, 26 July 2005). In this respect, the Court acknowledges 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 seekers submissions, the individual must provide a satisfactory explanation for the alleged discrepancies (see, among other authorities, Collins and Akasiebie v. Sweden (dec.), no. 23944/05, 8 March 2007; and Hakizimana v. Sweden (dec.), no. 37913/05, 27 March 2008).
37.  The above principles apply also in regard to Article 2 of the Convention (see, for example, Kaboulov v. Ukraine, no. 41015/04, § 99, 19 November 2009).
38.  In cases concerning the expulsion of asylum seekers, the Court does not itself examine the actual asylum applications or verify how the States honour their obligations under the Geneva Convention relating to the status of refugees. It must be satisfied, though, that the assessment made by the authorities of the Contracting State is adequate and sufficiently supported by domestic materials as well as by materials originating from other reliable and objective sources such as, for instance, other contracting or noncontracting states, agencies of the United Nations and reputable nongovernmental organisations (see N.A. v. the United Kingdom, no. 25904/07, § 119, 17 July 2008).
39.  Whilst being aware of reports of serious human rights violations in Ethiopia, the Court does 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 has to establish whether the applicants personal situation is such that his return to Ethiopia would contravene the relevant provisions of the Convention.
40.  The Court first notes that the applicant was heard by both the Migration Board and the Migration Court, that his claims were carefully examined by these instances and that they delivered decisions containing extensive reasons for their conclusions.
41.  The Court further notes that the applicant has failed to substantiate that the Ethiopian authorities were responsible for the incident of 12 June 2005 when he was attacked and beaten by two unknown men, lost a tooth and was cut on the hand. In the Courts view, this incident cannot be viewed as anything other than an individual criminal act. It therefore cannot have any bearing on the assessment of whether the applicant will be at risk of being ill-treated by the Ethiopian authorities upon return.
42.  The Court does not find reason to question that the applicant may have been detained and subjected to ill-treatment in connection with the elections of 2005, first from September 2005 when he was allegedly detained for 3 months and 11 days, and for the second time from January 2006 when he claimed to have been detained for 5 months. The Court notes, in particular, the findings of the forensic evaluation (see § 12 above) according to which the applicants injuries were visibly compatible with his story and could support his claims that he had been subjected to torture in the way he had submitted. However, the Court observes that it cannot be excluded that the applicant may have obtained some of the injuries during the attack of 12 June 2005 (see the findings in § 41 above). Moreover, the Court finds, in agreement with the Swedish authorities, that the main issue at hand is whether it has been substantiated that the applicant would be at a real risk of being subjected to such treatment upon return. In this regard, the Court notes that the applicant appears to have been travelling around and preaching in public for almost a year after having escaped from prison and before leaving the country for Sweden in the summer of 2007 without the Ethiopian authorities showing any adverse interest in him.
43.  Moreover, the Court finds, in agreement with the Swedish authorities and referring to the authenticity assessment made by them, that the alleged arrest warrant submitted by the applicant has very little evidential value. The Court further finds that there are credibility issues with regard to how the applicant obtained the document. It does not appear probable that the authorities would hand the document over to some members of his church and the applicant has submitted no documents or particulars in support of that claim. The Court finds that there are further credibility issues with regard to the applicants submissions. For instance, it was at the oral hearing before the Migration Court that the applicant first submitted that one of the reasons why he feared ill-treatment upon return was that he was considered to be a spy. The Court finds it remarkable that he did not mention this earlier in the proceedings since, if it were true, it would be very relevant to his asylum application.
44.  Lastly, the Court notes that the applicant does not appear to have been politically active in Ethiopia, apart from working as an observer during the elections of 2005, that the incidents described by the applicant took place in 2005 and 2006 and that he left the country in 2007. In the light of this the Court considers, in agreement with the Swedish Government, that it is improbable that he would still be of interest to the Ethiopian authorities upon return.
45.  Having regard to the above, the Court must conclude that the applicant has failed to make it plausible that he would face a real risk of being killed or subjected to ill-treatment upon return to Ethiopia. Consequently, his deportation to that country would not involve a violation of Article 2 or 3 of the Convention.


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