H.N. and Others v Sweden - 50043/09 [2012] ECHR 221 (24 January 2012)

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The European Court of Human Rights (Fifth Section), sitting on 24 January 2012 as a Chamber composed of:

Dean Spielmann, President,
Elisabet Fura,
Boštjan M. Zupančič,
Ann Power-Forde,
Ganna Yudkivska,
Angelika Nußberger,
André Potocki, judges,
and Claudia Westerdiek, Section Registrar,

Having regard to the interim measure indicated to the respondent Government under Rule 39 of the Rules of Court, namely not to deport the applicants until further notice, and the fact that this interim measure has been complied with,

Having regard to the decision to grant priority to the above application under Rule 41 of the Rules of Court,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,

The facts of the case, as submitted by the parties, may be summarised as follows.

The applicants were born in 1969, 1995, 1998, 2004, 2006 and 2007 respectively and are currently in Sweden.

The applicants arrived in Sweden in May 2007 and applied for asylum and residence permits. Before the Migration Board (Migrationsverket) they essentially submitted the following. The first applicant had worked as a teacher. In December 2006 the first applicant, her sister and her adopted daughter had been raped in her home by five unknown men and at the same time a hand grenade had been thrown at her husband, P. The incident had taken place a few months after the couple had started enquiring of the authorities how it was that a man, G., who had been convicted of abusing their daughter A.B. (the third applicant) in 2000, had been released before serving his entire sentence. The authorities had told them to stop asking questions about the matter and shortly thereafter P. had started receiving telephone threats to the effect that the family would be hurt if they did not stop asking about G. The first applicant and P. had also suspected that P.’s phone was tapped. The first applicant suspected that G. had been released early from prison in order to spy on the FNL (Forces Nationales de Libération, at the time a rebel group) for the Government, for which reason the authorities would want to cover up his release by silencing the first applicant and her family. The first applicant added that P. and their adopted daughter had left Burundi in July 2007 due to continued threats and were currently in Angola. The applicants were convinced that, if returned to Burundi, they would be killed by those who had threatened them. Moreover, the first applicant was worried about how she would be able to protect B.B. (the sixth applicant) from it becoming known that she might be the result of the rape. The applicants submitted their passports as well as two medical certificates; one issued on 6 February 2000 which stated that the third applicant had been receiving care following sexual abuse and the other issued on 20 December 2006 which stated that the first applicant, her sister and adopted daughter had received care following a rape.

On 25 October 2007 the Migration Board rejected the application. It did not question that the first applicant, her sister and adopted daughter had been the victims of rape in December 2006. However, it found it unsubstantiated that men from the governing party had been responsible for the rapes and the threats against the family. It also considered that it was merely speculation by the first applicant that P.’s telephone had been tapped or that G. had been released early to work as a spy for the Government, as she had presented nothing to show that this was actually the case. In the Board’s view, having regard to what the first applicant had said during the interviews, it rather appeared as if the rapes were acts of revenge on the part of G., carried out by private persons connected to G. Here the Board noted that the first applicant had stated that they had reported the rapes in December 2006 to the police and that the police had commenced an investigation. It further observed that although sexual violence was a problem in Burundi, the number of rapes had decreased during 2006 while there was an increase in reports to the police concerning rape. Moreover, G. had been prosecuted and convicted of the abuse of the third applicant, which indicated that the Burundian authorities were willing and able to deal with the problem. Consequently, the Board concluded that the applicants were not in need of protection in Sweden. The Board also took into account that the case included five minor children, of whom the sixth applicant had been born prematurely in Sweden. However, she was developing well and there was no indication that there would be problems for her in the future due to the uncertainty as to the identity of her father. In conclusion, the Board considered that there were no exceptional reasons to let the applicants remain in Sweden.

The applicants appealed to the Migration Court (Migrationsdomstolen), relying on the same grounds as previously and adding that the police report concerning the rapes had not led to anything and that the authorities would not be able to protect them from their assailants. The first applicant stressed that the family had had a good life before the attacks and that they would not have left the country if they had not been forced to. From the way her assailants had spoken to her during the attack, she had understood that they were Hutus.

On 19 February 2008, after having held an oral hearing, the Migration Court rejected the appeal. Like the Migration Board, it first noted that the abuse of the third applicant had been investigated and the assailant tried and convicted. Moreover, the police were investigating the rapes of the first applicant, her sister and adopted daughter. Thus, the Burundian authorities were able and willing to help the applicants. The court further noted that the applicants had remained in Burundi for four months after the attack without being the victims of any further attacks and that P. had remained in their home until July 2006. In the court’s view, the reasons put forward for the attacks and the threats were pure speculation on the part of the first applicant and not substantiated. Hence, the applicants had failed to show that they were in need of protection in Sweden. Even having regard to the fact that the case involved children, the court considered that they could not be granted leave to remain in Sweden.

One lay judge (out of three lay judges and a professional judge) dissented. She considered that the first applicant had given a credible and coherent account and that she had thereby shown that she would face a real risk of being persecuted or ill-treated due to her gender if returned to Burundi. The applicants should therefore be considered as refugees.

Upon further appeal, the Migration Court of Appeal refused leave to appeal on 23 May 2008.

On 6 August 2008 the applicants lodged a new request for residence permits on the basis that there were impediments to the enforcement of their deportation order. They claimed that the first applicant’s husband had been arrested and taken to the security police, where he had been tortured. The Migration Board rejected the request on 21 October 2008. It held that the requirements for examining the request had not been met since, inter alia, the documentation submitted in support of the application consisted of photocopies which had low value as evidence. Moreover, it was not clear from the documents why the first applicant’s husband had been arrested. The decision was upheld by the Migration Court on 22 December 2008 and on 13 February 2009 the Migration Court of Appeal refused leave to appeal. It should be noted that the applicants have failed to submit these decisions to the Court.

In February 2009 the applicants lodged yet another request for residence permits in Sweden on the basis that there were impediments to the enforcement of their deportation order. They claimed that the first applicant was unable to care for her children because she was depressed and had been treated for this condition at the psychiatric unit at Säter hospital between 3 and 12 February 2009. The hospital had commenced treating the first applicant with medication and the treatment would continue for six months. The fourth, fifth and sixth applicants had been placed in a family home by the social services while the second and third applicants remained in the family’s apartment and took care of themselves. Thus, the applicants requested residence permits, or at least a stay of execution of the deportation order for six months.

On 27 February 2009 the Migration Board rejected the request as it found that the applicants had invoked no new circumstances of importance and that there were no absolute impediments to the enforcement of the applicants’ deportation order.

In June 2009 the applicants lodged another new application for residence permits in Sweden. The first applicant claimed that she had been threatened by one of her assailants by text messages sent to her mobile phone in Sweden and she thought he had obtained the number through contacts with Hutus in Sweden. Moreover, her husband’s family had repudiated her because she had been raped and had had an illegitimate child as a result. The first applicant further invoked her poor mental health and stated that she had attempted to commit suicide by taking an overdose when the Swedish police had tried to deport her and her children at the beginning of June.

The first applicant submitted a medical certificate, dated 17 June 2009, by A.K., psychologist at the Red Cross in Hedemora, which stated that the psychologist had met the first applicant five times and that she had traumas from having been the victim of violence in Burundi. The first applicant showed symptoms of Post Traumatic Stress Disorder (PTSD) and depression for which she was taking medication. During the autumn of 2008 she had had a serious crisis reaction after she had been informed that her husband had probably died. She had attempted suicide, for which she had been treated at a closed psychiatric unit for ten days (in February 2009). According to the psychologist, the police had fetched the first applicant at her home in Sweden in June 2009 to detain her, awaiting the deportation. However, she had tried to commit suicide in the detention centre by drinking soap mixed with her medication. She had heard voices which had told her that her children had been killed and that she should kill herself. In the psychologist’s view, the applicant was now suffering from PTSD, depression with psychotic symptoms and acute stress.

On 23 June 2009 the Migration Board rejected the new request as it found that the applicants had invoked no new circumstances of importance but had only made certain additions and adjustments to their previous claims. Nor did it consider that there were impediments to the enforcement of the deportation order.

On the same day, the applicants’ lawyer submitted a medical certificate and an extract from the first applicant’s medical records from the Crisis and Trauma Centre at Danderyd Hospital, both dated 18 June 2009 and written by H.P.S., psychotherapist and docent in psychiatry.

According to the medical certificate, which was based on the medical records, the first applicant was taking antidepressants and sleeping pills. She heard voices which had prompted her to three suicide attempts. She fulfilled the criteria for PTSD and depression and was in need of treatment. In the doctor’s view, there were impediments to the enforcement of the deportation order due to the first applicant’s poor mental health, since being deported might cause her to lose her sense of reality and try to commit suicide again.

The Migration Board considered that this material should be considered as a new request for residence permits and decided to stay the enforcement of the deportation order while it considered the request. Moreover, the Board found that the information about the first applicant’s poor mental health was of a certain importance, for which reason it assigned P.N., physician and specialist in psychiatry, to examine the first applicant in order to evaluate her state of health and whether an enforcement of the deportation order would be possible from a medical point of view.

After having consulted the first applicant’s medical records and examined her, Dr P.N. concluded that her mental health problems did not amount to a serious mental disorder and that there was no impediment to the enforcement of the deportation order from a medical point of view. However, he considered that experienced and competent personnel should be present during the deportation as the first applicant’s anxiety could escalate and manifest itself through self-destructive behaviour.

On 12 August 2009 the Migration Board, having regard to Dr P.N.’s evaluation, decided that there were no impediments to the enforcement of the deportation order and that the applicants could not be granted leave to remain in Sweden. It also lifted the stay on the deportation order.

The provisions applicable in the present case are laid down in the Aliens Act (Utlänningslagen, 2005:716). The Act defines, inter alia, the conditions under which an alien can be deported or expelled from Sweden as well as the procedures relating to the enforcement of such decisions.

The 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 (Chapter 5, section 1). 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 (Chapter 4, section 1). 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).

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). In addition, an alien must not, in principle, be sent to a country where he or she risks persecution (Chapter 12, section 2).

Under certain conditions, an alien may be granted a residence permit even if a deportation or expulsion order has gained legal force. This is the case where new circumstances give 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 where there are medical or other special reasons why the order should not be enforced (Chapter 12, section 18). If a residence permit cannot be granted under these rules, 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, and these circumstances could not have been invoked previously or the alien shows that he or she has a valid excuse for not having done so. Should the applicable conditions not be met, the Migration Board shall decide not to grant a re-examination (Chapter 12, section 19).

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).

The United States Department of State Country Reports on Human Rights Practices concerning Burundi of 2010, dated 8 April 2011, sets out, inter alia, the following:

“Burundi is a constitutional republic with an elected government and a population of 8.6 million. From May to September, the country held elections for all public offices, including the first direct presidential elections since 1993. Following the May 25 Communal Council elections, which the international community characterized as generally free and fair, a coalition of 12 opposition parties alleged massive fraud and called for the annulment of the results and new elections. When the parties’ demands were not met, they withdrew their candidates from the subsequent presidential, legislative, and "colline" elections. President Pierre Nkurunziza, of the ruling National Council for the Defense of Democracy-Forces for the Defense of Democracy (CNDD-FDD) party, ran unopposed in the June presidential election and was reelected to a second term.

International observers characterized the elections as generally free and fair, although there were reports of political violence leading up to and throughout the five-month election season. Security forces reported to civilian authorities. There were instances in which elements of the security forces acted independently of civilian control.

The law prohibits rape, which is punishable by up to 30 years’ imprisonment; however, the government did not enforce the law effectively, and rape and other sexual violence against women and girls were problems. The rape of minors, or rape committed by persons who infect their victim with an incurable sexually transmitted disease, is punishable by life imprisonment. Spousal rape is punishable by fines of 10,000 to 50,000 francs ($8 to $40) and eight days’ imprisonment.

Many women were reluctant to report rape for cultural reasons, fear of reprisal, and the unavailability of medical care. Men often abandoned their wives following acts of rape, and rape victims were ostracized. Police and magistrates regularly required that victims provide food for and pay the costs of incarceration of those they accused of rape. According to a March 2009 report by Médecins Sans Frontières de Belgique (MSF-Belgium), many victims who sought judicial redress faced an unresponsive judicial system, and courts often refused to act on cases without witnesses. Some victims were reportedly required to pay 15,000 francs ($12.07), a large sum for most victims, to obtain a certified medical report. Other problems included judges who did not regard rape as a serious crime and a lack of medical facilities to gather medical evidence. According to women’s rights organizations, at times families or communities forced victims to withdraw their complaints and negotiate settlements with the perpetrator or his family outside of the formal judicial system. In other cases the victims were forced by their families and local arbiters to marry their attackers. According to the local NGO Centre Seruka, 60 percent of persons responsible for rape were arrested, and of these 30 percent were prosecuted. As of September the APRODH recorded 61 rapists arrested. Of the limited number of cases that were investigated, successful prosecutions of rapists were rare.

During the year the Ministry of Solidarity began compiling rape statistics through decentralized family development centers (CDF) throughout the country. According to CDF reports, there were 1,556 reported cases of gender-based violence as of July. The ADDF received reports of 3,701 cases of rape and domestic violence as of September, most of which occurred in Bujumbura and its outlying areas. Centre Seruka, equipped in part by MSF-Belgium and funded by the UN, received 742 victims during the year at its center for rape victims in Bujumbura. Of the victims they assisted, 60 percent were raped by persons they knew, including members of their families, cooks, and neighbors. Local and international NGOs, the government, and the UN claimed the number of rape victims was likely much higher.

Civil society and religious communities worked to overcome the cultural stigma of rape to help victims reintegrate into families that had rejected them. Ligue Iteka, the APRODH, the ADDF, and BINUB continued to encourage rape victims to press charges and to seek medical care, and international NGOs provided free medical care, mostly in urban areas. The government also raised awareness of the problem through seminars and local initiatives describing the kinds of medical care available...”

According to the fifth Report of the Secretary General on the United Nations Integrated Office in Burundi (document S/2010/608), dated 30 November 2010, the security situation, although relatively stable during the period under Review (December 2009 to November 2010), remains a concern. The incidence of criminal activities remained high, with acts of armed robbery, killings and sexual violence. Those acts are largely attributed to the widespread circulation of weapons, land disputes and the socio-economic situation in the country. During the electoral period, there was a massive deployment of security forces throughout the country.

Amnesty International reported in its Report 2009 – Burundi that there continued to be a high incidence of rape and other sexual violence against women and girls during 2008. For example, a centre run by Médecins sans Frontières in Bujumbura received an average of 131 rape victims a month in 2008.

The applicants complained under Article 3 of the Convention that, if returned to Burundi from Sweden, they would be persecuted and killed by persons linked to the authorities because the first applicant and her husband had enquired into the early release of G. Moreover, they were afraid of being marginalised and stigmatised because the sixth applicant had been conceived when the first applicant had been raped and therefore will never be accepted in Burundian society. Lastly, the applicants claimed that the first applicant was in such poor mental health that the enforcement of the deportation order against them would lead to irreparable harm for the first applicant.

The applicants complained that the enforcement of the deportation order to Burundi 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”

The applicants maintained that their rights under Article 3 of the Convention would be violated if they were deported from Sweden to Burundi.

They held that the first applicant had not altered her story to the extent that her credibility should be questioned. Small details admittedly differed in her story, but this was due to her being stressed and depressed.

They alleged that they no longer had a home and a social network to support them in Burundi. The first applicant’s husband was missing and there had been no word from him in a long time. Since he had disappeared, the applicants were considered a burden to his family, especially since the first applicant only had daughters.

The applicants further alleged that the reason why the first applicant knew that the sixth applicant had been conceived when she was raped was that she had suffered from pre-eclampsia during the pregnancy, from which she had not suffered during her other pregnancies. The doctor had concluded that this and the blood group of the sixth applicant had showed that she could not have had the same father as the other children. The husband of the first applicant had mentioned this to his brother, who had then passed the information on to the rest of the family, friends and neighbours.

As to the mental health of the first applicant, the applicants held that her state of health had deteriorated and that she was in need of treatment. They also pointed out that there would be no one to care for the children if the first applicant were to end up in hospital in Burundi.

The Government submitted that the application should be declared inadmissible as being manifestly ill-founded.

They initially pointed out that while there were legitimate reasons to express concerns with respect to the human rights situation in Burundi, the situation in itself was not sufficient to establish that the forced return of the applicants to Burundi would entail a violation of Article 3 of the Convention.

The Government referred to the findings of the Migration Board and the Migration Court. They further noted that there were inconsistencies in the first applicant’s story and that her credibility could be questioned.

They also pointed out that the allegation regarding the risk of the applicants being ostracised due to the stigma that is attached to the crimes committed against them in Burundian society had been added by the applicants before the Court. They held that this fact weakened the credibility of this allegation.

Likewise, the claim by the first applicant that her husband’s family had repudiated her because she was raped and had an illegitimate child was not put forward until a very late stage in the asylum procedure, namely in June 2009 in support of the third new request for a residence permit. The Government found it unlikely that the first applicant’s brother-in-law, who had supplied her with documents that she had submitted to the Swedish authorities, would have been unaware of these circumstances until that point.

Furthermore, it was for the applicants to substantiate their allegation that they lacked a social network in Burundi. In this regard, it was also pointed out that before the domestic authorities the first applicant had claimed that she had been in contact with both her husband and her brother in Burundi. Moreover, since the documents which the first applicant’s brother-in-law allegedly supplied to the applicants were dated March and April 2008, it was evident that she had been in contact with her family-in-law a long time after the sixth applicant was born.

The Government also held that the first applicant was well educated and came from a family that appeared to be relatively well-off, considering they had servants at home. It also noted that the applicants, in their written application to the Migration Board, had stated that, although the first applicant’s husband had trouble coping with the fact that his spouse had been raped and wanted her to have an abortion, the couple did not fall out over the issue.

The Government went on by noting that there was no evidence to support that the sixth applicant was conceived when the first applicant was raped. Since this information allegedly was provided by staff at a Swedish hospital in connection with the birth of the child in July 2007, the applicants should be able to obtain such evidence from the hospital in question.

They further noted that in her application for asylum, dated 5 July 2007, the first applicant had stated that the reason why she had refused to have an abortion was that her husband could be the child’s father. Moreover, the applicants had not explained how the assumption that the sixth applicant was the result of the rape had come to the attention of the public in the community in Burundi where they used to reside.

The Government also submitted a medical certificate dated 6 August 2009 signed by Dr. P.N., a physician and specialist in psychiatry, who was assigned by the Migration Board in order to evaluate the first applicant’s state of health before deciding on the applicants’ fourth new request for residence permits. He had found that her mental health problems could not be regarded as a serious mental disorder and had concluded that there was no lasting impediment to the enforcement of the deportation order from a medical point of view.

The Government further observed that even if it was accepted that her state of health had recently deteriorated – an allegation not supported by any medical evidence – it was obviously not such that it had been necessary for her to be admitted to hospital. Moreover, she had previously been able to obtain access to medical care in Burundi and there was nothing to indicate that she would not be able to receive medical care again if needed. Also, her state of health seemed to a large degree to be connected to the fact that she risked being deported and to the uncertainties about her future.

The Government thus concluded that the first applicant’s state of health could not be considered as serious enough to make an enforcement of the expulsion order contrary to the standards of Article 3 of the Convention.

In conclusion, the Government maintained that there were no substantial grounds for believing that Article 3 of the Convention would be violated if the applicants were returned to Burundi.

The 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 (See, inter alia, Üner v. the Netherlands [GC], no. 46410/99, § 54, ECHR 2006 XII; Abdulaziz, Cabales and Balkandali v. the United Kingdom, 28 May 1985, § 67, Series A no. 94; and Boujlifa v. France, 21 October 1997, § 42, Reports of Judgments and Decisions 1997 VI.

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, 28 February 2008).

The assessment of whether there are substantial grounds for believing that the applicant faces such a real risk inevitably requires that the Court assess 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).

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). 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, N. v. Sweden, no. 23505/09, § 53, 20 July 2010 and Collins and Akasiebie v. Sweden (dec.), no. 23944/05, 8 March 2007).

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. 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 non-Contracting States, agencies of the United Nations and reputable non-governmental organisations (see, NA. v. the United Kingdom, no. 25904/07, § 119, 17 July 2008.

Aliens who are subject to expulsion cannot, in principle, claim any entitlement to remain in the territory of a Contracting State in order to continue to benefit from medical, social or other forms of assistance and services provided by the expelling State. The fact that the applicant’s circumstances, including his life expectancy, would be significantly reduced if he were to be removed from the Contracting State is not sufficient in itself to give rise to breach of Article 3. The decision to remove an alien who is suffering from a serious mental or physical illness to a country where the facilities for the treatment of that illness are inferior to those available in the Contracting State may raise an issue under Article 3, but only in a very exceptional case, where the humanitarian grounds against the removal are compelling (see, N. v. the United Kingdom [GC], no. 26565/05, § 42, 27 May 2008).

The Court first considers that there are no indications that the situation in Burundi is so serious that the return of the applicants thereto would constitute, in itself, a violation of Article 3 of the Convention.

While aware of the high number of rapes in Burundi the Court thus has to establish whether the applicants’ personal situation is such that their return to Burundi would contravene Article 3 of the Convention.

The Court first turns to the applicants’ allegation that they would face persecution by individuals linked to the Burundian authorities.

Like the Swedish authorities, the Court does not question that the first applicant was the victim of rape in December 2006 and that this has left her with serious traumas as set out in the medical certificates. The applicants’ allegation that the Burundian authorities were implicated in the rape is however not substantiated in any way. Since the applicant reported the rape to the authorities, it seems implausible that she could have believed that they were responsible for it. The Court also notes that the police started an investigation of the crime and that neither the first applicant nor her husband have ever been politically active.

Having regard to the above, the Court finds that the applicants have failed to show that they would face a real risk of being persecuted by the Burundian authorities if returned to Burundi.

The applicants also complained that they are afraid of being marginalised and stigmatised because the sixth applicant was conceived when the first applicant was raped and therefore will never be accepted in Burundian society. The Court notes that the applicants have provided vague and contradictory information in this regard and have not shown that the first applicant’s husband cannot be the father of the sixth applicant. Since the information allegedly was provided by staff at a Swedish hospital in connection with her birth in July 2007, the applicants should have been able to obtain such evidence from the hospital in question.

The applicants initially stated that, although the first applicant’s husband had trouble coping with the fact that his spouse had been raped and wanted her to have an abortion, the couple did not fall out over the issue. The first applicant also stated that, since arriving in Sweden, she had been in touch not only with her husband but also with her brother. The allegation that the first applicant had been repudiated by her husband’s family was not put forward until June 2009, in support of the third new request for a residence permit.

Furthermore, the applicants have not elaborated how the assumption that the sixth applicant is the result of a rape came to the attention of the public in the community in Burundi where they used to reside. Before the Court, the applicants stated that the first applicant’s husband had mentioned it to his brother who had told the rest of the family as well as friends and neighbours. It is however unclear when this happened and how the applicants found out about it, especially since they alleged that the first applicant’s husband had disappeared and that they had not heard from him in a long time.

Having regard to the circumstances referred to above, the Court finds that the applicants have not substantiated their claim that they would run a real risk of being marginalised and stigmatised in Burundian society.

The Court then turns to the applicants’ claim that an implementation of the deportation order to return them to Burundi would be in violation of Article 3 due to the first applicant’s poor mental health. The question is thus whether her case is so exceptional that humanitarian grounds against the removal are compelling.

The applicant did not invoke poor mental health as a motive for asylum either when she arrived in Sweden or during the first proceedings before the Migration Board, the Migration Court and the Migration Court of Appeal, which led to a final refusal to grant her asylum on 15 May 2008. Thereafter, the applicant’s mental health deteriorated and included suicide attempts.

The most recent medical certificate submitted by the applicants in the case was from June 2009, issued by a psychotherapist and docent in psychiatry, which stated, inter alia, that the first applicant was suffering from an acute crisis reaction and depression. He concluded that the applicant’s state of mental health was fairly bad and that there was a risk of suicide.

The Court observes that the applicants have not provided any evidence in support of their allegation that the mental health of the first applicant has recently deteriorated. However, even if it is accepted that her state has deteriorated, it is not such that it has been necessary for her to be admitted to hospital. Moreover, her state of health seems to a large degree to be connected to the situation she is in at the moment, where she faces the risk of being expelled from Sweden.

The Court further considers that there are no elements either indicating that the State and the psychotherapist previously involved will not react to a concrete threat as far as possible or that the State will enforce the deportation order if it is medically impossible for the applicant to travel to her home country.

The Court also notes that medical treatment is available in Burundi and that the first applicant has previously received treatment there. The fact that the applicant’s circumstances would be less favourable than those she enjoys in Sweden cannot be regarded as decisive from the point of view of Article 3 (see Bensaid v. the United Kingdom, no. 44599/98, § 38, ECHR 2001-I; Salkic and others v. Sweden (dec.), no. 7702/04, 29 June 2004; and Al-Zawatia v. Sweden (dec.) no. 50068/08, 22 June 2010).

Accordingly, having regard to the high threshold set by Article 3, particularly where the case does not concern the direct responsibility of the Contracting State for the possible harm, in the Court’s view, the present case does not disclose very exceptional circumstances.

Having regard to all of the above, the Court concludes that the applicants have not established that there are substantial grounds for believing that they would be subjected to treatment contrary to Article 3 of the Convention if they were to be deported to Burundi. It follows that the application is manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention.

Accordingly, the application must be rejected pursuant to Article 35 § 4 of the Convention. The application of Rule 39 of the Rules of Court thus comes to an end.

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You are here: BAILII >> Databases >> European Court of Human Rights >> H.N. and Others v Sweden - 50043/09 [2012] ECHR 221 (24 January 2012) URL: http://www.bailii.org/eu/cases/ECHR/2012/221.html Cite as: [2012] ECHR 221