R.C. v. Sweden: the burden of proof in asylum cases

Sweden is recently convicted by the European Court of Human Rights in the CASE OF R.C v. SWEDEN concerning an Iranian asylum seeker. On 9 march 2010 the Court issued a judgment where it held by six votes to one that the deportation of the applicant to Iran would consist a violation of article 3 ECHR. Judge Fura expressed a dissenting opinion.

R.C. submitted to have participated in a demonstration in 2001 against the Iranian regime following which he had been arrested and tortured and detained for fourteen months. Although he had never been formally tried, he appeared several times before a revolutionary court, where a decision had to be made about the maintenance of his detention. During one of these religious hearings, the applicant managed to escape with the help of a friend. The applicant submitted also that he had been subjected to torture during his detention. He provided a medical certificate of February 2005 carrying the doctor’s conclusion that the injuries found on his body could well originate from torture. When R.C. arrived in Sweden in 2003 he immediately requested asylum near the Swedish Migration Board. This request was refused as the national authorities doubted the credibility of his account of events underlining that revolutionary courts were generally not open to the public, that the applicant had not substantiated his allegations and found that there was no proof that he would be tortured or ill treated if he returned to Iran. The appellate courts also rejected his asylum request.

The Court reiterates its principles that the duty 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, lays with the applicant . The Court also acknowledges that the national authorities are better placed to assess the facts submitted and the credibility of the request as they get the opportunity to see and to hear the asylum seeker. However the Court comes to the conclusion, contrary to the opinion of the Swedish authorities, that the basic story of R.C. is consistent and credible, although there are some uncertainties about the credibility of his escape. Furthermore, the Court accepts the conclusions of the medical report and holds that “the State has a duty to ascertain all relevant facts, particularly in circumstances where there is a strong indication that an applicant’s injuries may have been caused by torture”. The Court takes also into account the general information about Iran that states that anyone who demonstrated or in any way opposed the regime also risked being detained and tortured in Iran and that Iranians returning to their home country and not being able to prove that they had left the country legally ran a particularly high risk of attracting the authorities’ attention. Finally, the Court considers “that the onus rests with the State to dispel any doubts about the risk of his being subjected again to treatment contrary to Article 3 in the event that his expulsion proceeds”. Having regard to all this the Court concludes that there are substantial grounds for believing that in case the applicant would be deported to Iran, he will be subjected to torture or ill-treatment.

Judge Fura expresses in her dissenting opinion the concern whether the Court shouldn’t be more reluctant to give any specific instructions to the domestic authorities as to what procedural measures to take. In its judgment the Court stated namely that where medical reports show a strong possibility that the injuries of the applicant are caused by torture, the duty to remove any doubt about this lays with the domestic authorities. Consequently the Court held that the domestic authorities should have directed an expert opinion on their own motion.

Secondly, taking into account its principle that “the Court’s examination of the existence of a real risk must necessarily be a rigorous one” (among others Saadi v. Italy, §128), the question can arise, apart from the outcome in this judgment, whether the Court shouldn’t have taken a more critical approach towards inconsistencies in the whole story and to the non-absolute character of medical reports.

By Saïla Ouald-Chaib