The Europe Court of Human Rights

The applicant does not have a valid passport, how would the deportation order be enforced in practice? In particular, how would the Swedish Government ensure that the applicant would be accepted into Uzbekistan without being exposed to a real risk of ill-treatment contrary to Article 3 of the Convention?

THIRD SECTION

Application no. 17865/09
by V.G. against Sweden
lodged on 2 April 2009

STATEMENT OF FACTS

THE FACTS

The applicant is an Uzbek national who was born in 1980 and is currently in Sweden . He is represented before the Court by Ms M. Ivicz, a lawyer practising in Stockholm .

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

The applicant arrived in Sweden in February 2006 and applied for asylum and a residence permit. Before the Migration Board (Migrationsverket) he claimed that he was from Uzbekistan and that, if he were to return, he would risk being punished on suspicion of being involved in opposition activities. He stated that he had never been politically active but that, in March 2003, he had been arbitrarily arrested and ill-treated by the police. As soon as they had discovered that they had arrested the wrong person, he had been released. Since February 2005, he had written articles in a friend’s name on an open Internet home page where all young people and independent journalists could write. At some point during the winter of 2005, his friend had disappeared. The applicant further alleged that the police had visited him twice, in December 2005 and January 2006, and had warned him against writing on the Internet. On 29 January 2006 he had been arrested and during a search of his home the police had found bullets. The applicant claimed that the police had placed them in his apartment. During interrogation, he had admitted to using the Internet but had denied writing articles critical of the regime and that the bullets were his. He had been released after three days without any official charges being pressed against him. However, he submitted what he claimed was a decision in Russian, dated 14 March 2006, from the Prosecutor’s Office of Uzbekistan.

On 31 October 2006 the Migration Board rejected the application. It first noted that the applicant had not proven his identity but that it was probable that he was an Uzbek national. It then acknowledged that the situation for human rights in Uzbekistan was lacking in many respects but considered that it was not so serious that he could be granted asylum on this ground alone. As concerned the applicant’s personal grounds for protection, the Board observed that the decision in Russian invoked by the applicant had very low evidentiary value since it did not appear to have anything to do with the Prosecutor’s Office as it was written on a form from the Ministry of Transport. It noted that the applicant had not been able to explain this fact. Moreover, the Board considered that it was highly unlikely that the applicant would have been released after only three days in detention if he had been suspected of being active within the opposition. It also had regard to the fact that he had remained in the country after his arrest in 2003. Thus, in conclusion, the Board found that the applicant was not a refugee or otherwise in need of protection in Sweden .

The applicant appealed to the Migration Court (Migrationsdomstolen), maintaining his claims and adding that, although he had not been politically active in a party, he had still expressed his political opinion to such a degree that he would risk persecution if returned. Moreover, as concerned the invoked document, it was from the Transport Police and showed that he was sought. He had obtained it from his neighbour, who is a prosecutor, and he could not be blamed for the fact that the Migration Board had misunderstood its content. He further alleged that both his parents had lost their jobs after he had left the country because of his activities for the opposition. In his view, the general human rights situation in Uzbekistan was extremely poor and should be enough for him to be granted leave to remain in Sweden .

On 26 March 2007, after having held an oral hearing, the Migration Court rejected the appeal. It first noted that, according to international sources, the human rights situation in Uzbekistan was very poor and presidential power was very strong, suppressing the opposition. However, the court considered that the general situation in the country was not sufficient to grant the applicant leave to remain. Hence, turning to the applicant’s personal grounds, it first found that he had given rather vague and brief information and that he had not submitted any of the articles which he claimed to have written. The one document which he had submitted had been handed in only after he had been in Sweden for six months. According to a formal translation, the document had been issued by the Ministry of Internal Affairs, Department of Transport, and it stated that the applicant was accused of calling for the overthrow of the Uzbek Government and that there had been a search of the applicant’s home, at which time some Kalashnikov bullets had been found, as had leaflets and CDs whose contents were hostile to the government. The court noted that the document’s content did not correspond to what the applicant himself had originally claimed and that it did not state the applicant’s full name or exact date of birth, only the year. Moreover, the court questioned whether the authority which had allegedly issued the document was at all competent to issue formal charges. Therefore, and having regard to the widespread use of fake documents in the former Soviet Union , it concluded that the document had no real value as evidence. It further noted that the applicant, despite having been in Sweden for more than one year, had not managed to obtain or submit any document to prove his identity, for which reason there were grounds to believe that he had withheld certain information. Having regard to all the circumstances of the case, the court found that the applicant had failed to show that he was in need of protection in Sweden .

Upon further appeal, the Migration Court of Appeal (Migrations-överdomstolen) refused leave to appeal on 17 September 2007. As this decision was final, the deportation order gained legal force.

The applicant then requested a new evaluation of his case but this request was rejected by the Migration Board on 6 December 2007 as it found that there were no impediments to the enforcement of the applicant’s deportation order.

The applicant appealed to the Migration Court, adding to his previous claims that he and his father were specialists in the field of thermal energy. In 2005 there had been an unauthorised search of his parent’s house in order to demand money from him and his parents. In his room, they had found flyers and some CDs which contained material critical of the regime. He had had no idea about the existence of this material but had been advised by friends to leave the country. After he had read about the ERK Democratic Party on Internet, he had joined it in 2007 and had participated in peaceful demonstrations and meetings. He further submitted copies of some articles he had written on the Internet and a certificate from the ERK Democratic Party.

On 4 March 2008 the Migration Court rejected the appeal. It found that the applicant’s membership of the ERK Democratic Party was a new circumstance in the case, as were his claims about the search of his parent’s house. However, it shared the Migration Board’s conclusion that this did not show that there was an impediment to the enforcement of the deportation order.

The applicant was apprehended by the Swedish police on 11 February 2009 when shop-lifting. He was placed in detention from where he requested the Migration Board to reassess his case and to stop his deportation.

On 31 March 2009 the Migration Board decided not to stop the enforcement of the deportation order and, on 1 April 2009, it refused to reconsider his case as he had failed to invoke any new circumstances of importance. It also found that there were no impediments to the enforcement of the deportation order.

On 2 April 2009 the applicant appealed against the decision to the Migration Court and submitted some printouts in Russian from two different Internet pages of articles he claimed to have written as well as an “Open Letter” to the European Council, the US Administration, the International Cotton Advisory Committee, UNICEF and the ILO, dated 17 January 2007, from the Civil Society of Activists of Uzbekistan. The letter calls for a boycott of Uzbek cotton and requests that measures be taken against forced child labour in this sector in Uzbekistan . It further claims that child labour is widespread and that the Uzbek Government is lying about the reality of child labour as well as about several other issues related to the cotton industry. The letter also calls for the Uzbek Government to sign some ILO conventions, to abolish child labour and to release farmers from the dictate of the State. It is signed by 98 Uzbek nationals, one of whom is the applicant, and it states that he is a member of the ERK Democratic Party. Furthermore, he invoked a letter in Russian which was undated but addressed to the Swedish Migration Board from three persons: a member of the central committee of the ERK Democratic Party, an independent human rights activist, and a human rights activist and journalist. These persons stated that they were members of the Uzbek opposition and they requested the Migration Board to consider the applicant’s case and to follow the UN Convention about non-refoulement as they were aware that the applicant had participated in political actions against the Uzbek dictatorship.

The applicant’s case is currently pending before the Migration Court .

COMPLAINT

The applicant complains under Article 3 of the Convention that, if he were to be deported from Sweden to Uzbekistan , he would risk being killed or arrested and ill-treated due to his political activities in an opposition party and for having published articles critical of the Uzbek regime on the Internet.

QUESTIONS TO THE PARTIES

1. In the light of the applicant’s claims and the documents which have been submitted, would he face a risk of being subjected to treatment in breach of Article 3 of the Convention if the deportation order were enforced?

2. Having regard to the fact that the applicant does not have a valid passport, how would the deportation order be enforced in practice? In particular, how would the Swedish Government ensure that the applicant would be accepted into Uzbekistan without being exposed to a real risk of ill-treatment contrary to Article 3 of the Convention?