In the case of A.A. and Others v. Sweden,
The European Court of Human Rights (Fifth Section), sitting as
a Chamber composed of:
Dean Spielmann, President,
Elisabet Fura,
Karel Jungwiert,
Mark Villiger,
Ann Power-Forde,
Ganna Yudkivska,
André Potocki, judges,
and Claudia Westerdiek, Section Registrar,
Having deliberated in private on 15 May 2012,
Delivers the following judgment, which was adopted on that
date:
PROCEDURE
The case originated in an application (no.
14499/09) 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 six Yemeni nationals, A.A. and her five children (“the
applicants”) on 17 March 2009.
The applicants were represented by Mrs E.
Rimsten, a lawyer working for the Red Cross in Stockholm. The Swedish Government
(“the Government”) were represented by their Agent, Ms C. Hellner, of the
Ministry for Foreign Affairs.
The applicants complained that, if deported from Sweden
to Yemen, they faced a real risk of being the victims of honour-related crimes
in violation of Articles 2 and 3 of the Convention.
On 24 March 2009 the Chamber to which the case
had been allocated 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 applicants until further notice.
On 11 May 2009 the President of the Chamber
decided to give notice of the application to the Government. It was also
decided to rule on the admissibility and merits of the application at the same
time (Article 29 § 1).
On 1 February 2011 the Court changed the
composition of its Sections (Rule 25 § 1 of the Rules of Court) and the above
application was assigned to the newly composed Fifth Section.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
The first applicant is born in 1966, the second
applicant is her oldest daughter, born in 1988, the third and fourth applicants
are her sons, born in 1989 and 1990, and the fifth and sixth applicants are her
youngest daughters, born in 1993 and 1999. They are currently in Sweden.
On 14 February 2006 the first and fifth
applicants arrived in Sweden and, two days later, they applied for asylum and
residence permits. The second, third, fourth and sixth applicants arrived in Sweden
on 17 August 2006 and applied for asylum and residence permits on the same day.
The Migration Board (Migrationsverket) held three interviews with the
first applicant and two interviews with the fifth applicant. The applicants’
legal representative was present at the third interview with the first
applicant and at the second interview with the fifth applicant. The legal
representative also submitted written submissions to the Board concerning all
of the applicants.
During the three interviews held by the Migration
Board on 16 February, 6 March and 5 October 2006, the first applicant essentially
told the Board the following. She was from Sana’a in Yemen where she had lived
with her husband, X, and their five children. She and X came from the same clan
and he worked in industry. In her view, they had been poor. Her mother, one
brother and two sisters lived in Yemen and another brother lived in London.
Her father was deceased. She had travelled with the fifth applicant to Sweden,
via Paris, using their passports and with French visas. She had thrown the
passports away upon arrival in Sweden for fear of being sent back. They had
paid about 2,000 US dollars (USD) for their tickets and about USD 1,000 for the
visas. She had paid for this by selling gold that she owned. A friend of hers
had helped to obtain the visas from the French Embassy in Sana’a in January
2006. Her brother had obtained their passports without X’s knowledge. The
second, third, fourth and sixth applicants had travelled to Sweden
illegally with the help of smugglers.
The first applicant claimed that her biggest
problem was X who had abused her for many years. They had married when she was
14 years old and he had been very strict and had hit her, burnt her and
threatened her with a knife. She had back problems caused by the violence and
had received an injection at a hospital in Sana’a a few months before leaving
the country to alleviate the back pain caused by a slipped disc. She had tried
to obtain a divorce but the judge at the court had told her that she should
solve her private problems with her husband. She had not contacted a lawyer as
she had no money and she had not reported the violence to the police because
they did not interfere in family matters.
However, the first applicant alleged that the
main reason for leaving Yemen had been to protect her daughters. The second
applicant had been forced to marry an older man when she was 14 years old and
forced to leave school because of it. X had also planned to marry off the fifth
applicant to a much older man when she was only thirteen years old. The first
applicant had petitioned the courts to stop the marriage but the courts had
decided that X, as the head of the family, was entitled to make that decision.
She claimed that women had no freedom in Yemen and that X would kill her if she
were returned since she had dishonoured him by leaving the country with their
daughter and without his permission. No one would be able to protect her and
her daughter.
The fifth applicant supported her mother’s
claims, stating that X had wanted to marry her off to an older man against her
will. The court case to stop the marriage had taken about six months and the
outcome had favoured X for which reason she and the first applicant had left
the country. Her uncle had helped them to obtain travel documents so they could
leave the country legally. She also stated that X had worked at a ministry and
that he had been very strict with her and her mother.
The second applicant also supported her mother’s
claims and submitted that X had married her off, at the age of 14, to a much
older man who had eight children and a disabled first wife. He had treated the
second applicant like a servant but had agreed to divorce her if he was
reimbursed the USD 4,000 that he had paid as a dowry for her to X. After her
mother and sister had left the country, the second applicant alleged that X had
made her other siblings leave the house but that they had been able to stay
with a friend of hers until they could travel to Sweden. She submitted that, if
they were to return to Yemen, they would all risk being killed since they had
dishonoured X. She also risked being killed by her husband since she had left
him without his permission.
In a later submission, the second applicant
added that X would never allow her to return home even if she did obtain a
divorce from her husband. Moreover, when X had made her siblings leave their
home, she had exceptionally been allowed by her husband to house them.
On 9 May 2007 the Migration Board rejected the
applications. It first noted that the applicants had not submitted their
passports or any other documents to prove their identity or to support their
story. It then observed that Yemen is a tribal society dominated by a
patriarchal social order where women are subject to discriminating treatment
and where they have to obey their husbands. Turning to the applicants’ personal
situation, the Board first pointed out that the first applicant’s brother had
failed according to the “honour rules” by helping her to obtain a passport. Moreover,
it considered that the mere fact that the first applicant had left the country,
and by doing so allegedly dishonoured her husband, was not sufficient to create
a need for protection in Sweden. In this respect, the Board observed that the
first applicant’s clan could protect her against X. Concerning the fifth
applicant, the Board considered that X’s actions had been motivated by
financial gain and that, by paying the necessary sum to X, the fifth applicant
could solve any problems that might arise. Here, it noted that the applicants’
contention that they were poor was contradicted by the fact that they had been
able to afford to travel to Sweden since the cost of the journey would have
been a fortune to a poor person. Turning to the second applicant, the Board
observed that her husband had consented to divorce her if she reimbursed him
the sum he had originally paid X. Again, the Board considered that the problem
was mainly a financial matter which could be solved by paying the required
amount. In regard to the remaining applicants, the Board found that they would
be able to stay with their maternal grandparents or other relatives in the
clan.
Thus, the Board concluded that the family’s
problems were related to financial matters rather than to honour and,
consequently, they could not be considered refugees or otherwise in need of
protection in Sweden. Since the situation in Yemen was not such as to call for
an automatic grant of residence permits, the applicants’ requests were rejected.
In reaching this conclusion, the Board had regard to the fact that some of the
applicants were minors.
The applicants appealed against the decision to
the Migration Court (Migrationsdomstolen), maintaining their claims and
adding that they had disgraced the head of their family as well as the clan by
fleeing. Since they were members of the same clan as X and, since the clan
always took the side of the man, it would not protect them. On the contrary, the
clan, which was very large and powerful, had blacklisted them and they were
convinced that the clan would kill them to save its honour. Moreover, the first
applicant’s brother had helped them in secret and had risked his own life by
doing so. He would not be able to help them again. According to the applicants,
there was no one in Yemen who would be able to protect them. Furthermore, the
applicants insisted that their need for protection was honour-related and not
economic in nature. The second and fifth applicants did not have the money
necessary to buy their freedom and, in any event, nothing would hinder X from
marrying them off to someone else later on. The first applicant added that she
had been a member of a women’s association which had met on Thursdays and
Fridays and that she had told the women in the association about her problems
and they had lent her some money to pay for travel. The remainder of the cost,
she had paid by selling her jewellery. As concerned the other applicants, the
second applicant had helped to pay for that trip.
In support of their claims, the applicants
submitted an e-mail, dated 26 December 2007, and sent by a programme officer
for “Sisters of Arab Forum for Human Rights”. It stated that, if the applicants
were sent back to Yemen, their lives would be in danger since the first and
fifth applicants had disgraced their husband/father when they had run away
instead of accepting his decision that the fifth applicant marry the man X had
chosen for her. It further stated that honour crimes were common in Yemen
and that Yemeni law encouraged it; for example, a man who killed his wife
because of infidelity would only be sentenced to six months’ imprisonment.
They also submitted a copy of a police report,
dated 19 January 2008, from which it appeared that X had reported to the Yemeni
Ministry of the Interior that the third and fourth applicants had stolen
1,500,000 Yemeni rial (approximately EUR 5,300) from him. He stated in the
report that he had hidden the money in his wardrobe about two months previously
and had discovered that it had gone two days before. He had asked his wife
about it but she had not known anything and thus he suspected that his two sons
had stolen the money since they had been out a lot lately. The sons had now run
away from home and he wanted them arrested. It appeared from the report that a
regional arrest warrant had been issued for the third and fourth applicants.
The applicants claimed that this was a method for X to get the authorities’
help to locate the family in order for him to have his revenge. They had
received the report from the first applicant’s brother, who had heard about it
and requested a copy from the Ministry of the Interior. He had received a copy
since he was the boys’ uncle.
Lastly, the applicants submitted the children’s birth
certificates in original which their uncle had also acquired and sent to them.
On 19 August 2008 the Migration Court rejected
the applicants’ appeal. The court first observed that the general situation for
women in Yemen was not a sufficient ground for them to be granted refugee
status. An individual assessment had to be made in each case. It then observed
that the reasons referred to by the applicants in support of their need for
protection mainly concerned problems within the personal sphere caused, inter
alia, by the country’s traditions. The court further noted that, other than
the first applicant’s petition to a court to stop the fifth applicant’s
marriage, the applicants had not turned to the Yemeni authorities to obtain
protection against X or the second applicant’s husband. The court reiterated
that, before international protection could be considered for problems of
violence and reprisals within the family, all avenues of mediation and
protection by the national authorities should have been tried. With regard to X’s
police report against the third and fourth applicants, the court considered
that it would be no problem for them to prove that they were innocent since
they were in Sweden at the time of the alleged crime. Therefore, they did not
risk being arrested or imprisoned. The court concluded that the applicants could
not be considered refugees, that they were not in need of protection and that
there were no exceptional circumstances to grant them leave to remain in Sweden, even though some of them were still minors. In reaching this conclusion, the court
also had regard to the fact that the family was united, that several of them
were adults and that they had family and friends in Yemen who supported them.
On 22 October 2008, with one of the judges being
of a dissenting opinion, the majority of the Migration Court of Appeal (Migrationsöverdomstolen)
refused leave to appeal. This decision was final and the deportation order thus
became enforceable.
However, in January 2009, the applicants lodged
an application with the Migration Board to stay the enforcement of the
deportation order and to reconsider their case due to new circumstances. They
maintained their previous claims and submitted a copy of a document in Arabic
that they claimed was a copy of a summons, dated 22 December 2008, and which
had been issued by a Yemeni court. According to the applicants, it stated that
the first applicant had taken her and X’s five children and had moved to Sweden, following a dispute between her and X regarding whether or not the fifth applicant
should be married to an older man. According to the document, X requested the
court to order the return of the applicants to Yemen so that the children would
be with their father and to imprison the first applicant because she had
disobeyed her husband and to stop her from leaving Yemen again. Moreover, X
requested the court to decide that the fifth applicant should marry the man
that he had chosen. The applicants contended that this, together with the other
information in the case, showed clear discrimination against women and that
there could be no doubt that, should they be returned to Yemen,
they would be subjected to persecution because they had dishonoured the head of
the family.
On 20 January 2009 the Migration Board rejected
the new application and decided that the measures to enforce the deportation
order should continue. The Board found that the grounds invoked by the
applicants had already been examined earlier in all essential parts and that no
new circumstances had been presented which could lead to a stay of the
enforcement of the deportation order. Furthermore, it considered that the
applicants had invoked no other new circumstances which could lead to granting
them residence permits in Sweden.
The applicants appealed against the decision to
the Migration Court, insisting that the evidence showed that inhuman treatment
awaited them if they were returned to Yemen. However, on 13 February 2009, the
court upheld the Board’s decision and reasoning in full and rejected the
appeal.
Upon further appeal, the Migration Court of
Appeal, on 5 March 2009, refused leave to appeal
On 24 March 2009, upon request by the applicants,
the Court applied Rule 39 of the Rules of Court until further notice. On the
same day and on the basis of the Court’s request, the Migration Board stayed
the enforcement of the deportation order until further notice.
II. RELEVANT DOMESTIC LAW AND PRACTICE
A. The Aliens Act
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 Aliens Act (Utlänningslagen,
2005:716 – hereafter referred to as “the Aliens Act”), as amended on 1 January
2010. The following refers to the Aliens Act in force at the relevant time.
Chapter 5, Section 1, of the Aliens 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 Aliens 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 Aliens
Act).
Moreover, if a residence permit cannot be
granted on the above grounds, such a permit may be issued to an alien if, after
an overall assessment of his or her situation, there are such particularly
distressing circumstances (synnerligen
ömmande omständigheter) to allow him or her to remain in Sweden
(Chapter 5, section 6 of the Aliens 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 Aliens 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 Aliens 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 Aliens 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 Aliens 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 Aliens Act).
Under the Aliens 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 Aliens Act).
B. Instructions from the Head of the Legal Department
of the Migration Board
On 22 March 2011 the Head of the Legal
Department of the Migration Board issued an instruction concerning the
enforcement of deportation orders to Yemen. He noted that the already unstable
situation in Yemen had rapidly deteriorated due to protests against the regime
and that there was increased violence from various groups, including by
government forces. Having regard to the difficulties in evaluating the
situation in the country and how it would develop, the Head of the Legal
Department considered that no deportation orders to Yemen should be enforced
until further notice.
A second instruction was issued on 10 February
2012 by the Head of the Legal Department of the Migration Board in which he
considered the developments in Yemen since the issuance of the first
instruction. He first noted that the security situation in Yemen
was affected by a number of internal conflicts, such as conflicts between
clans, between the regime and various clan militias in the north and the south
of the country as well as the regime fighting Al-Qaida in the Arab Peninsula
(AQAP). These conflicts had been accentuated by the growing protests and
opposition against the regime by civil society, weakening the central
government and its control over the country. During the autumn of 2011, in
particular, there had been violent clashes in the bigger cities of Sana’a and
Taiz. Following the agreement brokered by the Gulf Cooperation Council and
sanctioned by the United Nations, where President Ali Abdullah Saleh agreed to
hand over power to Vice-President Abdel Rabbo Mansour Hadi, the situation in
Yemen continued to be marked by political unrest, an unstable security
situation and continued internal conflicts. However, the country-wide protests
had diminished in intensity and no longer paralysed the big cities of Sana’a
and Taiz. Thus, the general security situation in Sana’a and other big cities
had improved. In view of this, the Head of the Legal Department found that the
situation in the country was generally very serious but that the violence was
not so serious or indiscriminate as to give well-founded grounds to assume that
civilians, through their mere presence in the parts of the provinces where the
violence occurred, were at a real risk of being exposed to serious and personal
threats to life or limb.
In conclusion, the Head of the Legal Department
noted that Yemen was still marked by major political instability and
occasionally armed fighting between various entities in essentially all parts
of the country. The Government had little if any power in certain parts of the
country and the judicial system could currently not be considered to be capable
of impartially protecting the population’s basic rights. In these
circumstances, he considered that there were severe conflicts (svåra
motsättningar) within the meaning of the Aliens Act in all of Yemen.
It was important to point out that the severe conflicts, and consequently the
security situation, were more serious in some parts of the country than in
others and that this had to be taken into account in each individual case. He
further noted that vulnerable groups in Yemen, such as women and children,
should be given special attention when their need for protection was
considered. Through this instruction, the first instruction was repealed and
thereby the stay on deportation orders was also ended.
III. INFORMATION ABOUT YEMEN
A. General country information
The U.K. Foreign & Commonwealth Office’s
Travel Advice for Yemen, as updated on 5 March 2012,
sets out the following about the political situation in Yemen:
“Following the signing on 23 November 2011 of the Gulf
Cooperation Council’s Initiative by President Saleh, political transition in Yemen
is now underway. Much progress has since been achieved with the appointment of
a new prime minister, a National Unity Government comprising ministers from the
former ruling party and opposition, and approval by parliament of the
government’s programme. Interim presidential elections were held on 21 February
2012 and President Abd Rabbuh Mansour Hadi was inaugurated on 25 February as
Yemen’s new head of state. The second phase of transition has now begun,
leading to greater participation in the political process by all Yemenis,
constitutional reform and parliamentary elections. The situation remains
uncertain in Yemen, with some seeking to disrupt the new political process and
others dissatisfied with the pace of change. Yemen faces tough political,
humanitarian and economic challenges. Violent clashes continue across Yemen, particularly in Sana’a and Taiz. The long period of political impasse in 2011 has
resulted in the withdrawing of effective state control over parts of the
country, especially in the north in Sadah and the south in Abyan. Dialogue is
ongoing to achieve political transition and the situation remains extremely
tense.”
The volatile and tense situation in Yemen,
as set out above by the Head of the Legal Department of the Migration Board and
the U.K. Foreign & Commonwealth Office, is reflected and supported by other
international sources, such as the United Nations.
B. The situation of women and children
The United States Department of State “2010
Human Rights Report: Yemen”, of 8 April 2011, states among other things:
“Women
The law, rarely enforced, provides women with protection
against violence, but there were no laws specifically prohibiting domestic
violence, including spousal abuse. Although spousal abuse occurred, it
generally was undocumented. Violence against women and children was considered
a family affair and usually went unreported to police. Due to social norms and
customs, an abused woman was expected to take her complaint to a male relative
(rather than to authorities) to intercede on her behalf or provide sanctuary to
avoid publicizing the abuse and shaming the family ... The law criminalizes
rape, although spousal rape is not criminalized because a woman may not refuse
sexual relations with her husband ... The law does not address other types of
honour crimes, including beatings, forced isolation, imprisonment, and forced
early marriage. The law regarding violence against women states a convicted man
should be executed for killing a woman ... Social custom and local
interpretation of Shari’a discriminated significantly against women ... Men
were permitted to take as many as four wives. A husband may divorce a wife
without justifying the action in court. Under the formal court system, a woman
has the legal right to divorce, but she must provide a justification, and there
were practical, social, and financial considerations that impeded women from
obtaining a divorce. However, in some regions under tribal customary law, a
woman has the right to divorce without justification... Women also faced
discrimination in courts, where the testimony of one man equals that of two
women ... Governmental
mechanisms to enforce equal protection were weak or nonexistent. According to
the Ministry of Social Affairs and Labour (MSAL), there were more than 170 NGOs
working for women’s advancement. The Arab Sisters Forum for Human Rights worked
with other NGOs, the government, and donor countries to strengthen women’s
political participation. The Yemeni Women’s Union and Women’s National
Committee (WNC) conducted workshops on women’s rights. The Arab Sisters Forum,
with funding from the Netherlands and in cooperation with the MSAL, established
projects aimed at providing protection against violence for women and children.
Children
The law does not define or prohibit child abuse, and there was
no reliable data on its extent. Child marriage was a significant problem in the
country. There was no minimum age of marriage, and girls were married as young
as age eight. A February 2009 law setting the minimum age for marriage at age
17 was repealed. According to a 2009 MSAL study, a quarter of all girls were
married before they were 15 years old. The law has a provision that forbids sex
with underage brides until they are "suitable for sexual
intercourse," an age that is undefined. An Oxfam International study
calculated that among 1,495 couples, 52 percent of women and 7 percent of men
were married at an early age. The report also highlighted that 15-16 years was
generally considered the appropriate age of marriage for girls, depending on
region and socioeconomic status.”
The Amnesty International report “Yemen’s Dark
Side - Discrimination against Women and Girls”, of November 2009, and the Human
Rights Watch report “How Come You Allow Little Girls to Get Married? Child
Marriage in Yemen”, of December 2011, support the above‑mentioned
findings concerning women and children by the U.S. Department of State.
The Human Rights Watch report further states
that:
“The provisions in Yemen’s Personal Status Law on marriage and
divorce create particular hardships for women and girls. ... A man may divorce
his wife by pronouncing his repudiation three times. A woman may ask for
separation from her husband on certain conditions, for example if the husband
fails to provide financially for his family even though he is capable of doing
so; if he abandons his wife for more than one year with no compensation, or for
more than two years with compensation; if he is imprisoned for more than three
years; or if he marries more than one woman and is unable to provide
financially for his wives. The wife must provide proof of these allegations
before being granted a divorce. A wife who wishes to divorce her husband for
other reasons may file for khul’a, or no-fault divorce, under which she is
required to pay back her dowry and forego claims to maintenance. Given women’s
economic dependence on their husbands, this requirement makes it difficult for
women to seek and obtain a divorce.”
The Country of Origin Information Centre (Landinfo),
an independent human rights research body set up to provide the Norwegian
immigration authorities with relevant information has, in a note concerning
marriage in Yemen dated 20 July 2010, observed that, according to the Yemeni
Personal Status Law no. 20 of 1992, as amended in 1997 and 1999, there is no
requirement that a bride be physically present when she is married. It is
enough that her guardian agrees and shows his identity card or family book.
Moreover, it notes that the mother of the bride has no legal authority to
decide about her daughter’s marriage, since she is also under the authority of
her husband and has to follow his decisions. The note further states that every
year there are girls who flee their forced marriages and seek refuge with NGOs
and human rights activists. In this respect, it observes that NGOs run a few
shelters in Sana’a and one in Aden where these girls and other women in
vulnerable situations can receive protection, counselling and training in
various skills.
Landinfo has in another note focusing on Yemeni
women’s possibilities to support themselves, dated 20 March 2009, observed that
it is not acceptable for a Yemeni woman to live alone without a family network.
Although women, formally, have some civil and political rights, in reality,
they are hindered from using them due to poverty and religious and cultural
values. However, there are working women and they are to a certain extent
visible on the work market. Roughly 25% of all university students are women
and women are allowed to work within the health care and education system, as
well as in the agricultural sector, private business or for NGOs.
The Freedom House’s report “Women’s Rights in
the Middle East and North Africa 2010- Yemen”, of 3 March 2010, sets
out:
“Yemen is a tribal and traditional country where prevailing
cultural attitudes, patriarchal structures, and Islamic fundamentalism accord
women low status in the family and community and limit their participation in
society. ...
Women face additional difficulties obtaining justice because
police stations and courts -
which are always crowded with men - are commonly considered to be inappropriate places for
"respected women". Moreover, the lack of female judges, prosecutors,
and lawyers discourages women from turning to the courts. Given the social
discrimination experienced by women, they hesitate to approach male legal
consultants, particularly for issues such as abuse or rape. Instead, women
often rely on male relatives to go to court in their place, or turn to them to
solve their problem rather than taking the matter to the judiciary.
Domestic violence in cases related to honor is a concealed
phenomenon in Yemen. Normally such cases are handled discreetly within the
family and rarely reach police records. If the parties to the problem are not
relatives, it is often resolved amicably through tribal mechanisms. Cases of
honor-related homicide perpetrated against women are usually not reported, and
no health certificate is required for a burial, particularly in rural areas. As
a result, such deaths are often attributed to natural causes.”
There have been some recent changes as observed
by Human Rights Watch in its report of December 2011, cited above, pp. 8-9:
“Women played an important role in anti-Saleh protests, despite
beatings, harassment, and, in some cases, the condemnation of relatives.
President Saleh in April 2011 admonished women demonstrators, saying “divine
law does not allow” public intermingling of the sexes. Women responded with
further protests. In October 2011, Tawakkol Karman, a prominent woman
journalist and human rights activist who has played a pivotal role in the
protests, won the Nobel Peace Prize along with two women leaders from Liberia.
In recent years, Karman has defied conservatives in her political party Islah,
or the Islamists Congregation for Reform, by calling for a minimum age for
child marriage.”
The important role played by women in the
protests against the Yemeni Government during 2011 has also been highlighted by
other sources, such as Amnesty International
and the media.
Yemen is a State Party to a number of
international treaties and conventions that explicitly prohibit discrimination
against women and protects the rights of women and children, such as the
Convention on the Elimination of All Forms of Discrimination against Women, the
Convention on the Rights of the Child, the Convention on Consent to Marriage,
Minimum Age for Marriage and Registration of Marriage, the International
Covenant on Civil and Political Rights as well as the International Covenant on
Economic, Social and Cultural Rights.
C. Travel documents and travel
restrictions
The United States Department of State’s 2010
Report on Yemen, cited above, states:
“The law provides for freedom of movement within the country,
foreign travel, emigration, and repatriation, and the government generally
respected these rights with some restrictions. The government limited the
movement of women, foreign tourists, and other foreigners ... According to the
law, government officials required women to have the permission of a male
relative before applying for a passport or leaving the country. A women’s
rights NGO asserted that a husband or a male relative could bar a woman from
leaving the country and that authorities strictly enforced this requirement
when women travelled with children. During the year authorities reportedly
turned back several women at the airport because they did not have the
permission of a male relative.”
Landinfo
has in a thematic note of 2 November 2010 concerning Yemeni travel
and identity documents concluded that the notoriety of Yemeni documents was
low, partly as a result of a weak central government, widespread corruption and
incomplete registration procedures and archives. Thus, it was reported that it
was easy to obtain forged documents through bribery or personal connections.
The note further stated that passports were
issued and renewed by the Ministry of the Interior. In order to get a passport,
the applicant would have to present a valid identity card or family book as
well as two photographs and leave his or her fingerprints. For a woman to
obtain a passport, she had to have the permission of her husband or, if she was
unmarried, that of her father or other male relative. Children were normally
registered in their parents’ passport until the age of 16. However, if
necessary, a child could get a passport if the child’s birth certificate and
the father’s passport were submitted to the issuing authority. As concerned
leaving the country, the note observed that there was different information
available. According to the U.S. Department of State, a woman needed permission
from her husband, or father if unmarried, to leave the country. However, the
Women’s National Committee (a Yemeni government-affiliated body
working to empower women) and a Yemeni lawyer had informed Landinfo
that, once a married woman had obtained a passport, she did not need formal
permission from her husband to leave the country.
THE LAW
I. ALLEGED VIOLATION OF ARTICLES 2 AND 3 OF THE
CONVENTION
The applicants complained that the enforcement
of the deportation order to Yemen would be in violation of Articles 2 and 3 of
the Convention which, in relevant parts, read:
Article 2
“1. Everyone’s right to life shall be protected by
law. ...”
Article 3
“No one shall be
subjected to torture or to inhuman or degrading treatment or punishment.”
The Court finds that the issues raised in the present
case under Articles 2 and 3 of the Convention are indissociable and will
therefore examine them together (see, among others, D. v. the United Kingdom,
2 May 1997, § 59, Reports of Judgments and Decisions 1997‑III,
and F.H. v. Sweden, no. 32621/06, § 72, 20 January 2009).
A. Admissibility
53. The
Court notes that the complaint is not manifestly ill-founded within the meaning
of Article 35 § 3 (a) of the Convention. It further notes that it is not
inadmissible on any other grounds. It must therefore be declared admissible.
B. The parties’ submissions
1. The applicants
The applicants maintained that the general situation for
women in Yemen was serious and that the Yemeni authorities could not provide
women with adequate protection from honour-related persecution.
Regarding the credibility issues put forward by
the Government, the applicants contended that neither the Migration Board, nor
the Migration Court had questioned the applicants’ credibility.
The applicants submitted that, as the Swedish
Embassy in Riyadh had not checked the authenticity of the submitted police
report and the court summons, the Government could not state that the documents
had no value as proof of what would happen to the family on arrival in Yemen.
Concerning the arranged marriage for the fifth
applicant, they asserted that X had never told either the first applicant or
the fifth applicant whom he intended to name as the fifth applicant’s husband
and that X had behaved in exactly the same way when he had arranged the
marriage for the second applicant. The applicants added that they had received a
decision from the domestic court in the court case concerning the marriage of
the fifth applicant but had left it in the house in Yemen.
Regarding the applicants’ travel to Sweden, they asserted that the first applicant’s brother had told the staff at the airport
that the first applicant and her daughter were going to meet the first
applicant’s husband on arrival at their destination. Thus they had been able to
leave the airport without male company. Regarding the financing of the journey
to Sweden, the applicants claimed that X had decided where money should be
spent and from that perspective the first applicant had been poor. However,
when she had learned that the fifth applicant risked being married off, she had
done her utmost to raise the money for the journey, like any mother would have
done.
The second applicant asserted that she had been abused
and maltreated by her husband during their marriage. Furthermore, she had left
the country without her husband’s permission. To pay back the dowry would not
help her since she had committed a crime according to the culture of honour.
Also, she insisted that she had no possibility to return to X, since he would
immediately arrange a new marriage for her.
As concerned the question of whether the
applicants could receive protection from the domestic authorities, they submitted
that the Yemeni law did not provide protection against domestic violence since
it was considered a family affair. Neither would it be possible for them to
turn to the clan for protection from X’s abuse. The first applicant had turned
to the clan for help regarding X’s plans to marry off the fifth applicant but
the clan had advised her to turn to the courts.
They further asserted that the third and fourth
applicants (the male applicants) would not be able to protect the other
applicants or give them the necessary support to travel or resettle elsewhere
in Yemen. The third and fourth applicants were in danger as well, since they
had also acted against the culture of honour by following their sisters and
mother to Sweden. Moreover, they claimed that the first applicant’s brother was
constantly in hiding, moving around in Yemen and, thus, they could not rely on
his protection.
2. The Government
From the outset, the Government pointed out that
even though the country information supported the view that the human rights
situation for women and girls in Yemen was of great concern it did not, in
itself, suffice to establish that a return of the applicants would entail a
breach of Article 3 of the Convention.
The Government did not question that, generally
speaking, the actions of some of the applicants were of such character that
they might give rise to honour-related crimes. However, they considered that
there were shortcomings and inconsistencies in the applicants’ statements in
essential parts which gave reason to question their general credibility. In the
Government’s view, the applicants’ accounts before the domestic authorities had
been strikingly brief and lacking in detail in all aspects.
Upon request by the Government, the Swedish
Embassy in Riyadh, which covers Yemen, had sent a report relating to the
authenticity of some of the documents submitted in the domestic proceedings by
the applicants. The Government referred to the findings in the report and
stated the following. Regarding the alleged court case initiated against X to
prevent the marriage of the fifth applicant, the Embassy had not been able to
verify this claim as the applicants had not presented any details of the case,
such as the date when the case had been initiated, the name of the relevant
court or the case number. In the Government’s view, the lack of details given
by the applicants about this court case gave reason to question its veracity.
They also stated that if the applicants, as they claimed before the Court, had
received a decision from the Yemeni court, it could have been expected that the
applicants present the decision or at least provide a satisfactory explanation
for their failure to do so.
Turning to the alleged court summons issued by a
Yemeni court, the Government submitted that the Embassy in Riyadh had noted in
its report that the document was rather a record concerning an action filed
with the court by X and an interview held with him. The Government suggested
that there was reason to question the authenticity of the document as the
applicants had not presented any information about how they had obtained the
document and since the document had been presented at a late stage in the
proceedings. Furthermore, the document was dated 22 December 2008, which meant
that the alleged court action by X had been filed about two years and ten
months after the first and fifth applicants had left Yemen. The Government
stated that the applicants had not offered an explanation as to why X would
wait that long before going to court if he had really been offended and upset
about their departure. Moreover, regarding the submitted police report, the
Government stated that there was reason to question its authenticity.
They also questioned how the first applicant’s
brother had managed to arrange for passports for the first and fifth applicants
since country information and the report from the Embassy in Riyadh supported
that both the first and fifth applicants would have needed permission from X to
obtain passports. The report also noted that the applicants should be able to
obtain copies of the passports from the Yemeni authorities. The Government
further observed that the applicants had not explained how they had managed to
leave Yemen without being accompanied by a male relative.
Furthermore, the Government stated that the
applicants had not substantiated that the fifth and sixth applicants were at
real risk of being married upon return. The applicants had not provided any
details concerning the man that they claimed X had chosen as the fifth
applicant’s future husband. Nor were there any details about the alleged
marriage agreement. As concerned the sixth applicant there was, according to
the Government, no indication that X had even considered arranging for her to
be married. Should the Court find that the fifth and sixth applicants would be
forced to marry upon return it had not, in the Government’s view, been
sufficiently established that they would face a real and personal risk of being
subjected to treatment contrary to Article 3 of the Convention.
The Government submitted that the fact that the
second applicant’s husband had agreed to divorce her indicated that he had
nothing in particular against her leaving him or the country. Thus, there was
no reason to believe that she would run a real risk of being ill-treated or
killed by him for reasons of honour. Concerning the information given before
the Court, that the second applicant had been abused and maltreated by her
husband, the Government considered that there was reason to question this information
in view of the fact that it was new to the case and that the applicants had not
provided any further details concerning the claim, nor explained why it was
submitted at such a late stage.
Should the Court find that the applicants had
shown that there was a real risk of honour-related crimes or spousal abuse
against the applicants upon return, the Government noted that it was evident
from various human rights reports that the applicants would have limited
possibilities to receive protection from the authorities but also from the
clan, in view of Yemen’s patriarchal society and the fact that the first
applicant and X belonged to the same clan. Also, referring to the report by the
Swedish Embassy in Riyadh, the Yemeni authorities did not offer protection to
children who ran the risk of being forced into marriage or killed as a result
of honour-related conflicts.
As concerned the applicants’ possibilities of
using an internal flight alternative, they claimed that the female applicants
would be accompanied by their male relatives, the third and fourth applicants,
which would be sufficient to make it possible for the applicants to resettle
within Yemen. As to the issue of social network, the Government noted that the
applicants would at least have the support of the first applicant’s brother in Yemen.
The first applicant had, according to the Government, shown considerable
strength and independence by going to court several times to file for divorce
and managing to obtain the necessary practical and financial means to leave her
husband. In the light of the above-mentioned circumstances the Government held
that there was an internal flight alternative available to the applicants.
C. The Court’s assessment
1. General principles
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, Vilvarajah and Others v. the United Kingdom, 30 October 1991, §
102 Series A no. 215, p. 34,). 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 of the Convention implies an obligation not to deport the
person in question to that country (see Saadi
v. Italy [GC], no. 37201/06, § 125, ECHR
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 (see 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 (see 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 (see H.L.R. v. France, 29 April 1997, § 40, Reports
1997-III).
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, inter alia,
N. v. Sweden, no. 23505/09,
§ 53, 20 July 2010 and Collins
and Akasiebie v. Sweden (dec.),
no. 23944/05, 8 March 2007). 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
of the Convention (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 applicants to Yemen, bearing in mind the general situation there and their
personal circumstances (see Vilvarajah
and Others, cited above, § 108).
2. The general situation in Yemen
According to the Court’s case-law, a general
situation of violence will not normally in itself entail a violation of Article
3 of the Convention in the event of an expulsion (see H.L.R., cited
above, § 41). Indeed, the Court has rarely found a violation of Article 3 on
that ground alone (see NA.,
cited above, § 114, with further references). Thus, although the
Court has never ruled out the possibility that a general situation of violence
in a country of destination could be of a sufficient level of intensity to entail
that any removal to it would necessarily breach Article 3 of the Convention, it
would adopt such an approach only in the most extreme cases of general violence,
where there was a real risk of ill-treatment simply by virtue of an individual
being exposed to such violence on return (see
NA., cited above, § 115).
As concerns the present case, the Court observes
that, as set out above in §§ 35-38, the general situation in Yemen remains
volatile and extremely tense despite some improvements since the political
transition started at the end of November 2011. There are several internal
conflicts going on between various groups in different parts of the country and
the new president and government face many challenges, including establishing
effective state control over all parts of the country. However, in the Court’s
view, this general situation of instability and violence in Yemen
is not of such intensity that it may be said that the applicants would be
exposed to a real risk of ill-treatment simply by being returned there. It must
therefore be determined whether their personal situation is such as to expose
them to a real and personal risk of treatment contrary to Article 3 of the
Convention if sent back to their home country.
3. The applicants’ case
The Court observes, from the outset, that there
is a dispute between the parties as to some facts of the case and that the
Government have questioned the applicants’ credibility and pointed to
inconsistencies in their stories. The Court acknowledges that it is often
difficult to establish, precisely, the pertinent facts in cases such as the
present one. It accepts that, as a general principle, the national authorities
are best placed to assess the credibility of the case since it is they who have
had an opportunity to see, hear and assess the demeanour of the individuals
concerned (see R.C. v. Sweden, no. 41827/07, § 52, 9 March 2010). In this respect, the Court notes that the Swedish
authorities did not question the applicants’ stories as such but found that the
submitted information was not sufficient to show that the applicants were in
need of protection in Sweden. It also observes that the applicants’ case was
thoroughly examined by both the Migration Board and the Migration Court, which
included several interviews before the Board. They further appealed against the
Migration Court’s judgment to the Migration Court of Appeal, which decided to
refuse leave to appeal. Before all instances the applicants were assisted by
female legal counsel. Furthermore, apart from the ordinary asylum proceedings,
which went through three instances, both the Migration Board and the Migration Court have examined the applicants’ application for subsequent review of the
enforcement order. There are no indications that the proceedings before the
domestic authorities lacked effective guarantees to protect the applicants
against arbitrary refoulement or were otherwise flawed. Against this
background, the Court will continue by examining whether the information
presented before this Court would lead it to depart from the domestic
authorities’ conclusions.
The Court first notes the applicants’ claim that
the clan would pose a risk to them. However, they have not said that they have
ever received any threats from anyone in the clan and, moreover, when the first
applicant turned to the clan for help regarding the fifth applicant’s marriage,
the clan advised her to go to court. Thus, the clan did not take the side of X
or encourage the first applicant to accept the marriage plans. Consequently,
the Court finds that the applicants have not substantiated in any way that the
clan would pose a threat to them or that it should have “blacklisted” them.
As concerns the third and fourth applicants, the
sons, they have asserted that they would risk honour-related persecution by X
because they have disgraced him by leaving the country together with the rest
of the family. The Court first observes that nothing happened to either the
third or the fourth applicants while they were living in Yemen,
including after X had made them leave their home following the first and fifth
applicants’ departure. Moreover, in relation to the police report, in which X
allegedly reported that the third and fourth applicants had stolen money from
him, the Migration Court found that it would be no problem for them to prove
that they were innocent as they were in Sweden at the time when the alleged
crime took place. The Court finds no reason to depart from that evaluation and
considers that the police report, if authentic, does not show that they would
risk treatment in violation of Article 3 of the Convention upon return. In this
respect, the Court also notes that the report, which is dated 19 January
2008, was submitted to the Migration Court following the Migration Board’s
initial rejection and about one and a half years after the sons’ departure from
Yemen.
Since the third and fourth applicants are now
adult men, they are free to find jobs and settle where they wish within the
country. Consequently, the Court finds that the third and fourth applicants
have not substantiated that they would face a real and personal risk of
reprisals which would reach the threshold of Article 3 of the Convention if
returned to Yemen. Having this in mind, the Court will continue to examine the
claims put forward by the female applicants.
With regard to the first applicant, the Court
observes that the alleged marital abuse against the first applicant has not
been questioned on a domestic level and the Court finds no reason to make
another assessment. In support of her claim that she would risk being the
victim of an honour crime if returned, she invoked the alleged court record
dated 22 December 2008 according to which X had requested that the applicants
be returned home. The Court considers that there are reasons to question the
authenticity of the document since the applicants have not presented any
information about how they obtained it within a few weeks of its issuance.
Also, the document is dated two months after the final decision by the
Migration Court of Appeal and was invoked as a new ground before the Migration
Board in their request for reconsideration of their case, adding to their
claims. Moreover, as the Government have pointed out, the applicants have not
offered an explanation as to why X would wait until almost three years after
the first and fifth applicants’ departure from Yemen before reporting their
absence to the court if he was seriously offended by their departure.
Furthermore, since X allegedly made the remaining children leave their home
when the first and fifth applicants left Yemen, this would suggest that he had
no interest in maintaining a relationship with his family members and, even
less, that he would physically harm them. For these reasons, the Court finds
that it has not been established that there is a real risk that X would subject
the first applicant, or any of his children, to any honour‑related crimes
if they were to be returned to Yemen.
Having regard to the country information
concerning travel and travel documents (see, §§ 48-50), the Court accepts that
the first and fifth applicants might have been able to leave the country with
the first applicant’s brother escorting them and telling the airport personnel
that they were travelling to meet X at the destination. However, the Court
doubts that the first applicant and, in particular, the fifth applicant could
have obtained their passports without the permission of X, noting the strict
requirement of the husband’s/father’s permission and supporting documents (such
as the father’s passport for a child). It notes that the first applicant said in
the interview with the Migration Board on 6 March 2006 that she would try to
obtain copies of the passports from the Yemeni authorities. This should be
possible according to information from the Swedish Embassy in Riyadh. Still,
although she has had several years to try to obtain copies of the passports,
she has not done so. Here the Court observes that she did manage to have the
children’s birth certificates in original sent from Yemen to Sweden,
as well as the alleged court record and police report.
The Court further agrees with the Government’s
view that the first applicant has shown proof of independence by going to court
in Yemen on several occasions to file for divorce from X and also shown strength
by managing to obtain the necessary practical and financial means to leave Yemen.
It also notes that the first applicant’s brother has continued to assist the
applicants by sending them various documents. Even if it is true that he is now
moving around in Yemen, the Court is of the opinion that the first applicant
has not shown that she cannot count on his protection in Yemen.
Moreover, if returned, the first applicant would be accompanied by her two
adult sons who could also support her and which would enable her to live away
from her husband. The Court also notes that her mother and two sisters live in Yemen,
adding to her social support network, and that she has one more brother who
lives in London and might provide additional support. Here, the Court further
observes that, according to international sources (see, §§ 39 and 42), there
are NGOs in Sana’a operating shelters and providing help for exposed women.
In so far as the e-mail from Sisters of Arab
Forum for Human Rights is concerned, the Court notes that the programme officer
writing the message did not have any personal knowledge of the applicants or
their specific family situation. Thus, her reply was general in nature,
reflecting information about the situation for women and children in Yemen
as set out above (see §§ 39-44). It cannot therefore be taken as proof of what
would happen to the applicants in the present case if returned to Yemen.
Having regard to the above, the Court finds that
it has not been substantiated that, if deported, the first applicant would face
a real and personal risk of being subjected to treatment contrary to Article 3
of the Convention.
Turning to the second applicant, the Court observes
that neither the domestic authorities nor the Government have questioned the
essentials of her story and the Court finds no reason to make a different
assessment in this regard. However, it observes that there is very little information
about the conditions under which the second applicant lived during her
marriage. This may to a certain extent be due to the fact that she was never
interviewed before the Migration Board. However, the Court notes that, even in
the written submissions before the domestic authorities, the second applicant
failed to give any details regarding the conditions under which she lived in Yemen.
Before the Court, the second applicant has
claimed that she was abused and maltreated by her husband during their
marriage. Since this information is new to the case and as the applicants have
not given a reasonable explanation as to why this information was not presented
earlier, the Court finds that this new information may to some extent be an
escalation of her story. However, having regard to the country information, the
Court does not rule out that the second applicant might have suffered abuse by
her husband.
The Court is aware that the second applicant,
who is now 23 years old, was married off against her will at a young age to an
older man who allegedly treated her as a servant. Due to the patriarchal
structures which exist in the country she felt that she had to obey her husband’s
and father’s will to stay in the relationship. While acknowledging the
vulnerable situation in which the second applicant, being a minor, must have
found herself while she lived in Yemen she has still not, as noted above,
presented any details about her specific living conditions or her daily life in
Yemen. Furthermore, she has not explained how she managed to leave Yemen
with three of her younger siblings when she was only 18 years old. Thus, it
remains unclear who paid and arranged for their trip and how they travelled to Sweden.
The Court further observes that there is nothing
in the case to suggest that the second applicant’s husband has tried to locate
her since her departure from Yemen or otherwise shown an interest in getting
her back. Moreover, the fact that he has apparently agreed to divorce her if
she pays back the dowry also indicates that he has a limited interest in her
and that she would be able to obtain a divorce if she paid the money demanded.
Here the Court reiterates that it is for the
applicant to adduce evidence capable of proving that there are substantial
grounds for believing that she would be exposed to a real risk of being
subjected to treatment contrary to Article 3 upon return (see § 73). Having
regard to the above findings, it is the Court’s view that such evidence has not
been presented regarding the second applicant. Also, if returned, the second
applicant would be accompanied by her two brothers, with whom she left Yemen
and, thus, she would have a male network and be able to live away from her
husband and father. She would also have the support of her mother and her
mother’s family. In these circumstances, it has not been shown that the second
applicant would face a real risk of reprisals from either her husband or X upon
return, and consequently it has not been substantiated that a deportation of
the second applicant would constitute a violation of Article 3 of the
Convention.
With regard to the fifth applicant, the Court
observes that neither the Migration Board nor the Migration Court have
questioned the alleged plans by X to forcibly marry off the fifth applicant to
an older man when she was thirteen years old. The Government questioned this
information but the applicants claimed that they were never informed by X whom
he intended to name as the fifth applicant’s husband and that he had behaved in
exactly the same way when he had arranged the second applicant’s marriage.
In view of the country information regarding Yemen,
the Court does not find any reason to question the applicants’ account in this
respect. However, the Court finds that it has not been established that X today
would still consider marrying off the fifth applicant, who has now turned
eighteen. Likewise, there is nothing to indicate that the man intended by X to
marry the fifth applicant is still waiting for her or would still be interested
in marrying her if she returned. Moreover, as has been stated above, the Court
finds reason to question the document of 22 December 2008 which allegedly
states that X had requested the court in Yemen to decide that the fifth
applicant should marry the man that he had chosen. In any event, the fifth
applicant is now adult and any risk of being ill-treated if forced to marry
upon return is hypothetical and unsubstantiated since, in the Court’s view,
there is too little information and documentation available in the case for
such a conclusion.
As to the sixth applicant, the Court notes that
she is still a minor and thus at a hypothetical risk of being forced to marry
at a young age if returned to Yemen. However, this claim has not been made by
the applicants before the domestic authorities. In any event, they have not
invoked any substantial grounds to show that this would be the case. Thus, for
example, there is nothing to suggest that X might already have chosen a husband
for the sixth applicant or even planned for her to wed. Here, the Court
reiterates that Article 3 of the Convention sets a high threshold particularly
where the case, like the present one, does not concern the direct
responsibility of the Contracting State for the infliction of harm (see Bensaid,
cited above, § 40).
Moreover, as has been stated regarding the other
female applicants, both the fifth and sixth applicants would be accompanied by
their two brothers, who also travelled with the sixth applicant from Yemen
to Sweden and, thus, they would have a male network as well as their mother and
older sister. For the above reasons, it has not been shown that the fifth and
sixth applicants would have to go back to X and thus face a real risk of
reprisals by him upon return. Therefore it has not been substantiated that a
deportation of the fifth and sixth applicants to Yemen would constitute a
violation of Article 3 of the Convention.
Returning as a family unit, the Court finds that
the applicants will have support from each other. Moreover, noting the
substantial support that the first applicant’s brother has given the applicants
both before and since they left Yemen, the Court considers that he would also
be able to help them upon return.
Having regard to all of the above, the Court
concludes that substantial grounds for believing that the applicants would be
exposed to a real risk of being killed or subjected to treatment contrary to
Article 3 of the Convention if deported to Yemen, have not been shown in the
present case. Accordingly, the implementation of the deportation order against
the applicants would not give rise to a violation of Articles 2 or 3 of the
Convention. The Court further finds that, in the circumstances of the present
case, it does not raise any other issues under the Convention.
II. RULE 39 OF THE RULES OF COURT
97. 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.
98. 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
1. Declares unanimously the application
admissible;
2. Holds by six votes to one that the
applicants’ deportation to Yemen would not be in violation of Articles 2 or 3
of the Convention;
3. Decides unanimously to continue to
indicate to the Government under Rule 39 of the Rules of Court that it is
desirable in the interests of the proper conduct of the proceedings not to
deport the applicants until such time as the present judgment becomes final or
further order.
Done in English, and notified in writing on 28 June 2012,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Claudia Westerdiek Dean
Spielmann
Registrar President
In accordance with Article 45 § 2 of the Convention and
Rule 74 § 2 of the Rules of Court, the separate opinion of Judge Power-Forde is
annexed to this judgment.
D.S.
C.W.
DISSENTING OPINION OF JUDGE POWER-FORDE
I voted against the finding of no violation of Articles 2 and
3 in this case. My assessment of the risk of ill-treatment which the applicants
would face, if deported, relates, primarily, to the first, second and fifth-all
of whom are women-and to the sixth applicant who is a 13 year old girl
(hereinafter “the applicants”).The
first applicant and her daughters left Yemen and have been in Sweden since 2006. They claim to have escaped from X - a violent man - who is the husband
of the first applicant and the father of her children. The first applicant’s
oldest daughter (the second applicant) claims to have been forcibly married at
the age of 14 and to have suffered and fears suffering ongoing violence at the
hands of her spouse. Having failed in her courageous efforts to prevent her
second daughter (the fifth applicant) from being forcibly married at the age of
12, the first applicant fled Yemen with this child and sought refuge in Sweden.
She and the other applicants claim that they will suffer persecution as victims
of so called ‘honour crimes’, if returned to Yemen, particularly, having failed
to honour and respect ‘cultural’ principles within that patriarchal and fundamentalist
society.
The Court frequently affirms that domestic authorities, having
had the benefit of direct contact with all persons concerned, are best placed
to assess questions of credibility. It is significant for me - as it was for
the dissenting judge before the Migration Court of Appeal - that the Board
which met and interviewed the first applicant (an illiterate and traumatised
woman) and the fifth applicant (then a 12 year old child), did not question
their credibility or the overall authenticity of their history. In such
circumstances, I see no convincing reason for this Court to do so and I have
voted on the assumption that the applicants’ account of gender based violence
and forced child marriage is a true one. Furthermore, their history is wholly
consistent with the independent research findings on child marriage and
gender-based violence in Yemen as contained in such reports as the 2011 Human
Rights Watch: “How Come You Allow Little Girls to Get Married?”
Assuming then the credibility of their story, two questions
arise. Is gender-based violence, whether in the form of bodily assault or the
physical and psychological violence inherent in a child or young girl being
forcibly married, sufficient to reach the minimum standard required under Article
3 in circumstances where these practices form part of a third country’s ‘traditions’?
If so, have the applicants established a real risk of being subjected to such
treatment if returned to Yemen?
In Opuz v. Turkey, (no. 33401/02, ECHR 2009) the Court
made four important findings which, to my mind, are relevant to the instant
case. The Court accepted that victims of domestic violence fall within a group
of “vulnerable individuals” entitled to State protection (§ 66). It further
confirmed that physical violence and psychological pressure of the type that
occurs within domestic abuse amounts to ‘ill-treatment’ within the meaning of
Article 3. Based on the authorities’ failures, in that case, to take protective
measures in the form of effective deterrence against serious breaches of the
applicant’s personal integrity by her husband, the Court in Opuz held,
unanimously, that Article 3 of the Convention had been breached. Finally,
having regard to the independent research evidence available, the Court
accepted that domestic violence such as occurred in that case “may be regarded
as gender-based violence which is a form of discrimination against women” (§
200).
These findings apply with equal force to the instant case. The
fact that the gender based violence occurs in Yemen in no way diminishes the
relevance or applicability of the Opuz principles. These women fall
within a group of “vulnerable individuals” entitled to State protection. Such
protection is not only unavailable in their home country; it is not even
considered necessary. The beating of women, their forced isolation or
imprisonment and forced early marriage are not addressed in Yemeni law. Marital
rape is not a criminal offence. Violence against women and children is
considered ‘a family affair’ and there is no minimum age for marriage.
The violence inflicted upon the first applicant, in the form of frequent
beatings, burning and threatened assaults with a knife,
is similar to the violence described in Opuz and, consequently, must
also be considered to constitute ‘ill-treatment’ within the meaning of Article
3. There is compelling evidence that the Yemeni authorities fail to take
protective measures in the form of effective deterrence against domestic
violence and child marriage.
There is nothing to suggest that this situation is likely to change upon the
applicants’ return to that country.
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).
Objectively, the policies, practices and laws of Yemen demonstrate that systemic and structural discrimination in the form of gender-based
violence exists in that country and that breaches of the most fundamental human
rights of women and girls are common.
To my mind and in the light of their credible history, the subjective test has
also been satisfied by these applicants. That the real risk of ill treatment
occurs in a country whose ‘traditions’ endorse such practices against women in
no way diminishes the fact that domestic and gender based violence violates
Article 3.
The Migration Board rejected the women’s application for
protection against honour related crimes, forced marriage and/or domestic
violence on the basis that the family’s problems were related to ‘financial matters’
(§16 of the Judgment). In essence, it found that both the second and, if
necessary, the fifth applicant could trade their way out of ‘any problems that
might arise’ (§15). The fifth applicant could pay her father the equivalent of
a potential dowry to avoid being forcibly married and the second could divorce
and reimburse her husband for the ‘wasted dowry’ he had paid for her at the
time of her forced marriage. The Migration Court, which refused to conduct a
hearing, also considered that the applicants’ reasons for protection mainly
concerned problems within ‘the personal sphere caused, inter alia, by
the country’s traditions’ (§21). It affirmed that before international
protection could be considered for problems of violence and reprisals within
the family, all avenues of mediation and protection by the national authorities
should be tried (§21).
The rationale offered by the domestic authorities in refusing
the applicants’ claims for protection is not at all convincing. With respect,
it displays a remarkable lack of insight into the reality of life for many
women in Yemen-and for these applicants, in particular. Furthermore, the
protection of a person’s fundamental human rights cannot be reduced to a
question of currency. The right to self-determination, to respect for one’s
bodily integrity and the right not to be ill treated are not commodities which
can be ‘traded’. One should not have to pay to be left alone. The applicants’
problems ‘within the personal sphere’ that are caused by their ‘country’s
traditions’ are, to my mind, sufficiently serious as to amount to a violation
of Article 3. To demand that vulnerable women exhaust meagre, discriminatory
and ineffective ‘remedies’ before courts that can sanction the marriage of a 12
year child (as did the Yemeni court in this case)-before a grant of
international protection may be considered-is to demand too much.
In her separate opinion the dissenting judge in the Migration
Court of Appeal argued that leave to appeal should have been granted to the
applicants in order to establish legal principles concerning the circumstances
under which child marriage, forced marriage and honour crimes could constitute
“persecution” on the basis of gender. She also questioned the extent to which
asylum seekers should be required to seek protection in their home countries
before international protection may be granted in circumstances where
international sources indicate the difficulties which certain groups, such as,
women, face in seeking and obtaining help from the authorities. These are
important issues raised by this case and they merit the attention of this Court
too.
