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‘Abduction of Europa’ (Rembrandt Harmensz. van Rijn, Amsterdam - 1632 - fragment)

Thursday, 10 September 2015

This week in Strasbourg - A roundup of the European Court of Human Rights' case law - 2015 - week 37

No violation of Article 3 in the event of Ms R.H.’s deportation to Mogadishu in Somalia - R.H. v. Sweden - The applicant, Ms R.H., is a Somali national who was born in 1988. She applied for asylum in Sweden in December 2011, claiming that she had just arrived in the country.
The Migration Board and migration courts examined her situation and eventually rejected her asylum application in June 2013 and ordered her deportation to Somalia. Those instances found that the applicant’s statements to the authorities lacked credibility: notably, she had already filed asylum applications in Italy and the Netherlands before arriving in Sweden in 2007, staying there illegally until contacting the migration authorities in 2011; and, initially claiming that she had left Somalia because of the war, had then changed her story to allege that she had fled Somalia with a secret boyfriend to escape a forced marriage to an older man and feared ill-treatment by her family on her return, particularly by her uncles who had already severely beaten her in 2004 for trying to escape. The applicant subsequently submitted a petition to have the enforcement of her deportation order stopped, claiming that her uncles had joined al-Shabaab, a jihadist terrorist group based in Somalia, forcing her brother to also join the group and killing her sister. The Migration Board rejected her petition in September 2013. The applicant’s deportation was stayed in January 2014 on the basis of an interim measure granted by the European Court of Human Rights under Rule 39 of its Rules of Court, which indicated to the Swedish Government that the applicant should not be expelled to Somalia whilst the Court was considering the case. Relying in particular on Article 3 (prohibition of inhuman or degrading treatment) of the European Convention on Human Rights, Ms R.H. alleged that, if removed from Sweden to Somalia, she would face a real risk of either being killed by her uncles for refusing to agree to a forced marriage before fleeing Somalia or forced to marry a man against her will again upon her return. She further claimed that the general situation in Somalia for women was very difficult, in particular for those – such as herself – who lacked a male network and were therefore all the more vulnerable. Interim measure (Rule 39 of the Rules of Court) – not to deport Ms R.H. – still in force until judgment becomes final or until further order.
JOINT DISSENTING OPINION OF JUDGES ZUPANČIČ AND DE GAETANO

We do not agree that the deportation of the applicant to Mogadishu in Somalia would not give rise to a violation of Article 3. On the contrary, we believe that on the basis of all the evidence she will, upon her forced return there, face a real risk of being subjected to inhuman or degrading treatment or punishment, if not worse.
Once again, unfortunately, both the Swedish courts and this Court have reached the same conclusion by examining under the microscope minor discrepancies or inconsistencies in the applicant’s statements – most of which have a reasonable explanation – while at the same time downplaying the general situation in the country of return that emerges from various international reports. We find this method unacceptable, as previously indicated in the separate opinions in K.A.B. v. Sweden (no. 886/11, 5 September 2013) and in J.K. and Others v. Sweden (no. 59166/12, 4 June 2015).
In the instant case the applicant, a single woman who has been living in Sweden for almost eight years and who has been absent from her country for longer, will not only be returned to an essentially dysfunctional society, but also to one that is positively hostile to her status and to what she has done these last ten years plus. Whatever family the applicant may still have in Mogadishu, especially male members, they will be equally, if not more, hostile. In Tarakhel v. Switzerland ([GC], no. 29217/12, ECHR 2014 (extracts)) this Court found that the reception facilities and accommodation conditions for the Tarakhel family in Italy would attain the threshold of severity required to come within the scope of the prohibition under Article 3. We therefore fail to see how in the applicant’s case her forced return to a situation which places her physical integrity and her life in manifest danger does not reach that threshold.
For these reasons we have voted against operative provision 2 of the judgment.

Texts are based on the press releases of the European Court of Human Rights. 
This selection covers categories 1 and 2 judgments. 

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