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N. v. SWEDEN - 23505/09 [2010] ECHR 1139 (20 July 2010)
URL: http://www.bailii.org/eu/cases/ECHR/2010/1139.html
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[2010] ECHR 1139
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THIRD
SECTION
CASE OF N. v. SWEDEN
(Application
no. 23505/09)
JUDGMENT
STRASBOURG
20 July
2010
This
judgment will become final in the circumstances set out in
Article 44 § 2 of the Convention. It may be
subject to editorial revision.
In the case of N. v. Sweden,
The
European Court of Human Rights (Third Section), sitting as a Chamber
composed of:
Josep Casadevall,
President,
Elisabet Fura,
Corneliu Bîrsan,
Alvina
Gyulumyan,
Egbert Myjer,
Ineta Ziemele,
Ann
Power, judges,
and Santiago
Quesada, Section
Registrar,
Having
deliberated in private on 29 June 2010,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
The
case originated in an application (no. 23505/09) against the Kingdom
of Sweden lodged with the Court under Article 34 of the Convention
for the Protection of Human Rights and Fundamental Freedoms (“the
Convention”) by an Afghan national, Ms N. (“the
applicant”), on 28 April 2009. The President of the
Chamber acceded to the applicant's request not to have her name
disclosed (Rule 47 § 3 of the Rules of Court).
The
applicant was represented by Ms Irina Tkatsenko, a lawyer practising
in Stockholm. The Swedish Government (“the Government”)
were represented by their Agent, Ms Inger Kalmerborn from the
Ministry for Foreign Affairs.
The
applicant alleged that an implementation of the order to deport her
to Afghanistan would be in breach of Article 3 of the Convention.
On
11 May 2009 the President of the Chamber decided to apply Rule 39
of the Rules of Court, indicating to the Government that it was
desirable in the interests of the parties and the proper conduct of
the proceedings not to deport the applicant until further notice. It
was also decided to examine the merits of the application at the same
time as its admissibility (Article 29 § 3).
The
applicant and the Government each filed written observations (Rule 59
§ 1).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
A. Proceedings before the Swedish authorities and
courts
The
applicant was born in 1970 and lives in Fagersta.
On
13 August 2004 the applicant and her husband, X, arrived in Sweden
and on 16 August 2004 they applied to the Migration Board
(Migrationsverket) for asylum and residence permits. The
applicant was interviewed on 4 October 2004 and 8 March 2005. She had
no identity papers and could not prove her identity. She stated that
she was born and grew up in Kabul, where her parents, one of her two
brothers, an aunt and an uncle resided. Her other brother had left
Afghanistan a long time ago. She also had an uncle in Mazar-e-Sharif.
The applicant had attended school for twelve years in Kabul and had
studied at the university.
The
applicant and her spouse also submitted that they had been persecuted
since 1996 because X had been a politically active member of the
communist party, leading to his arrest on two occasions. Following
his second release they had moved to Kabul, but they alleged that
some fundamentalists had come looking for X there as well with the
intention of killing him. The applicant submitted that she also had
shown her political stance by acting as a teacher for women, which
was not accepted by parts of the leading elite in Kabul. Therefore,
they had fled the country. When they had left their home, they had
stayed with her uncle in Mazar-e-Sharif and the latter had helped
them finance their journey to Sweden by paying a smuggler 24,000 US
Dollars. Lastly, X invoked his poor mental health, stating that he
was suffering from anxiety, sleeplessness and aggressive behaviour.
On
29 March 2005 the Migration Board rejected the couple's application.
It first noted that the security situation in Afghanistan varied
between different parts of the country but that it was better in
Kabul than in other parts of the country. The Board then considered
that X had given vague information about his activities and had
failed to demonstrate that he had held a prominent or leading
position within the communist party. Hence, it questioned the claim
that his life would be endangered because of his membership of that
party. The Board therefore found that neither X nor the applicant had
shown that they had been persecuted in Afghanistan or that they would
risk persecution upon return. Thus, even having regard to X's poor
mental health, the Board found that there were no grounds on which to
grant them leave to remain in Sweden.
The
applicant and her husband appealed against the decision to the then
Aliens Appeal Board, which subsequently transmitted the case to the
Migration Court (Migrationsdomstolen). The applicant
maintained her claims and added that the threats against her and X
stemmed from X's previous political activities and from her
activities in educating women and that the authorities had not been
able to protect them, not even in Kabul. The applicant further
submitted that she had separated from X in June 2005, lived alone and
intended to obtain a divorce although X opposed it. Due to this, she
had been criticised by some of X's friends, been called a “bad
woman” and some other Afghans had spread untrue rumours about
her. By separating from X, she had broken with Afghan traditions
which meant that she risked serious persecution if forced to return
to her home country. In this respect, she pointed out that she would
not be able to obtain a divorce in Afghanistan and that by trying to
obtain a divorce in Sweden she had dishonoured both her own and X's
family. Consequently, her own family had disowned her and she would
risk reprisals from X's family. It would also be impossible for her
to find work and, since she and X had no children, she would be a
social outcast. She further mentioned that the punishment for
adultery in Afghanistan was stoning. Lastly, she stated that she
suffered from psychological problems and was in need of treatment in
Sweden.
The
Migration Board contested the appeal and submitted, inter alia,
that X had stated that his father had held a higher position than him
in the party but that he had not been threatened. It further claimed
that, having regard to X's poor mental health, it should be possible
for the applicant to obtain a divorce. Moreover, it appeared that X
would agree to a divorce. Lastly, it did not question that the
applicant's family was dissatisfied with her decision to separate
from her husband but it had not been shown that they had disowned
her.
On
19 March 2007, after holding an oral hearing, the Migration Court
rejected the appeal. It first considered that it had not been shown
that X, on account of his previous political activities, would be of
interest to any resistance groups in Afghanistan. It then observed
that quite some time had passed since the applicant had taught women
in her home country. Moreover, the court noted that the previous
Taliban ban on education for women had been replaced by affirmative
action for women and that the constitution stated that the State
should actively support women's education. Therefore, the court found
that the applicant had not demonstrated that she had a well-founded
fear of persecution because of her previous work as a women's
teacher. As concerned the applicant's personal life, the court
observed that she had not formally divorced X although they had
separated. In its view, nothing had appeared in the case which showed
that the applicant faced a concrete and individual risk of
persecution for having broken with Afghan traditions. It further
noted that the applicant had stated that she had not had an
extramarital affair, for which reason there was no risk that she
would be convicted of adultery and sentenced to death. In this
respect, the court considered that the applicant had not shown that
the alleged rumours about her had come to the knowledge of the Afghan
authorities. Turning to her claim that she would lack a social
network in Afghanistan, the court found that the applicant had not
demonstrated that her family in Afghanistan had rejected her and,
hence, she had a social network there. It further took into account
that she was well-educated and thus concluded that she had failed to
show that she would face a real risk of being persecuted or subjected
to inhuman or degrading treatment or punishment. Therefore, and since
the court did not find that any of the other reasons submitted by the
applicant were sufficient to grant her exceptional leave to remain,
the appeal was rejected.
The
minority of the court wanted to grant the applicant leave to remain
in Sweden on the ground that, since she did not have any children and
had separated from her husband, she had shown that she would risk
degrading treatment upon return to her home country.
The
applicant appealed against the judgment to the Migration Court of
Appeal (Migrationsöverdomstolen) which, on 4 September
2007, refused leave to appeal. This decision was final and the
applicant's deportation order thus became enforceable.
On
27 October 2007 invoking new circumstances, the applicant lodged an
application for a residence permit under Chapter 12, Section 18, of
the Aliens Act, which was refused by the Migration Board.
On
28 January 2008 the applicant lodged a new application for a
residence permit under Chapter 12, Section 18, of the Aliens Act,
which was refused by the Migration Board.
In
February 2008 the applicant petitioned the District Court
(tingsrätten) of Västmanland for a divorce from X.
The latter informed the District Court on 17 July 2008 that he
opposed a divorce. The applicant submitted that she had separated
from her husband in 2005 and only seen him once since then. Moreover,
she intended to invoke the divorce as one of the grounds to stop her
deportation.
In
a decision of 19 November 2008, the court dismissed her petition on
the ground that it was not competent to dissolve her marriage since
she did not have a legal right to reside in Sweden.
In
the meantime, on 17 October 2008, the applicant requested the
Migration Board to re-evaluate her case and stop her deportation. As
grounds for her request, she claimed that the situation in Kabul had
worsened considerably since the Migration Board's previous decision.
She further alleged that she now had a well-founded fear of
persecution upon return to Afghanistan since she had started a
relationship with a Swedish man. Thus, she had committed adultery and
risked the death penalty in Afghanistan. She had not been in touch
with her family since the summer of 2005.
She
also submitted a letter from the UNHCR Regional Office for the Baltic
and Nordic Countries, dated 2 October 2008, which stated, inter
alia, the following:
“UNHCR's views on the protection needs of Afghan
female asylum-seekers are fully set forth in the UNHCR's Eligibility
Guidelines for Assessing the International Protection needs of Afghan
Asylum seekers. ... In the context of Afghanistan, UNHCR
would like to draw to your attention to the fact that an assessment
of a refugee claim of an Afghan female asylum-seeker, should take
into account the specifically vulnerable situation in which Afghan
women are found, including pressure from within families,
communities, and by the public to conform [to] behaviour in
accordance with particular codes of behaviour. In this regard, a
separation and/or divorce effected in the country of asylum, may
indicate adoption of a Westernised way of life and be perceived as,
or actually transgressing, prevailing social mores and thereby
indicates a heightened risk of sur place persecution linked to
the grounds of religion and/or political opinion under the scope of
Article 1 A (2) of the 1951 Refugee Convention. ... UNHCR notes that
Afghan female asylum-seekers' reliance for relative social, cultural
and economic freedom is exclusively dependent on the existence of
male protection (husband, father, brother or extended family member)
and that lack of such networks may seriously undermine a returnee's
personal physical, economic and emotional security.”
On
24 October 2008 the Migration Board refused to reconsider the
applicant's case as she had failed to invoke any new circumstances of
importance. It considered that the applicant had only developed and
clarified those grounds which had already been examined by it and the
migration courts. The Board also found that there were no impediments
to the enforcement of the deportation order.
The
applicant appealed against the decision to the Migration Court,
maintaining the grounds invoked before the Board and insisting that
these were new circumstances of importance. On 4 December 2008 the
court rejected the appeal, upholding the Board's decision and
reasoning in full.
On
21 January 2009 the Migration Court of Appeal refused leave to Appeal
and, on 17 February 2009, the case was transferred to the Police
Authority to enforce the deportation order.
Finally,
on 17 April 2009 the applicant lodged a third application for a
residence permit under Chapter 12, Section 18, of the Aliens Act,
which was refused by the Migration Board.
B. Proceedings and new submissions before the Court
On
28 April 2009 the applicant lodged the case with the Court and on 11
May 2009 the President of the Chamber decided to apply Rule 39 of the
Rules of Court, indicating to the Government that it was desirable in
the interests of the parties and the proper conduct of the
proceedings not to deport the applicant until further notice
In
her observations of 4 November 2009 the applicant submitted that
already before leaving Afghanistan, she had told her mother about her
problems with her husband. In October 2005 the applicant had called
home and told her mother that she and her husband had separated. The
mother had become very upset and said that it was totally wrong and
that the applicant should go back to her husband. She had then talked
to her father who became furious and shouted that she brought
dishonour to the family. The conversation had ended because the
applicant ran out of money on her telephone card. The father had
called her back the following day to try to persuade her to change
her mind and talked about honour, shame and her disgracing the
family. In the end he had shouted that she was go back to her husband
or the family would not have anything more to do with her. She was no
longer his daughter. After the conversation, the applicant had called
her uncles in Kabul and Mazar-e Sharif to have their support but they
had both repeated the words of her father. That had been the last
conversation between the applicant and her relatives.
With
the applicant's observations of 4 November 2009 she also enclosed a
letter of 31 October 2009 “to whom it may concern” by a
named Swedish man who confirmed having a relationship with the
applicant. He stated, inter alia, that they had met for the
first time in the autumn of 2007, that their relationship had started
in February 2008 and that they had been living together in his
apartment since April 2009.
In
reply the Government observed on 15 January 2010 that the facts now
presented by the applicant in her observations were never submitted
to the Swedish authorities in spite of the fact that these could be
considered relevant to her claim for asylum. Notably, regarding the
claim that the applicant and the said Swedish man have been living
together since April 2009, the Government noted that the
applicant has still not changed her registered mail address in
Fagersta although her new residence is apparently far away.
II. RELEVANT DOMESTIC LAW
The basic provisions mainly applicable in the present
case, concerning the right of aliens to enter and to remain in
Sweden, are laid down in the 2005 Aliens Act (Utlänningslagen,
2005:716 – hereafter referred to as “the 2005 Act”)
which replaced, on 31 March 2006, the old Aliens Act
(Utlänningslagen, 1989:529). Both the old Aliens Act and
the 2005 Act define the conditions under which an alien can be
deported or expelled from the country, as well as the procedures
relating to the enforcement of such decisions.
Chapter 5, Section 1, of the 2005 Act stipulates that
an alien who is considered to be a refugee or otherwise in need of
protection is, with certain exceptions, entitled to a residence
permit in Sweden. According to Chapter 4, Section 1, of the 2005
Act, the term “refugee” refers to an alien who is outside
the country of his or her nationality owing to a well-founded fear of
being persecuted on grounds of race, nationality, religious or
political beliefs, or on grounds of gender, sexual orientation or
other membership of a particular social group and who is unable or,
owing to such fear, is unwilling to avail himself or herself of the
protection of that country. This applies irrespective of whether the
persecution is at the hands of the authorities of the country or if
those authorities cannot be expected to offer protection against
persecution by private individuals. By “an alien otherwise in
need of protection” is meant, inter alia, a person who
has left the country of his or her nationality because of a
well-founded fear of being sentenced to death or receiving corporal
punishment, or of being subjected to torture or other inhuman or
degrading treatment or punishment (Chapter 4, Section 2, of the
2005 Act).
As
regards the enforcement of a deportation or expulsion order, account
has to be taken of the risk of capital punishment or torture and
other inhuman or degrading treatment or punishment. According to a
special provision on impediments to enforcement, an alien must not be
sent to a country where there are reasonable grounds for believing
that he or she would be in danger of suffering capital or corporal
punishment or of being subjected to torture or other inhuman or
degrading treatment or punishment (Chapter 12, Section 1, of the 2005
Act). In addition, an alien must not, in principle, be sent to a
country where he or she risks persecution (Chapter 12, Section
2, of the 2005 Act).
Under
certain conditions, an alien may be granted a residence permit even
if a deportation or expulsion order has gained legal force. This
applies, under Chapter 12, Section 18, of the 2005 Act, where new
circumstances have emerged that mean there are reasonable grounds for
believing, inter alia, that an enforcement would put the alien
in danger of being subjected to capital or corporal punishment,
torture or other inhuman or degrading treatment or punishment or
there are medical or other special reasons why the order should not
be enforced. If a residence permit cannot be granted under this
provision, the Migration Board may instead decide to re-examine the
matter. Such a re-examination shall be carried out where it may be
assumed, on the basis of new circumstances invoked by the alien, that
there are lasting impediments to enforcement of the nature referred
to in Chapter 12, Sections 1 and 2, of the 2005 Act, and these
circumstances could not have been invoked previously or the alien
shows that he or she has a valid excuse for not doing so. Should the
applicable conditions not have been met, the Migration Board shall
decide not to grant a re-examination (Chapter 12, Section 19, of the
2005 Act).
Under the 2005 Act, matters concerning the right of
aliens to enter and remain in Sweden are dealt with by three
instances; the Migration Board, the Migration Court and the Migration
Court of Appeal (Chapter 14, Section 3, and Chapter 16, Section 9, of
the 2005 Act). Hence, upon entry into force on 31 March 2006 of the
2005 Act, the Aliens Appeals Board ceased to exist.
III. RELEVANT INFORMATION ON AFGHANISTAN
In
so far as relevant, the UNHCR Eligibility Guidelines for Assessing
the International Protection Needs of Afghan Asylum-Seekers of July
2009, which replaced the previous Guidelines from December 2007, set
out the following:
In view of the serious and widespread human rights
violations and ongoing armed conflict in many parts of the country,
UNHCR considers that a significant number of Afghan asylum seekers
are in need of international protection. Applications by Afghan
asylum-seekers should be determined on an individual basis, according
to fair and efficient refugee status determination procedures,
including the right of appeal. Favourable consideration should be
given to the specific groups identified in these Guidelines,
including, but not limited to (i) persons perceived as contravening
Sharia law and members of minority religious groups; (ii) ethnic
minority groups; (iii) persons associated with or perceived as
supporting the Government, including civil society members; (iv)
actual or perceived supporters of armed anti-Government groups; (v)
journalists; (vi) persons associated with the People's Democratic
Party of Afghanistan or other left-aligned political parties; (vii)
women; (viii) children; and (ix) persons at risk of becoming victims
of blood feuds.
UNHCR further considers that an internal flight or
relocation alternative (IFA/IRA) is not available within certain
parts of Afghanistan due to a number of factors. If, however, the
availability of an IFA/IRA must be assessed as a requirement in a
national eligibility procedure, it should be examined carefully and
on a case-by-case basis, in light of the requisite relevance and
reasonableness analyses, taking into account the individual
circumstance of the case, and bearing in mind the cautions in these
Guidelines. Even in those exceptional cases where relocation to an
accessible area might be considered as viable to eliminate the
existing threat, such area can only be a reasonable alternative in
cases where the claimant has strong family, social or tribal links in
the area of displacement, permitting relocation without undue
economic and social hardship. ...
(g) Women
Women are at particular risk of ill-treatment if
perceived as not conforming to the gender roles ascribed to them by
society, tradition and even the legal system. Ill-treatment occurs in
a variety of forms and may be inflicted by several actors, including
family members. Such treatment includes domestic violence, excessive
custodial sentences and degrading and inhuman treatment. While there
is a limited number of women holding public office, women's rights
continue to be curtailed, restricted and systematically violated. In
April 2009, for instance, a Shiite Personal Status Law was passed by
Parliament and signed by President Karzai. The law requires, inter
alia, women to comply with their husbands' sexual requests, and
to obtain permission to leave the home, except in emergencies. The
code has yet to be implemented and is currently under review as a
result of international pressure.
Cases of physical violence perpetrated against women and
girls in Afghanistan have increased by about 40% in the period from
March 2007 to March 2008. Existing figures indicate that currently up
to 80% of Afghan women are affected by domestic violence. Human
rights organizations report an overall increase of cases of
self-immolation and other forms of suicide. The phenomenon of female
self-immolation is commonly linked to the pervasive societal
discrimination against women. Survivors of sexual violence generally
lack basic support mechanisms such as trauma counselling and medical
treatment, as well as judicial capacity for forensics analysis. The
social stigma attached to the reporting of gender-based violence in
Afghanistan often prevents victims from seeking physical or
psychological treatment.
Afghan women, who have adopted a less culturally
conservative lifestyle, such as those returning from exile in Iran or
Europe, continue to be perceived as transgressing entrenched social
and religious norms and may, as a result, be subjected to domestic
violence and other forms of punishment ranging from isolation and
stigmatization to honour crimes for those accused of bringing shame
to their families, communities or tribes. Actual or perceived
transgressions of the social behavioural code include not only social
behaviour in the context of a family or a community, but also sexual
orientation, the pursuit of a professional career, and mere
disagreements as to the way family life is conducted.
Unaccompanied women or women lacking a male “tutor”
(mahram) continued to face limitations on conducting a normal social
life. They include divorced women, unmarried women who are not
virgins, and women whose engagements to be married have been broken.
Unless they marry, which is very difficult given the social stigma
associated with these women, social rejection and discrimination
continue to be the norm. Many Afghan women are prevented from leaving
the family compound without a burqa and a male companion, who has to
be a husband or a close relative. Women without male support and
protection generally lack the means of survival, given the social
restrictions on women living alone, including the limitations on
their freedom of movement. This is reflected in the absence of
solutions available to the few women able to access domestic violence
shelters. Unable to live independently, they face years of
quasi-detention, prompting many to return to abusive family
situations. The results of such “reconciliation” are
generally not monitored and abuse or honour crimes committed upon
return are often done with impunity.
Forced and child marriages continue to be widely
practiced in Afghanistan, and can occur in a variety of forms.
Statistics show that nearly 60% of girls in Afghanistan are married
before they reach 16 years old. Most marriages continued to be
arranged by families. However, more coerced forms include 'sale'
marriage, that is, girls sold for a fixed quantity of goods, cash or
simply to settle a family debt; bad dadan, a tribal form of
dispute-settling in which the offending family offers one girl for
marriage into the wronged family, for instance to settle a blood
debt; and badal, when two families exchange their daughters in an
attempt to minimize marriage costs.
Furthermore, women's rights activists face threats and
intimidation, particularly if outspoken about women's rights, the
role of Islam or the behaviour of commanders. In areas under the
control of armed anti-Government groups, there are growing
indications that women face systematic societal discrimination. For
example, a significant number of female medical graduates is
systematically refusing to work in rural areas, due to the fear of
being targeted by insurgents. These developments affect women's
access to health in a disproportionate way.
Access to education for girls is also severely
curtailed. According to the Ministry of Education and aid agencies
over five million school-age children (three million of them girls)
have been deprived of education as a consequence of conservative
customs, poverty, lack of education facilities and a culture of
gender discrimination.
The deterioration of the security situation has also had
a detrimental effect on education. Armed anti-Government groups have
continued their systematic attacks on schools, teachers, pupils
(particularly schoolgirls) and parents. According to the Afghan
Ministry of Education (MoE), more than 600 primary, secondary and
high schools closed due to such attacks. Up to 80% of schools are
closed in the four southern provinces of Helmand, Kandahar, Zabul and
Urozgan, with Helmand Province having only 54 schools, primarily for
boys, functioning, compared to 223 schools open in 2002.
Consequently, between 230,000 to 300,000 students have been deprived
of an education in 12 provinces, according to MoE officials. Girls'
schools are increasingly a target of attacks. Some 50% of security
incidents at schools across the country were specifically directed
against girls' schools despite the fact that they represent only
14.8% of the total number of primary, secondary and high schools in
the country. Furthermore, female teachers are specifically targeted
and higher bounties are offered for killing them. In November 2008,
in a widely reported attack in Kandahar, 12 students and four
teachers, all female, were sprayed with acid and suffered severe
injuries.
Given the pervasive societal discrimination and the
widespread sexual and gender based violence, Afghan women and girls,
particularly those living in areas affected by the armed conflict or
under the de facto control of armed anti-Government groups, may be at
risk of persecution depending on their individual profile and
circumstances. Failure to conform to conventional roles or
transgression of social and religious norms may expose women and
girls to violence, harassment or discrimination in Afghanistan. As
such, women with particular profiles, including, but not limited to
victims of domestic violence or other serious forms of violence,
unaccompanied women or single heads of household, women with visible
social or professional roles, such as journalists, human rights
activists and community workers, may be at risk of persecution on the
ground of membership of a particular social group. Where
non-conformity with traditional roles is perceived as opposing
traditional power structures, the risk of persecution may be linked
to the ground of religion and/or political opinion. Furthermore,
measures which restrict one's ability to earn a living so that
survival is threatened, or severe limitations to accessing education
or health services, may also amount to persecution.
The US State Department Human Rights Report on
Afghanistan for 2008, published on 25 February 2009 stated, inter
alia:
Women
The law criminalizes rape, which is punishable by death,
but under Shari'a, which the country's laws draw from and cannot
conflict, the criminalization did not extend to spousal rape. Under
Shari'a, a rape case requires a woman to produce multiple witnesses
to the incident, while the man need simply claim it was consensual
sex, often leading to an adultery conviction of the victim. Adultery
is defined in the Penal Code and designated a crime; premarital sex
is not designated a crime, but local officials often considered it a
"moral" offense. While the MOI reported 226 cases of rape
during the year; however, the actual number of cases generally was
believed to be much higher. Of the reported cases, 28 were charges of
rape against females and 198 were of rape against males. The MOI
reported 172 arrests in connection with rape cases. Statistics on
convictions were unavailable. Rapes were difficult to document due to
social stigma. Female victims faced stringent societal reprisal from
being deemed unfit for marriage to being imprisoned. According to
NGOs jail authorities frequently raped women imprisoned overnight in
jail.
The Afghan penal code criminalizes assault, and courts
entered judgments against domestic abusers under this provision.
According to NGO reports, hundreds of thousands of women continued to
suffer abuse at the hands of their husbands, fathers, brothers, armed
individuals, parallel legal systems, and institutions of state such
as the police and justice system. Many elements of society tolerated
and practiced violence against women. A Kabul women's shelter
reported receiving 50 new cases of domestic violence victims a month
from MOWA referrals. According to the shelter's report the weak
economy and poor security contributed to the incidence of domestic
violence. Authorities rarely prosecuted abusers and only occasionally
investigated complaints of violent attacks, rape, or killings, or
suicides of women. If cases came to court, the accused were often
exonerated or punished lightly. The director of a women's shelter in
Kabul noted domestic violence occurred in most homes but went largely
unreported due to societal acceptance of the practice. Domestic
violence usually consisted of beating women and children and, less
often, burning women. During the year, the AIHRC initiated additional
efforts to collect statistics on violence against women.
There were at least 19 women's shelters across the
country. The five shelters in Kabul were home to more than 100 women
and girls. The Ministry of Women's Affairs (MOWA) and other agencies
referred women to the centers, which were designed to give
protection, accommodation, food, training, and healthcare to women
escaping violence in the home or seeking legal support due to family
feuds. According to the MOWA, as many as 20 women and girls were
referred to the MOWA's legal department every day; however, space at
the specialized shelters was limited. Women in need of shelter who
could not find a place in the Kabul shelters often ended up in
prison.
The concept of women's shelters was not widely accepted
in society, as many persons treated them with distrust and did not
understand their utility. The director of one shelter stated she
always referred to the location as a mediation centre, as "shelter"
was considered a negative word. Policewomen trained to help victims
of domestic violence complained they were instructed not to do
outreach to victims but simply to wait for victims to show up at
police stations. This significantly hindered their work, as reporting
domestic violence was not socially accepted. UNAMA reported police
leadership often did not provide female officers with equipment or
vehicles necessary to do outside investigations. A Herat-based NGO,
however, reported recently graduated women police officers there were
active in crime investigation including investigating cases of
domestic violence. During the year, a local NGO conducted four
domestic violence trainings for 240 ANP officers in Kabul, including
those working in ANP Family Response Units. The Family Response Units
are staffed primarily by female police officers and address violence
and crimes against women, children, and families. They offer
mediation and resources to prevent future instances of domestic
violence.
Women continued to face pervasive human rights
violations and remained largely uninformed about their rights under
the law. Discrimination was more acute in rural areas and small
villages. Women in urban areas continued to make strides toward
greater access to public life, education, health care, and
employment; however, the denial of educational opportunities during
the continuing insurgency, as well as limited employment
possibilities and the threat of violence, continued to impede the
ability of many women to improve their situation.
Societal discrimination against women persisted,
including domestic abuse, rape, forced marriages, exchange of girls
to settle disputes, kidnappings, and honour killings. In some rural
areas, particularly in the south, women were forbidden to leave the
home except in the company of a male relative ...
According to a report released during the year by
Womankind, 87% of women complained they were victims of violence,
half of it sexual. According to the report, more than 60% of
marriages were forced and, despite laws banning the practice, 57% of
brides were under the legal marriage age of 16. The report stated
many of these girls were offered as restitution for a crime or as
debt settlement.
Local officials occasionally imprisoned women at the
request of family members for opposing the family's choice of a
marriage partner or being charged with adultery or bigamy. Women also
faced bigamy charges from husbands who had deserted them and then
reappeared after the woman had remarried. Local officials imprisoned
women in place of a family member who had committed a crime but could
not be located. Some women resided in detention facilities because
they had run away from home due to domestic violence or the prospect
of forced marriage. Several girls between the ages of 17 and 21
remained detained in Pol-e-Charkhi prison having been captured after
fleeing abusive forced marriages.
The AIHRC documented a total of 76 honour killings
throughout the year; however, the unreported number was believed to
be much higher. In September, according to a local NGO, an 18
year-old woman in Kapisa Province was killed by her brother because
she had run away from a forced marriage. Reportedly, after the woman
ran away to a Kabul women's shelter the Governor of Kapisa intervened
in the case, sheltered her, and forced the woman's mother to return
her to Kapisa, resulting in her death.
Women occasionally resorted to self-immolation when they
felt there was no escape from their situations. During the year the
AIHRC documented 72 cases of self-immolation, in contrast to 110
cases in 2007. Other organizations reported an overall increase
during the past two years. According to the AIHRC, almost all the
women had doused themselves with gasoline and set themselves alight.
In Herat Province, during the first six months of the year, the Herat
city hospital alone recorded 47 cases of self-immolation, of whom 40
died. There have also been reports of relatives setting women on fire
to create the appearance of self-immolation ...
There is no law specifically prohibiting sexual
harassment.
Women who reported cases of abuse or who sought legal
redress for other matters reported pervasive discrimination within
the judicial system. Local family and property law were not
explicitly discriminatory toward women, but in parts of the country
where courts were not functional or knowledge of the law was minimal,
elders relied on Shari'a and tribal custom, which generally were
discriminatory toward women. Most women reported limited access to
justice in tribal shuras, where all presiding elders were men; women
in some villages were not allowed any access for dispute resolution.
Women's advocacy groups reported informal intervention from the
government through letters to local courts encouraging
interpretations of the law more favourable to women ...
The
UK Home Office, Country of Origin Information Report on Afghanistan
of 18 February 2009, states in paragraphs 23.27- 23.30 about divorce:
Islamic Sharia and Constitution of the country have
provided suitable rights for women and men, but practically and in
some rules and practices of equality between men and women these
rights are not ensured. Current legislation leaves women largely
unprotected. A man can divorce his wife without due process. In the
absence of officially enforced marriage and divorce registration
women remain particularly open to abusive practices. A woman can
remarry three months after divorce period (Edat). However, if
challenged, she will have to provide witnesses to prove her divorce
in court. The woman can initiate the divorce process if she has
enough reasons to do so; accepted reasons among others include: her
husband must be sick and it endangers her; her husband must fail to
provide for the family; her husband must be absent for more than four
years in the house or be sentenced for imprisonment of 10 years or
more. In this case, the court will assign her mahr – divorce
maintenance – and custody of girls until they reach their ninth
birthday and boys until their seventh birthday.” (The
Afghanistan Human Rights Commission report, December 2008).
The Womankind report of February 2008 noted “Afghan
civil law contains numerous provisions that protect women's human
rights in the family, such as their right to divorce if they are
being maltreated. While seldom enforced, existing law provides a
basis from which to advocate for enforcement and education about
women's human rights.” Further, “Women's choices
regarding marriage and divorce remain circumscribed by custom and
discriminatory laws...” (Freedom House, 2008) UNHCR's December
2007 paper concurred “Women remain deprived of basic civil
rights, including in cases of divorce, custody and with regard to
inheritance rights.”
Womankind also recorded that “Stigma and shame
surround divorced women...rendering them unmarriageable and
subsequently, financially destitute. Polygamy is one of the few
options available to divorced women, who have low social status but
require a husband for financial dependence.” Also, “Women's
economic dependence on male family members prevents them from seeking
divorce or leaving abusive marriages.”
An IRIN News article dated 16 July 2008 reported that
“In Afghanistan sexual relations between a man and a woman
outside marriage are considered a serious crime and offenders can
face death penalty and/or a lengthy prison sentence, depending on
their marital status and other circumstances...Every year hundreds of
female sex workers are sent to prison for allegedly having 'unlawful
sexual relationships', according to women's rights activists...”
However, high food prices, drought, unemployment and lack of
socio-economic opportunities are pushing some women and young girls
in northern Afghanistan into commercial sex work, women's rights
activists and several affected women told IRIN...
The
Human Rights Watch, in its report “We Have the Promises of the
World” of 6 December 2009, on women's rights in Afghanistan,
details emblematic cases of ongoing rights violations in five areas:
attacks on women in public life; violence against women; child and
forced marriage; access to justice; and girls' access to secondary
education. The summary set out, inter
alia:
Eight years after the fall of the Taliban, and the
establishment of the Karzai government, Afghan women continue to be
among the worst off in the world. Their situation is dismal in every
area, including in health, education, employment, freedom from
violence, equality before the law, and political participation ...
The diminishing status of women's rights in Afghanistan came back
into focus in March 2009 when the Shia Personal Status law, which was
riddled with Taliban style misogyny, was passed by parliament and
signed by President Hamid Karzai. The law regulates the personal
affairs of Shia Muslims, including divorce, inheritance, and minimum
age of marriage, but, as detailed below, severely restricts women's
basic freedoms. ... the final outcome fell far short of expectations,
apparently because President Karzai was intent on maintaining the
electoral support of Shia fundamentalists. A month before the
presidential election he issued by decree an amended version of the
law which still includes articles that impose drastic restrictions
upon Shia women, including the requirement that wives seek their
husbands' permission before leaving home except for unspecified
“reasonable legal reasons.” The law also gives child
custody rights to fathers and grandfathers, not mothers or
grandmothers, and allows a husband to cease maintenance to his wife
if she does not meet her marital duties, including sexual duties. The
furor over the Shia law highlighted the fragility of the gains made
by Afghan women, human rights activists, and reform-minded
politicians. The dominant political factions of Afghanistan remain
ideologically hostile to many of the rights that many women have
started to enjoy since the fall of the Taliban, such as freedom of
movement, freedom to work, and the right to education. Many of the
women interviewed for this report observed that the space for them to
work as activists for change has diminished over the past few years,
as the government has come to increasingly rely on conservative
factions to maintain political control.
Violence against Women: Violence against women in
Afghanistan is endemic. A nationwide survey of 4,700 women, published
in 2008, found that 87.2% had experienced at least one form of
physical, sexual, or psychological violence or forced marriage in
their lifetimes.
The forms of violence include rape, physical
violence, forced marriage, and “honour killings.” Too
often the attitudes of those in government and the police reflect the
misogynous views, rooted in cultural traditions - but increasingly
rejected by younger generations of Afghans – that underlie some
of the violence against women. As Dr. Soraya Sobhrang, Women's
Protection and Development Commissioner of the Afghanistan
Independent Human Rights Commission (AIHRC), told us, “Police
and judges see violence against women as legitimate, so they do not
prosecute cases.” In the vast majority of cases women will not
seek help because of their fears of police abuse or corruption, or
their fears of retaliation by perpetrators of violence. Low social
status and social stigmas deter women from going against their
families to pursue justice, particularly in cases of domestic abuse.
For a woman even to approach the police or courts requires her to
overcome the public opprobrium that often still attaches to women who
leave their houses without a male guardian, let alone women who seek
protection from public authorities. In a 2008 study by the Women and
Children Legal Research Foundation (WCLRF), only 15% thought that a
woman disabled by violence should seek police help. For those who do
seek help, many encounter lack of concern, if not outright hostility
or abuse. Rape is not a crime in the Afghan Penal Code. Under the
code, rapists can only be charged with “forced” zina, or
adultery, which sometimes results in women also being prosecuted for
zina. In a major achievement for civil society groups and women's
rights activists, the president issued the Elimination of Violence
Against Women law, which makes rape a crime. At the time of writing
the law is being considered by parliament ...
Access to Justice: An underlying problem is
women's access to justice. Police training involves little or no
training in gender based violence or women's rights, particularly as
training has been increasingly focused on counter-insurgency and
security skills rather than crime prevention, crime solving and
community policing. Deeply entrenched cultural prejudices prevent
many women accessing the police or the courts because of the fear of
being stigmatized a “bad woman.” Women face
discrimination and prejudice in police stations and the courts from
officials who often do not know the law but penalize women according
to customary law, which places great emphasis on notions of female
“honour” and chastity. The majority of women in jail are
charged with extramarital sex (zina) or with “running away”-
something that is not a crime in Afghan law or Sharia but often
reflects a conservative cultural view that sees women as property of
fathers or husbands. One widely welcomed policy response to this was
the creation of female-staffed “Family Response Units”
(FRUs) in police stations. But, as detailed in this report, there are
serious problems with the implementation of FRUs, including
insufficient numbers of women police officers and inadequate
training, mentoring, and facilities...
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION
The
applicant complained that the enforcement of the deportation order to
Afghanistan would be in violation of Article 3 of the Convention,
which sets out:
“No one shall be subjected to torture or to
inhuman or degrading treatment or punishment.”
A. Admissibility
The
Court notes that the application is not manifestly ill-founded within
the meaning of Article 35 § 3 of the Convention. It further
notes that it is not inadmissible on any other grounds. It must
therefore be declared admissible.
B. Merits
1. Submissions by the parties
The
Government noted that international reports confirmed that the
general situation for women in Afghanistan was very difficult and
that women who lacked a social network and the protection of a male
person within the family or the extended family would be particularly
exposed to the risk of having their human rights violated, although
it appeared that the situation was slightly better in Kabul compared
to rural areas.
In
the present case, however, they maintained that the applicant has
failed to substantiate being at a real and concrete risk of being
subjected to ill-treatment upon return to Afghanistan, either by
Afghan authorities or by private individuals.
They
also noted that the applicant's identity was unsubstantiated and that
her story was vague and lacking in detail and evidence and that her
general credibility could be questioned.
She
had been particularly vague regarding her alleged extramarital
relationship and failed to submit information thereon to the Swedish
authorities during the domestic proceedings, except for the
information that he was Swedish. That seemed especially peculiar
since the applicant apparently met her new partner already in the
autumn 2007 and information about that relationship could have been
considered relevant to her claim for asylum. She has not provided any
explanation to the domestic authorities as to why she omitted to
furnish concrete information about the man and the relationship,
including her alleged move to his address in April 2009. In any event
there was nothing to indicate that the alleged extramarital
relationship had come to the knowledge of the Afghan authorities, her
family or her husband's family.
Likewise,
it was only in her observations of 4 November 2009 that the applicant
explained how her family allegedly had rejected her after several
telephone conversations in the autumn of 2005. However, that version
of events was inconsistent with her statement to the Migration Board
in her application of 13 October 2008 that she had not had any
contact with her relatives since the summer of 2005. Moreover, the
applicant's claim that her family had rejected her and that she had
no social network or male protection in her home country was not
supported by any evidence. It thus remained unsubstantiated that the
applicant's family had repudiated her as also found by the Migration
Court in its judgment of 19 March 2007.
As
to the submitted letter of 2 October 2008 from the Regional Office
for the Baltic and Nordic countries of the UNHCR, the Government
contended that it had little value as evidence since apparently the
author has no personal knowledge of the applicant and the letter
rather gave the UNHCR's views on the need for protection of Afghan
female asylum seekers in general.
Finally,
in the Government's view the applicant was still married and it did
not appear likely that the applicant's divorce attempt had come to
the attention of the Afghan authorities. Moreover, it could not be
ruled out that the applicant could obtain a divorce in Afghanistan.
That was possible in some situations, for example if the husband was
ill and that endangered the wife. They noted in this respect that it
emerged in the domestic proceedings that the applicant's husband, X,
suffered from mental health problems in the form of anxiety,
sleeplessness and aggressive behaviour.
The
applicant maintained that, if returned from Sweden to Afghanistan,
she would face a real risk of being persecuted, or even sentenced to
death, because she had separated from her husband and was involved
with another man. She further claimed that she risks being subjected
to inhuman and degrading treatment in Afghanistan since her family
has disowned her and she therefore would have no social network or
male protection. In this respect, she invoked the poor security
situation and the difficult humanitarian conditions for women in
Afghanistan.
The
applicant believed that both her own family and her husband's family
in Kabul had been informed about her attempt to dissolve the marriage
in Sweden because the District Court had contacted her husband and
been told on 17 July 2008 that he could not consent to a divorce.
Furthermore
she submitted that it was impossible to prove that her family had
repudiated her. They did not want to have contact with her and it was
difficult to see what submission might reasonably be expected to
substantiate her account in this respect.
Finally,
the applicant refuted that she could be successful in divorcing her
husband in Afghanistan because it would be impossible for her to
gather two witnesses in her favour. However, even if she returned
without her husband, as she intended to, she would still be at risk
of treatment contrary to Article 3 of the Convention for the reasons
invoked above.
2. The Court's assessment
The
Court reiterates that Contracting States have the right as a matter
of international law and subject to their treaty obligations,
including the Convention, to control the entry, residence and
expulsion of aliens (Üner v. the Netherlands [GC],
no. 46410/99, § 54, ECHR 2006-XII). However, expulsion 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 concerned, if deported, faces a real risk of being subjected
to treatment contrary to Article 3. In such a case, Article 3 implies
an obligation not to deport the person in question to that country
(Saadi v. Italy [GC], no. 37201/06, § 125, ECHR
2008-...).
Whilst
being aware of the reports of serious human rights violations in
Afghanistan, as set out above, 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 thus has to establish whether the applicant's
personal situation is such that her return to Afghanistan would
contravene Article 3 of the Convention.
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 seeker's 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 Matsiukhina
and Matsiukhin v. Sweden (dec.), no. 31260/04, 21
June 2005). 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 (see N. v. Finland, no. 38885/02, § 167,
26 July 2005 and NA. v. the United Kingdom, no. 25904/07,
§ 111, 17 July 2008). 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 foreseeable consequences of sending the
applicant to Afghanistan, bearing in mind the general situation there
and her personal circumstances (see Vilvarajah and Others v. the
United Kingdom, judgment of 30 October 1991, Series A no. 215,
§ 108 in fine).
The
Court firstly observes that women are at particular risk of
ill treatment in Afghanistan if perceived as not conforming to
the gender roles ascribed to them by society, tradition and even the
legal system. The UNHCR thus observed that Afghan women, who have
adopted a less culturally conservative lifestyle, such as those
returning from exile in Iran or Europe, continue to be perceived as
transgressing entrenched social and religious norms and may, as a
result, be subjected to domestic violence and other forms of
punishment ranging from isolation and stigmatisation to honour crimes
for those accused of bringing shame to their families, communities or
tribes. Actual or perceived transgressions of the social behavioural
code include not only social behaviour in the context of a family or
a community, but also sexual orientation, the pursuit of a
professional career, and mere disagreements as to the way family life
is conducted.
The
Court notes in this respect that, albeit not legally, the applicant
has resided in Sweden since 13 August 2004. The Court notes that
already for that reason she may be perceived as not conforming to the
gender roles ascribed to her by Afghan society, tradition and legal
system. More importantly, however, in Sweden in vain she attempted to
divorce her husband in 2008 and she has expressed a clear intention
of not resuming the marriage. The Court points out that in cases like
the one before it, the expression of an intention to divorce could be
motivated by previous refusals by the authorities to grant asylum on
the motive originally submitted. Thus, it must be expected that an
applicant can demonstrate convincingly that the intention is real and
genuine. The demand on the applicant may bear some resemblances with
cases in which an asylum seeker in a receiving county has converted
to Christianity from Islam and allege that the authorities in the
Islamic home country have knowledge thereof and that this may result
in serious negative life-threatening repercussions upon return (see,
for example, mutatis mutandis, Reza Mohammasi v. the
Netherlands (dec.), no. 5140/06, 1 June 2006 and
Razaghi v. Sweden (dec.), no. 64599/01, 11 March 2003). In the
present case the applicant separated from her husband X in June 2005,
approximately one year after the spouses had entered Sweden, and
while the appeal against the Migration Board's first refusal of
29 March 2005 was pending before the Migration Board. It is
not in dispute that she only saw her husband once thereafter and it
is a proven fact that she tried in vain to divorce him in 2008. In
these circumstances the Court finds that the applicant has
demonstrated a real and genuine intention of not living with her
husband. The case thus differs from, for example, S.A. v. The
Netherlands (dec.), 3049/06, 12 December 2006 in which the
applicant wife did not challenge her marriage, but alleged that her
husband was not the father of her child, born only one year after the
spouses had entered the Netherlands and requested asylum. The Court
found in that case that the allegation was wholly unsubstantiated and
noted that it had not resulted in the husband having undertaken any
step indicating that he considered a separation, divorce or to
challenge the paternity of the child, which could have imposed a risk
to the applicant upon return to Afghanistan.
The
applicant is still formally married to X. He informed the District
Court on 17 July 2008 that he opposed her wish to divorce. Thus, if
the spouses are deported to Afghanistan, separately or together, X
may decide to resume their married life together against the
applicant's wish. The Court points out in this connection, for
example, the Shiite Personal Status Law that was passed by Parliament
and signed by the President in April 2009 which, although yet to
be implemented, requires, inter alia, women to comply with
their husbands' sexual requests and to obtain permission to leave the
home, except in emergencies. It also notes the gloomy figures
indicating that currently up to 80% of Afghan women are affected by
domestic violence (see paragraph 34). Moreover, according to the
Women's Protection and Development Commissioner of the Afghanistan
Independent Human Rights Commission (see paragraph 37) the
authorities see violence against women as legitimate, so they do not
prosecute in such cases. In the vast majority of cases women will not
seek help because of their fears of police abuse or corruption, or
their fears of retaliation by perpetrators of violence. Low social
status and social stigmas deter women from going against their
families to pursue justice, particularly in cases of domestic abuse.
For a woman even to approach the police or courts requires her to
overcome the public opprobrium affecting women who leave their houses
without a male guardian, let alone women who seek protection from
public authorities.
The
Court points out that there are no specific circumstances in the
present case substantiating that the applicant will be subjected to
such treatment by X, but the Court cannot ignore the general risk
indicated by statistic and international reports.
59. The
applicant maintained that she was also at risk of being persecuted,
and even being sentenced to death, because she had an extramarital
relationship. The Court observes, however, that the applicant failed
to submit any relevant and detailed information thereon to the
Swedish authorities during the domestic proceedings and that
subsequently she has not even tried to explain why she failed to do
so. Nevertheless, should X perceive the applicant's filing for
divorce or other actions as an indication of an extramarital
relationship, the Court notes that, according to the US State
Department Human Rights Report on Afghanistan, (see
paragraph 35) “adultery is
defined in the Penal Code and designated a crime; premarital sex is
not designated a crime, but local officials often considered it a
"moral" offense”. Moreover, the “local
officials occasionally imprisoned women at the request of family
members for opposing the family's choice of a marriage partner or
being charged with adultery or bigamy. Women also faced bigamy
charges from husbands who had deserted them and then reappeared after
the woman had remarried. Local officials imprisoned women in place of
a family member who had committed a crime but could not be located.
Some women resided in detention facilities because they had run away
from home due to domestic violence or the prospect of forced
marriage”. Furthermore, an IRIN News article dated 16 July 2008
maintained that “in Afghanistan, sexual relations between a man
and a woman outside marriage are considered a serious crime and
offenders can face death penalty and/or a lengthy prison sentence,
depending on their marital status and other circumstances.”
Should
the applicant succeed, as she intends, in living separated from her
husband in Afghanistan, the Court notes the statement by the UNHCR
(see paragraph 34) that “unaccompanied women or women lacking a
male “tutor” continued to face limitations on conducting
a normal social life. They include divorced women, unmarried women
who are not virgins, and women whose engagements to be married have
been broken. Unless they marry, which is very difficult given the
social stigma associated with these women, social rejection and
discrimination continue to be the norm. Many Afghan women are
prevented from leaving the family compound without a burqa and a male
companion, who has to be a husband or a close relative. Women without
male support and protection generally lack the means of survival,
given the social restrictions on women living alone, including the
limitations on their freedom of movement. This is reflected in the
absence of solutions available to the few women able to access
domestic violence shelters. Unable to live independently, they face
years of quasi-detention, prompting many to return to abusive family
situations. The results of such “reconciliation” are
generally not monitored and abuse or honour crimes committed upon
return are often done with impunity.”
The Government contended that the applicant's claim that her family
had rejected her and that she had no social network or male
protection in her home country was unsubstantiated. The Court notes,
however, that although there are divergences as to whether the
applicant's last contact with her family was in the summer of 2005 or
in October 2005, no information has been presented which gives strong
reasons to question the veracity of her submissions that she has had
no contact with her family for almost five years, which does support
her claim that she no longer has a social network or adequate
protection in Afghanistan.
Having regard to all of the above, in the special
circumstances of the present case, the Court finds that there are
substantial grounds for believing that if deported to Afghanistan,
the applicant faces various cumulative risks of reprisals which
fall under Article 3 of the Convention from her husband X, his
family, her own family and from the Afghan society. Accordingly, the
Court finds that the implementation of the deportation order against
the applicant would give rise to a violation of Article 3 of the
Convention.
II. APPLICATION OF ARTICLE 41 OF THE CONVENTION
Article 41 of the Convention provides:
“If the Court finds that there has been a
violation of the Convention or the Protocols thereto, and if the
internal law of the High Contracting Party concerned allows only
partial reparation to be made, the Court shall, if necessary, afford
just satisfaction to the injured party.”
The
applicant claimed compensation for non-pecuniary damage in the amount
of 5,000 Euros (EUR).
The
Government contested that claim.
In view of the finding above (see paragraph 62) the
Court dismisses the applicant's claim for non-pecuniary damage.
The
applicant did not claim any reimbursement for costs and expenses
incurred before the Court, since the legal work was performed pro
bono.
III. RULE 39 OF THE RULES OF COURT
The
Court reiterates that, in accordance with Article 44 § 2 of the
Convention, the present judgment will not become final until (a) the
parties declare that they will not request that the case be referred
to the Grand Chamber; or (b) three months after the date of the
judgment, if reference of the case to the Grand Chamber has not been
requested; or (c) the Panel of the Grand Chamber rejects any request
to refer under Article 43 of the Convention.
It
considers that the indication made to the Government under Rule 39
of the Rules of Court must remain in force until the present judgment
becomes final or until the Panel of the Grand Chamber of the Court
accepts any request by one or both of the parties to refer the case
to the Grand Chamber under Article 43 of the Convention (see F.H.
v. Sweden, no. 32621/06, § 107, 20 January 2009).
FOR THESE REASONS, THE COURT UNANIMOUSLY
Declares the application admissible;
Holds that the applicant's deportation to
Afghanistan would be in violation of Article 3 of the Convention;
Dismisses the applicant's claim for
non-pecuniary damage.
Done in English, and notified in writing on 20 July 2010, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
Santiago Quesada Josep Casadevall
Registrar President
