Risk of torture for an Afghan citizen who converted to Christianity if expelled to his country of origin. His return would constitute a violation of Article 3 of the ECHR.
JUDGMENT
Α.Α. v. Switzerland 5/11/2019 (no. 32218/17)
SUMMARY
Asylum, fear of persecution, torture, religion.
The applicant, an Afghan citizen, arrived in Switzerland and applied for asylum on the grounds of persecution in his country of origin if he returned because he had converted to Christianity. His application was rejected and in the appeal, the domestic Courts offered a solution to his return to another city where his confidences had not been made known and his submission to a secret life without the right to express his worship, but the duty Judge asked the Swiss government not to depart under Article 39 of the convention until the ECHR decides.
Strasbourg found substantial deficiencies in the domestic courts’ control of the case because they had failed to adequately assess the risks that the applicant might face if deported to Afghanistan, nor had he been asked about his daily routine and how he could, if he returned, continue to practice it, nor did he substantiate by international conventions the practice of people converting to Christianity, so held that the return would create risks being subjected to torture (violation of Article 3).
PROVISIONS
Article 3
Article 39
PRINCIPAL FACTS
The applicant is an Afghan national who claims to have been born in 1996 and lives in the Canton of
Ticino.
In March 2014 A.A. arrived in Switzerland. He applied for asylum and stated that he had left
Afghanistan because of the lack of security in that country and his conversion from Islam to
Christianity.
In February 2015 the State Secretariat for Migration (SEM) rejected his application, noting that the
grounds for asylum were not credible.
In October 2016 the Federal Administrative Court confirmed the SEM’s decision on the credibility of
the asylum grounds, but found that the applicant’s conversion in Switzerland was genuine. It was of
the view that the applicant would not be exposed to serious harm in Afghanistan as a result of his
conversion and ordered his removal to that country. It further held that, while the complainant
could not be returned to his region of origin (Ghazni province), he would have an internal protection
alternative in Kabul, where his uncles and cousins lived. His conversion to Christianity, which had
occurred in Switzerland, was not a decisive factor, as it was not known to his relatives in Kabul.
In May 2017 the duty judge decided to apply Rule 39 of the Court’s Rules of Court and asked the
Swiss government not to deport A.A. to Afghanistan during the proceedings before the European
Court of Human Rights.
THE DECISION OF THE COURT
Article 3
The Court noted that according to many international documents on the situation in Afghanistan,
Afghans who had become Christians or who were suspected of conversion would be exposed to a
risk of persecution by various groups. It could take the form of State persecution and result in the
death penalty.
The Court found that in its judgment of 21 October 2016 the Federal Administrative Court, the only
judicial body to have examined the case, had not looked at the applicant’s practice of his Christian
faith since his baptism in Switzerland or how he could, if returned, continue to practise it in
Afghanistan. The court had merely presumed that he would have an internal protection alternative
by going to live in Kabul with his uncles and cousins, on the basis that his conversion to Christianity
was not known to his relatives there.
In the Court’s view this argument did not stand up to serious scrutiny of the specific circumstances
of the case. The Federal Administrative Court should have carried out its examination by looking at
how the applicant practised his Christian faith in Switzerland and could continue to practise it in
Afghanistan, for example by referring that assessment back to the first-instance authority or by
submitting a list of relevant questions to the applicant; but it had not done so.
In the Court’s view, the Federal Administrative Court’s explanation that the applicant’s return to
Kabul would not be problematic because he had not spoken of his conversion to Christianity to his
relatives in Afghanistan, but that he had only shared his beliefs with those closest to him, implied
that the applicant would nevertheless be obliged, in the event of his return, to change his social
conduct by confining it to a strictly private level. He would have to live a life of deceit and could be
forced to renounce contact with other Christians. The Court further noted that, in a leading
judgment published shortly after the judgment in the present case, the Federal Administrative Court
had itself conceded that the daily dissimulation and negation of one’s inner beliefs in the context of
Afghan society could, in certain cases, be characterised as a form of unbearable mental pressure.
Lastly, the Court observed that the applicant belonged to the Hazara community, which continued to
face a degree of discrimination in Afghanistan. Even though the applicant had not specifically relied
on his ethnic origin in support of his asylum application and this factor was not decisive for the
outcome of the case, the Court could not completely overlook this aspect, which had not been
referred to at all by the domestic courts. The Court noted that the Federal Administrative Court’s
comparison of the situation in Afghanistan to that in central Iraq appeared particularly problematic
as it was not substantiated by international reports on the experience of converts to Christianity in
Afghanistan.
The Court found that the Federal Administrative Court, while accepting that the applicant, of Hazara
ethnicity, had undergone a conversion from Islam to Christianity while in Switzerland and that he
could therefore be regarded as belonging to a group that was exposed to a risk of ill-treatment if
returned to Afghanistan, had not engaged in a sufficiently serious examination of the consequences
of the applicant’s conversion. Consequently, there would be a violation of Article 3 if the applicant
was returned to Afghanistan.
Just satisfaction (Article 41)
As the applicant had not claimed just satisfaction, the Court took the view that there was no need to
make any award on this basis.
