Committee against Torture

Decision adopted by the Committee under article 22 of the Convention, concerning communication No. 883/2018 * , **

Communication submitted by:V.M., G.M., S.M. and T.M. (represented by counsel, Robert Nyström)

Alleged victims:The complainants

State party:Sweden

Date of complaint:31 August 2018 (initial submission)

Document references:Decision taken pursuant to rules 114 and 115 of the Committee’s rules of procedure, transmitted to the State party on 23 January 2019 (not issued in document form)

Date of adoption of decision:19 July 2021

Subject matter:Deportation to Armenia

Procedural issues:Failure to sufficiently substantiate claims

Substantive issues:Risk to life or risk of torture or other cruel, inhuman or degrading treatment if deported to country of origin (non-refoulement)

Article of the Convention:3

1.1The complainants are V.M., born in 1982, his wife G.M., born in 1988, and their children T.M. and S.M., all citizens of Armenia. Their applications for asylum have been rejected by Sweden. The complainants claim that their deportation to Armenia would constitute a violation of their rights under article 3 of the Convention. The complainants are represented by counsel.

1.2On 3 September 2018, pursuant to rule 114, paragraph 1, of its rules of procedure, the Committee, acting through its Rapporteur on new complaints and interim measures, requested the State party not to expel the complainants while their communication was being considered.

Facts as submitted by the complainants

2.1The complainant V.M. is of Azerbaijani ethnicity. In 2008, he lived in Armenia with his wife. He had been helping his cousin, who was a journalist: his cousin had asked him to hand over to a third person a videotape that documented police violence against opponents of the Government during a demonstration in 2008. The complainant was supposed to leave the videotape at a certain place, for a third person to pick it up. The videotape was never taken by that person and seemed to have disappeared. The day after the arranged handover, the police came to V.M.’s home and accused him of having the videotape in his possession. V.M. was questioned and assaulted in his house by police officers for several hours. He was then subsequently visited several times, questioned and assaulted by the police and put in detention. Due to those events, V.M., and his wife G.M., were forced to leave Armenia. As the police were implicated in the incidents, the complainants felt that they would not obtain protection in Armenia, and that any ensuing judicial proceedings would not be effective.

2.2During 2008, the adult complainants fled to Ukraine, where they obtained work permits. In 2014, when the war broke out in Ukraine, V.M. was called to serve as a soldier. When he refused, he was labelled a deserter. V.M., together with his wife and first son, who had been born in Ukraine, had to flee again, this time to Sweden. The complainants do not specify their date of arrival in Sweden.

2.3On 4 January 2015, the family applied for asylum in Sweden. On 9 October 2015, their daughter was born in Sweden and her application for asylum was submitted on 27 October 2015. In their asylum applications, they claimed that they could not relocate within Armenia, since they feared a risk of persecution for their perceived political opinions, including the perceived possession of the videotape documenting abusive use of force by the police against demonstrators.

2.4On 4 September 2017, the Swedish Migration Agency rejected the family’s applications for asylum and decided that they should be deported to Armenia. The Agency argued that the family could obtain protection from the authorities in Armenia as the abuses had been committed by individual police officers acting outside their professional capacity. The Agency further held that the family should be able to obtain protection through national courts. The family appealed against this decision to the Migration Court, requesting an oral hearing, which was not granted.

2.5On 12 April 2018, the Court rejected their appeal. The Court did not question the fact that the complainant had been subjected to police violence; it found, however, that the family could obtain protection in Armenia. The complainants requested leave to appeal against that decision to the Migration Court of Appeal, which denied them leave to appeal, on 16 May 2018. Neither the Swedish Migration Agency nor the Migration Court questioned the complainants’ accounts of events.

2.6The complainants also submitted that on 8 March 2018, two police officers came to their family home in Armenia, asking about V.M.’s whereabouts. V.M.’s mother had also been contacted by phone several times by unknown persons asking for her son. She also noticed individuals wandering around her house, and recognized one of them as a police officer working in the neighbourhood.

Complaint

3.1The complainants claim that there is a consistent pattern of gross and systematic violations of human rights in Armenia, especially against journalists and opponents, who are particularly subjected to persecution and abuses by the police. The complainants assert that there are no effective remedies for victims of police violence in Armenia, and that the police operate with impunity. Therefore, they maintain that they could not obtain protection from the authorities upon return to Armenia.

3.2The complainants claim that their deportation to Armenia would violate their rights under article 3 of the Convention, as they would be at a personal and real risk of being persecuted, tortured and ill-treated upon return. The complainants submit that the risk exists due to the fact that the father is still wanted by the police and that the family would not be able to obtain protection from the authorities.

State party’s observations on admissibility and the merits

4.1On 24 April 2019, the State party submitted that the complainants’ case had been assessed under the Aliens Act of 2005. The migration authorities, upon examining the facts of the case, had concluded that the complainants had not shown that they were in need of protection.

4.2The State party enclosed its own translations of the proceedings of the Swedish migration authorities to show the reasoning behind the State party’s decision to expel the complainants. The findings confirm that the complainants are not in need of protection and can be expelled to Armenia. The State party recalled that the first, second and third complainants applied for asylum on 4 January 2015, and as the fourth complainant was born in Sweden on 9 October 2015, her application for asylum was submitted on 27 October 2015. Their asylum applications were rejected on 4 September 2017. The decision was appealed to the Migration Court, which rejected the appeal on 12 April 2018. On 16 May 2018, the Migration Court of Appeal refused leave to appeal and the decision to expel the complainants became final.

4.3The State party did not contest that the complainants had exhausted all domestic remedies. However, the complainants failed to sufficiently substantiate their claims, and therefore their complaint should be considered inadmissible pursuant to article 22 (2) of the Convention.

4.4Regarding the merits of the communication, the State party asserted that, in considering the present case, it had examined the general human rights situation in Armenia, in particular the personal risk to the complainants of being subjected to torture if returned there. The State party noted that it was incumbent upon the complainants, who must present an arguable case, to establish that they ran a foreseeable, personal, present and real risk of being subjected to torture. In addition, while the risk of torture must be assessed on grounds that go beyond mere theory or suspicion, it does not have to meet the test of being highly probable.

4.5The State party further submitted that it was aware of the current human rights situation in Armenia, referring to recent reportsby the Swedish Ministry for Foreign Affairs, Freedom House, the United States Department of State, Amnesty International and Human Rights Watch. While the State party did not wish to underestimate the concerns that may legitimately be expressed with respect to the current human rights situation in Armenia, it concluded that the prevailing situation there could not be deemed such that there was a general need to protect all asylum seekers from the country. It concluded that the current lack of respect for human rights in and of itself was not sufficient, and that the complainants must show a personal and real risk of being subjected to treatment contrary to article 3 of the Convention.

4.6The State party submitted that several provisions of the Aliens Act reflected the principles contained in article 3 of the Convention, and therefore the State party’s authorities applied the same kind of test when considering asylum applications. According to sections 1 to 3 of chapter 12 of the Aliens Act, a person seeking asylum cannot be returned to a country where there are reasonable grounds to assume that he or she would be in danger of being subjected to the death penalty, corporal punishment, or torture or other degrading treatment or punishment.

4.7Furthermore, the State party recalled that both the Swedish Migration Agency and the Migration Court had conducted thorough examinations of the complainants’ case. The Agency had held an introductory interview with the adult complainants on 5 January 2016. On 11 January 2016, the Agency had held an extensive asylum investigation with both of them that had lasted altogether about five hours. An additional asylum investigation had taken place with them on 11 March 2016 which had lasted about two hours. The complainants had been represented by public counsel, and had communicated through interpreters. Furthermore, the complainants had been given an opportunity to review and comment on the written records of all the interviews.

4.8The State party therefore claims that both the Swedish Migration Agency and the Migration Court had sufficient information to make a well-informed, transparent and reasonable risk assessment. The State party recalled the Committee’s Views in which the Committee had confirmed that it was not an appellate, quasi-judicial or administrative body, and also recalled that considerable weight must be given to findings of facts made by organs of the State party concerned.

4.9The State party notes that as the case concerns two minors, the domestic authorities have, in accordance with national law, paid due regard to the principle of the best interests of the child and have thus considered the consequences that an expulsion order might have for the children’s health and development, in compliance with chapter 1, section 10 of the Aliens Act and based on article 3 of the Convention on the Rights of the Child.

4.10The State party recalls the facts of the communication and emphasizes that due consideration was given to whether the complainants’ account was coherent and detailed and did not contradict generally known facts or available information about the country of origin. Contrary to what the complainants have stated before the Committee, the Swedish Migration Agency considered that V.M. had not submitted a credible or reliable account regarding the alleged threat against him in Armenia. Firstly, the Agency questioned whether the police were indeed interested in him, since they repeatedly released him from custody after questioning him about the videotape. Nor did the Agency find it credible that the police would repeatedly detain V.M. to obtain a videotape to ensure that its contents would not come to the attention of the public, as similar contents were already available on the Internet. The State party was of the view that there were reasons to question the credibility and reliability of the claims by V.M. in this regard.

4.11Regardless of whether V.M. had been subjected to repeated abuse and detention, the Swedish Migration Agency found that nothing had emerged indicating that these actions had been ordered by the Armenian State. Instead, it appeared to be a case of individual police officers acting outside their professional capacity. The Agency noted that the complainants had not requested help or protection from the Armenian authorities. The Agency further held that it was a basic principle that national protection took precedence over international protection and that only in cases where the authorities in the country of origin lacked the will or the ability to assist the individual was it possible to receive protection in Sweden. The Agency considered that even though there may be certain deficiencies in the Armenian judicial system, protection from the authorities was available. The Agency also noted that the incidents had happened a long time ago. Consequently, the Agency concluded that the complainants could not be considered to have exhausted all possibilities for protection in Armenia, which was a requirement for being entitled to international protection.

4.12The State party recalled that in the complainants’ appeal before the Migration Court, they requested an oral hearing. The Court rejected the complainants’ request for an oral hearing, on 10 September 2017. It referred to the nature of the case and the information available as reasons why an oral hearing was deemed unnecessary, in compliance with chapter 16, section 5, of the Aliens Act. According to the Act, the procedure in the Migration Court is in writing, unless it is assumed that an oral hearing would be advantageous for the investigation or promote a rapid resolution of the court action. On 22 February 2018, the complainants made an additional request for an oral hearing, which the Court rejected on 23 February 2018. The complainants were, however, invited to make additional written submissions.

4.13Before the Migration Court, the complainants stated that the Armenian authorities had often refused to investigate accusations that officials had used violence or other forms of mistreatment and that impunity was widespread, which was why they had not been able to take the police officers to court. The Migration Court recognized that there may be deficiencies in the Armenian judicial system, that impunity was a widespread problem, that journalists had occasionally been subjected to police violence and that there were reports of abuse during police interrogations. However, it did not support the claim that the Armenian authorities subjected their citizens to persecution in the manner referred to by the complainants.

4.14The Migration Court did not question the complainants’ account of what they had been subjected to in Armenia. It reiterated, however, that the actions had been performed by individual police officers acting outside their official capacity. The Court also found that the explanations provided by the complainants as to why they had chosen not to turn to the Armenian authorities did not constitute acceptable reasons for not seeking national protection.

4.15The State party concluded that there were serious doubts regarding the credibility of V.M.’s stated need for protection and that the incidents he had suffered could not be considered sufficient to rise to the level of persecution qualifying them for international protection since they had not exhausted the available possibilities for protection in Armenia. The State party added that no evidence had been submitted to support the claim that the first complainant would be of interest to the police officers today.

4.16The State party submitted that the complainants had been given many opportunities to explain the relevant facts and circumstances in support of their claimed need for protection and to argue their case, orally as well as in writing. The domestic authorities had thoroughly examined all the facts and evidence submitted by the complainants during the national asylum process. In addition, the Swedish Migration Agency had had the benefit of seeing, interviewing and questioning the complainants in person, directly assessing the information and documents submitted by them and examining the veracity of the claims made.

4.17The State party found no reason to question the conclusions reached during the national asylum process, regarding the need for protection as described by the complainants in their complaint to the Committee. It concluded that the complainants’ account and the facts relied upon in their complaint were insufficient to conclude that the alleged risk of ill-treatment upon their return to Armenia would meet the threshold of being foreseeable, personal, present and real. Consequently, an enforcement of the expulsion order would not, under the present circumstances, constitute a violation of the State party’s obligation under article 3 of the Convention. Therefore, the communication should be declared inadmissible, as manifestly ill-founded.

Complainants’ comments on the State party’s observations

5.1On 11 July 2019,the complainants submitted their comments on the State party’s observations. Responding to the State party’s comments on credibility, the complainants submitted that V.M. had made a very detailed and thorough description of his case and deplored the fact that the family had not been granted an oral hearing at the Migration Court. The fact that the State party’s authorities had made their own subjective analysis regarding V.M.’s statement should not affect the credibility of the complainants’ case. The credibility assessment of an asylum seeker’s story should be made objectively, which had not been the case.

5.2The complainants deplored the State party’s argument that the family should turn to the police in Armenia to seek protection. A police officer was always representing the State and it should not be appropriate to refer asylum applicants to other police in the same country to get national protection if the threat came from the police, especially in a country such as Armenia where corruption and deficiencies in the judicial system were widespread. In addition, the question as to whether an asylum seeker has protection needs should be assessed prior to the question of whether it is possible for the asylum seeker to obtain protection or relocation within his or her country of origin.

5.3The complainants reiterated that it was very unfortunate that the Migration Court had not granted the family an oral hearing. They submitted that in cases where credibility was challenged, it was common practice to have an oral hearing so that the complainants would have an opportunity to respond to any doubts that the State party may have. In the present case, this procedure had not been followed, which was a serious breach of the complainants’ right to a proper investigation. Since the Court did not grant them an oral hearing, its judgement was not based on a thorough and meaningful investigation.

5.4Regarding the fact that it had been a long time since the family had been in Armenia, the complainants recalled that there had been no indications that threats from the authorities in Armenia had ceased to exist after a certain time. In any case, they reiterated that their family had received threats from people looking for V.M., indicating that he was still a person of interest to the authorities of Armenia.

State party’s additional observations

6.1On 17 January 2020, the State party reiterated its previous arguments and pointed out that the complainants’ further observations did not include any new submissions in substance which had not already essentially been covered by the State party’s observations of 24 April 2019. The State party nevertheless clarified that even if there might be aspects of the complainants’ submissions that it had not addressed, that should not be interpreted as acceptance of those assertions.

6.2The State party also clarified that when someone has plausibly demonstrated that he or she is in need of international protection, the Swedish migration authorities apply Swedish administrative and immigration law as well as, inter alia, the procedure for establishing facts in accordance with paragraphs 195 to 205 of the Office of the United Nations High Commissioner for Refugees (UNHCR) Handbook on Procedures and Criteria for Determining Refugee Status under the 1951 Convention and the 1967 Protocol relating to the Status of Refugees. The Migration Court of Appeal has clarified that an examination is made in two steps: to examine whether the complainant’s asylum claim is sufficient to constitute a need for international protection and to assess whether the complainant is considered credible. If, for example, the stated reasons for asylum are deemed insufficient to constitute grounds for international protection, there is no need to assess the asylum seeker’s credibility. In the present case, the Swedish Migration Agency did question the credibility of the complainants’ asylum claims, due to a number of circumstances. However, both the Agency and the Migration Court concluded that the stated grounds for asylum were in any case insufficient to warrant the complainants’ international protection. Accordingly, it was not necessary for the Court to hold an oral hearing in order to examine the complainants’ credibility.

6.3In sum, the State party reiterates its position that the complainants’ claims and the facts relied on by them are insufficient to conclude that the alleged risk of ill-treatment upon their return to Armenia meets the requirements of being foreseeable, personal, present and real. Accordingly, there is no reason to conclude that the national decisions or rulings were inadequate or that the outcome of the domestic proceedings was in any way arbitrary or amounted to a denial of justice.

Issues and proceedings before the Committee

Consideration of admissibility

7.1Before considering any complaint submitted in a communication, the Committee must decide whether it is admissible under article 22 of the Convention. The Committee has ascertained, as it is required to do under article 22 (5) (a) of the Convention, that the same matter has not been and is not being examined under another procedure of international investigation or settlement.

7.2In accordance with article 22 (5) (b) of the Convention, the Committee shall not consider any communication from an individual unless it has ascertained that the individual has exhausted all available domestic remedies. The Committee notes that the complainants’ asylum application was rejected by the Swedish Migration Agency on 4 September 2017, that the Migration Court rejected their appeal against a negative decision on 12 April 2018, and that the Migration Court of Appeal denied the complainants’ request for leave to appeal on 16 May 2018. The Committee also notes that, in the present case, the State party has not contested that the complainants have exhausted all available domestic remedies. The Committee therefore finds that it is not precluded from considering the communication under article 22 (5) (b) of the Convention.

7.3The Committee notes the State party’s submission that the communication is manifestly ill-founded and thus inadmissible pursuant to article 22 (2) of the Convention. The Committee observes, however, that the complaint raises substantive issues under article 3 of the Convention as to the alleged risks of persecution, torture and ill-treatment by the authorities of Armenia, which have been adequately substantiated for the purposes of admissibility, and that those claims should be examined on the merits. As the Committee finds no further obstacles to admissibility, it declares the communication admissible and proceeds with its consideration of the merits.

Consideration of the merits

8.1The Committee has considered the communication in the light of all the information made available to it by the parties, in accordance with article 22 (4) of the Convention.

8.2In the present case, the issue before the Committee is whether the forcible removal of the complainants including their children to Armenia would constitute a violation of the State party’s obligation under article 3 of the Convention not to expel or to return (“refouler”) a person to another State where there are substantial grounds for believing that he or she would be in danger of being subjected to torture.

8.3The Committee must evaluate whether there are substantial grounds for believing that the complainants would be personally in danger of being subjected to torture upon return to Armenia. In assessing that risk, the Committee must take into account all relevant considerations, pursuant to article 3 (2) of the Convention, including the existence of a consistent pattern of gross, flagrant or mass violations of human rights. However, the Committee recalls that the aim of such determination is to establish whether the individual concerned would be personally at a foreseeable and real risk of being subjected to torture in the country to which he or she would be returned. It follows that the existence of a pattern of gross, flagrant or mass violations of human rights in a country does not as such constitute sufficient reason for determining that a particular person would be in danger of being subjected to torture on return to that country; additional grounds must be adduced to show that the individual concerned would be personally at risk. Conversely, the absence of a consistent pattern of flagrant violations of human rights does not mean that a person might not be subjected to torture in his or her specific circumstances.

8.4The Committee recalls its general comment No. 4 (2017), according to which the non-refoulement obligation exists whenever there are “substantial grounds” for believing that the person concerned would be in danger of being subjected to torture in a State to which he or she is facing deportation, either as an individual or a member of a group which may be at risk of being tortured in the State of destination. The Committee recalls that “substantial grounds” exist whenever the risk of torture is “foreseeable, personal, present and real”.

8.5The Committee also recalls that the burden of proof is on the author of the complaint, who must present an arguable case, that is, submit substantiated arguments showing that the risk of being subjected to torture is foreseeable, personal, present and real. The Committee also recalls that it gives considerable weight to findings of fact made by organs of the State party concerned, however it is not bound by such findings and will make a free assessment of the information available to it in accordance with article 22 (4) of the Convention, taking into account all the circumstances relevant to each case.

8.6In the present case, the Committee notes the complainants’ claim that V.M. was abused, harassed and detained several times by police officers in Armenia and that the family is afraid of being persecuted, tortured or ill-treated if they are sent back to their country of origin. The Committee also notes the complainants’ argument that V.M. remains a person of interest to the Armenian authorities due to his perceived political opinion. The Committee further notes the complainants’ argument that the fact that the adult complainants were not provided with an oral hearing before the Migration Court amounts to a breach of their right to a proper hearing and investigation. The Committee notes that the complainants consider that the State party did not accurately assess their credibility. The Committee notes the State party’s arguments that the complainants did not seek national protection in Armenia and that the alleged facts do not reach the threshold for granting international protection, thus, they cannot seek international protection from the Swedish authorities. The Committee also notes the State party’s assertion that the abuses are isolated acts committed by police officers acting outside of their duties. The Committee further notes the State party’s argument that an oral hearing was held by the Swedish Migration Agency and that it is not a mandatory part of the procedure before the Migration Court, and that, in the present case, it was not deemed necessary, in accordance with the applicable rules and procedures. The Committee also notes the State party’s argument that the complainants have not sufficiently substantiated their claim that they would be persons of interest at present.

8.7As regards the general human rights situation in Armenia, the Committee observes that the complainants claim that there is a consistent pattern of gross and massive violations of human rights in Armenia, especially against journalists and opponents, as well as a lack of effective remedies for victims of police violence. The complainants submit that for this reason, they would not be able to seek protection from the authorities in Armenia. In that connection, the Committee refers to its concluding observations on the fourth periodic report of Armenia, in which it expressed concern at, inter alia, the persistent allegations of torture and ill-treatment perpetrated by law enforcement officials during arrest, detention and interrogation, and at the remaining deficiencies in investigating and prosecuting such complaints effectively. However, the Committee recalls that the occurrence of human rights violations in the country of origin is not sufficient in itself to conclude that a complainant runs a personal risk of torture, and that additional grounds must be adduced to show that the individual concerned would be personally at risk.

8.8The Committee recalls that the burden of proof is on the author of the complaint, who has to present an arguable case, unless the complainant is in a situation where he or she cannot elaborate on his or her case. In the light of the above-mentioned considerations and on the basis of all the information submitted by the complainants and the State party, including on the general situation of human rights in Armenia, the Committee considers that the complainants have disagreed with the assessments carried out by the Swedish migration authorities; however, the complainants have not adequately demonstrated the existence of substantial grounds for believing that their return to Armenia at present would expose them to a foreseeable, real and personal risk of torture, as required under article 3 of the Convention. Moreover, their claims do not establish that the assessment of their asylum applications by the Swedish authorities would have been arbitrary or amounted to a denial of justice or manifest procedural errors.

8.9The Committee is of the opinion that the complainants have therefore failed to establish the existence of a foreseeable, personal, present and real risk of torture by the authorities of Armenia, including the police, upon return to their country of origin.

8.10Accordingly, the Committee, acting under article 22 (7) of the Convention, concludes that the return of the complainants to Armenia would not constitute a violation of article 3 of the Convention.