Discontinuance decision; Subjects: SWEDEN, TORTURE AND OTHER CRUEL TREATMENT; [CAT: UNO-Antifolterkonvention, Übereinkommen gegen Folter; Convention contre la torture; Convenzione contro la tortura]
Volltext (verifizierbarer Originaltext)
GE.24-14695 (E)
Committee against Torture
Decision adopted by the Committee under article 22 of the
Convention, concerning communication No. 1073/2021**, ***
Communication submitted by:
R and K (represented by counsel, Vadim
Drozdov)
Alleged victims:
The complainants and A and B
State party:
Sweden
Date of complaint:
12 May 2021 (initial submission)
Document references:
Decisions taken pursuant to rules 114 and 115 of
the Committee’s rules of procedure, transmitted
to the State party on 14 May 2021 (not issued in
document form)
Date of adoption of decision:
18 July 2024
Subject matter:
Deportation to Belarus
Procedural issue:
Level of substantiation of claims
Substantive issue:
Risk of torture if deported to country of origin
(non-refoulement)
Article of the Convention:
3
1.1
The complainants are R, a national of Belarus born in 1979, and his common-law
partner, K,1 a national of Belarus born in 1983. They submit the communication on their own
behalf and on behalf of their two children, A,2 born in 2006, and B, born in 2019. The
complainants applied for asylum in Sweden but their applications were rejected. At the time
of submission of the communication, they were facing deportation to Belarus and claimed
that, if Sweden were to proceed with their deportation, it would be in violation of its
obligations under article 3 of the Convention. The State party has made the declaration
pursuant to article 22 (1) of the Convention, effective from 26 June 1987. The complainants
are represented by counsel.
1.2
On 14 May 2021, pursuant to rule 114 (1) of its rules of procedure, the Committee,
acting through its Rapporteur on new complaints and interim measures, requested the State
Reissued for technical reasons on 3 September 2024.
** Adopted by the Committee at its eightieth session (8–26 July 2024).
*** The following members of the Committee participated in the examination of the communication:
Todd Buchwald, Jorge Contesse, Claude Heller, Erdogan Iscan, Peter Vedel Kessing, Liu Huawen,
Maeda Naoko, Ana Racu, Abderrazak Rouwane and Bakhtiyar Tuzmukhamedov.
1 R and K met in 2007 and have been living together since 2013.
2 R’s stepchild.
United Nations
CAT/C/80/D/1073/2021
Convention against Torture
and Other Cruel, Inhuman
or Degrading Treatment
or Punishment
Distr.: General
26 August 2024
Original: English
CAT/C/80/D/1073/2021
2
party not to deport the complainants and their children to Belarus while their complaint was
being considered by the Committee.
Facts as submitted by the complainants
2.1
In 2008, R and K created a real estate company and, in 2010, R was convicted of fraud
and sentenced to five and a half years in prison.3 His personal property and the company’s
assets were confiscated. In prison, R met X, a member of the Belarusian opposition and
anti-corruption activist, with whom he shared a cell for about a year. R assisted X in his
political activities, such as writing newspaper articles and submitting complaints to the prison
authorities. During his imprisonment, R was systematically persecuted and harassed,
including by means of punitive confinement, frequent beatings, deprivation of sleep and food
for several days, humiliation and threats from prison staff.4
2.2
In 2013, R was approached by agents of the State Security Committee (KGB) of
Belarus who offered to ensure his release from prison if he became an informant. He was
asked to report on businesspersons with anti-government views and provide detailed
information about them and their finances. The agents threatened to kill him if he did not
accept the offer. R eventually agreed and, in March 2013, he was released from prison but
remained in contact with X. R started a construction company but was detained again on
1 August 2013 for stealing construction equipment.5 On 24 July 2014, R was sentenced to
four and a half years in prison for theft. He was informed by the KGB that the imprisonment
was a punishment for his reluctance to cooperate with them.
2.3
During R’s imprisonment, the KGB systematically persecuted K and her family and
made verbal threats that they would take A away from her.6 On 5 April 2016, K’s flat was
searched by the KGB,7 who seized money and shares of the company and allegedly found
drugs. The KGB officers beat and insulted her, threatened her with imprisonment and
requested information about R’s assets. K reported this incident to the KGB, to the
Investigative Committee and to the Ministry of Internal Affairs, but those bodies refused to
start an investigation into the incident.8 On 8 April 2016, KGB agents searched the flat of
K’s mother,9 intimidating and threatening her. During the search, K’s mother started to feel
ill and died later that day.10
2.4
On 1 February 2017, R was released from prison.11 He was contacted regularly by the
KGB to remind him that he needed to cooperate and to ask him about his relationship with
X. R travelled to countries in the European Union for short periods of time on several
occasions12 and, when he returned from a trip in November 2017, he learned that K had been
illegally placed in a psychiatric hospital for two weeks by the KGB. 13 R and K started
planning their departure from the country and, on 23 December 2017, K was issued with a
Schengen visa. They travelled by car to the Russian Federation and then to Latvia and
Lithuania. They entered Sweden legally by plane on 25 December 2017. A arrived in Sweden
legally by plane on 1 August 2018. On 18 December 2018, the Swedish police decided that
K had no right to be in Sweden, as she had not demonstrated a legal right to stay in the country
3 The complainants explain that officials from the Ministry of Internal Affairs gave them an ultimatum:
either regularly share the company’s profits or pay $250 000, otherwise they would be jailed. The
complainants refused to share the profits or make the payment, so the authorities initiated a
preliminary investigation against them.
4 The complainant does not clarify the reasons for this.
5 The complainants explain that R was renting equipment from a person who was forced by the KGB to
file a report against R alleging that he had stolen the equipment.
6 K also told the Swedish migration authorities that the KGB had forced her into prostitution.
7 A copy of the search record has been provided.
8 The complainants allege that they gave the originals of the replies received from these bodies to their
public counsel in the Swedish asylum proceedings, who did not submit them to the Swedish
authorities or return them to the complainants.
9 A copy of the search record has been provided.
10 A copy of the death certificate has been provided.
11 A copy of the certificate of imprisonment dated 1 February 2017 has been provided.
12 No further details have been provided.
13 No other details have been provided.
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and had been convicted of theft and given a conditional sentence. K was issued with a re-entry
ban.
2.5
On 14 April 2019, R applied for asylum and, on 18 April 2019, K and A also applied
for asylum.14 During the interview with R held on 20 May 2019, he declared that he risked
being imprisoned upon return to Belarus because he had not cooperated with the KGB and
had links with the opposition, including X. During K’s interview on 31 July 2019, she stated
that she was at risk of being placed in a psychiatric hospital and argued that her daughter, A,
risked being placed in an orphanage. On 30 January 2020, A was interviewed15 and declared
that she had witnessed the police visiting R several times and confirmed that she had received
threats indicating that she would be taken away from her mother.
2.6
On 17 April 2020, the Swedish Migration Agency rejected the complainants’ request
for asylum. In the case of R, the Agency did not dispute that he had been in prison but stated
that it was not possible to prove his relationship with X based on the screenshot provided of
alleged messages between R and X, as there was no way to confirm that it was R who had
had that conversation with X. In addition, it was not possible to verify X’s social media
account in order to conclude that he had indeed written the text in question. The Agency
noted that R had left and returned to Belarus legally on several occasions, had been able to
obtain a new passport in 2017, had been in both Lithuania and Poland without submitting an
asylum application and had applied for asylum over a year after arriving in Sweden.
2.7
As for K, the Swedish Migration Agency noted that she had not submitted any written
evidence to support her claim. Although she had said that she would contact her sister to
obtain documents supporting her claim that she had a business and that her home had been
searched, K had neither submitted those documents nor provided any explanation as to why
she had not submitted them. The Agency referred to the Handbook on Procedures and Criteria
for Determining Refugee Status under the 1951 Convention and the 1967 Protocol relating
to the Status of Refugees16 to conclude that that had had a negative impact on her reliability
with respect to her statement that she owned a business and that her home had been searched.
The Agency further noted that K had submitted incorrect information to the Swedish
authorities, particularly concerning whether she had left Sweden,17 which had negatively
affected her general credibility. In addition, although the threat had emerged in 2009, K had
remained in Belarus for an extended period of time thereafter, which suggested that she had
not perceived the threat to be immediate or urgent. The Agency also noted that K had applied
for asylum over a year after arriving in Sweden and only after she had been in contact with
the police and had been issued a refusal-of-entry order.
2.8
The Swedish Migration Agency noted that, under the provisions of article 4 (5) of
Directive 2011/95/EU of the European Parliament and of the Council of 13 December 2011
on standards for the qualification of third-country nationals or stateless persons as
beneficiaries of international protection, for a uniform status for refugees or for persons
eligible for subsidiary protection, and for the content of the protection granted, to be accorded
the benefit of the doubt, an applicant must apply for international protection at the earliest
possible time, unless they can demonstrate good reason for not having done so. However, the
Agency found the complainants’ explanation for the delay in claiming asylum – that they
believed they had purchased Czech citizenship – to be unacceptable. Therefore, it concluded
that R and K had not plausibly demonstrated that there was a threat to them from the KGB.
2.9
In May 2020, R and K were invited by X18 to join his opposition movement. On
20 May 2020, X – in his capacity as director of a non-governmental organization (NGO)
registered outside Belarus – appointed R as the chief investment specialist and investment
14 The Swedish Migration Agency held an introductory interview with R on 17 April 2019 and with K
on 27 May 2019. On 27 May 2019, the Agency also held a child-focused interview with K regarding
A. On 7 November 2019, the Agency held a child-focused interview with R and K regarding B.
15 On the same day, an interview was held with K regarding the alleged grounds for asylum for A and B.
16 Paras. 203–205 (a).
17 K had stated to the police that she had left Sweden and then returned, but then she told the Swedish
Migration Agency, during the asylum investigation, that she had not left the country and that she had
said that she had done so because she was afraid of being expelled.
18 The complainants did not provide a copy of this invitation.
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manager of that opposition movement and K as a financial consultant and secretary of the
same movement.19 On 25 June 2020, X issued a document authorizing R to act in the name
of his NGO for a period of three years.20 In June 2020, X sent a letter to R and K attesting to
their involvement in his activism.21 That same month, R participated in a public protest in
Stockholm, denouncing human rights violations and political oppression in Belarus while
wearing a T-shirt and holding a placard bearing the name of the opposition movement.
2.10
The complainants decided to appeal the Swedish Migration Agency’s decision on the
basis of the documents related to their affiliation to the opposition movement, as well as other
official documents issued by the Belarusian authorities during criminal proceedings against
them.22 On 26 May 2020, their public counsel filed an appeal before the Migration Court in
Stockholm, which was dismissed on 6 November 2020 based on the same arguments as those
previously provided by the Swedish Migration Agency. On 17 December 2020, the
complainants’ public counsel filed a request for leave to appeal before the Migration Court
of Appeal in Stockholm, which was rejected on 12 January 2021.
2.11
Following the notification of the decision rendered by the Migration Court of Appeal,
the complainants contacted their public counsel and requested him to return the documents
they had provided in support of their asylum procedures. The public counsel provided some,
but not all, of the documents during a meeting on 24 February 2021 and withheld the texts of
the appeals he had filed before the Migration Court and the Migration Court of Appeal. When
the complainants obtained the court decisions, they realized that the public counsel had not
submitted the majority of the documents that they had provided, especially the ones related
to the house searches by the KGB and the complainants’ involvement in the opposition
movement led by X.23
2.12
On 9 March 2021, the complainants invoked impediments to enforcement based on
new circumstances, arguing that there was a risk that they would be subjected to the death
penalty or to torture and other ill-treatment on account of their involvement in the opposition
movement headed by X. They submitted documents that the public counsel had not
previously provided to the authorities, including the documents from X’s NGO and other
documents proving their association with X. These included screenshots and videos of
communications through social media platforms and audio messages in which R and X
discussed the financing of X’s organization and its operations. The last communication
between R and X allegedly took place on 10 November 2020, a month before X’s arrest.24
On 16 March 2021, the complainants reported the misconduct of their former public counsel
to the Swedish Bar Association, alleging that the counsel had not provided the necessary
evidence and invoking the loss of important original documents.25
2.13
On 16 April 2021, the Swedish Migration Agency considered that no new
circumstances had emerged that constituted impediments to enforcement. It found that the
new evidence did not disclose any new circumstances in the case, reiterating that the
complainants’ application for international protection – including what had been stated in
relation to X and contacts with the KGB – had already been examined. The Agency added
that the evidential value of the documents submitted was low, as they were copies of a simple
nature. It also considered that the complainants’ dissatisfaction with their previous public
19 Copies of the two letters of appointment have been provided.
20 A copy of this document has been provided.
21 No copy of this letter has been provided, as the complainants gave the original to their counsel in July
2020.
22 The complainants specify that these included search records and decisions of law enforcement
agencies and the courts.
23 Including the letter provided by X in June 2020 to attest to their involvement in his activism.
24 The complainants submit that X and 12 of his associates were arrested on suspicion of terrorism and
mention that the public media and high-level officials commented on this arrest, alleging that X and
his associates were planning terrorist acts across the entire country.
25 On 18 January 2022, the Swedish Bar Association concluded that it was the complainants’ word
against the public counsel’s and that the complainants had not submitted any evidence to show that
their former public counsel had breached the Code of Professional Conduct in the way that they
alleged.
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counsel did not entail circumstances of an exceptional nature preventing the enforcement of
the removal order.
2.14
On 23 April 2021, the complaints lodged an appeal, claiming that the authorities’
refusal to examine the new evidence was a violation of article 3 of the Convention, as it
demonstrated that the authorities’ decision to call into question R’s association with X was
manifestly wrong. The complainants reiterated that it was because of their work with X that
they risked being tortured or ill-treated upon their return to Belarus. They argued that the
decision of the Swedish Migration Agency regarding the low evidential value of the
documents was invalid, as the Agency had not taken any measures to verify their genuineness.
2.15
On 12 May 2021, the Stockholm Administrative Court dismissed their appeal. It
considered that the evidence referred to by the complainants constituted only modifications
and additions to their previous account. The Court also recalled that for a new examination
to be granted, new circumstances must have emerged that could be assumed to constitute the
kind of lasting impediment to enforcement referred to by the Aliens Act and that it must not
have been possible to invoke those circumstances earlier or to provide a valid excuse for not
having invoked them earlier.
Complaint
3.1
The complainants submit that, if they and their children are returned to Belarus, they
face a real risk of being subjected to the death penalty or to torture and ill-treatment, in
violation of article 3 of the Convention. The risk stems from the involvement of R and K in
the political activities and work of X and from R’s defiance of the security services and the
ill-treatment he suffered in the past.
3.2
The complainants argue that it is very likely that the authorities of Belarus have
become aware of their work with X and with his opposition movement. They contend that,
after the detention of X, the authorities could have obtained access to his electronic files and
digital communications, which contain delicate information about the involvement of R and
K in the opposition movement. X and his associates were charged under article 289 of the
Criminal Code of Belarus, which sets out heavy punishments, including the death penalty,
for persons convicted of acts of terrorism, so the complainants believe that, given their direct
links with X and their involvement in his political activities, it is likely that they will be
charged under the same provision upon their return to the country.
3.3
The complainants recall that they have already been persecuted by the authorities of
Belarus, especially by the KGB, which is responsible for investigating the case of X. Even if
the complainants were not charged with terrorism under the Criminal Code, it is likely that
the authorities would fabricate a criminal case against them, as they previously did for
reasons related to their defiance of the security services, which led to R’s previous
imprisonment. The complainants assert that the State party’s authorities did not dispute that
R was imprisoned twice on fabricated charges. The complainants also refer to the publicly
available information about the human rights situation in Belarus, which shows that, since
the 2020 presidential elections, any active opposition member risks being subjected to
politically motivated criminal prosecution. They add that persons arrested on politically
motivated criminal charges are routinely subjected to torture or other ill-treatment during
their arrest, transportation, interrogation and detention in prison facilities, in order to, inter
alia, obtain confessions or gain access to digital devices. Regarding the situation of K, the
complainants highlight that she was also harassed and mistreated by the KGB, including by
means of methods that could amount to torture or other forms of ill-treatment prohibited
under the Convention.
3.4
The complainants point out that there is a real risk that their persecution would have
repercussions on their children. They refer to past threats from the authorities, indicating that
A would be placed in an orphanage. They refer again to the general human rights context in
Belarus, where politically active parents often face threats from government agencies,
indicating that they will take their children away. They add that, even if R and K were not
immediately detained or persecuted upon their return to Belarus, they would continue to be
politically active, resulting in a real risk that A and B would be placed in an orphanage, which
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would cause the complainants and their children mental suffering incompatible with article 3
of the Convention.
3.5
The complainants contest the findings of the Swedish migration authorities, in
particular the way they assessed the evidence. The Swedish Migration Agency concluded
that the evidential value of the screenshots related to the messages between R and X was low,
but it did not take any measure to verify the veracity of the evidence, which shows their lack
of due diligence. They note that one of X’s friends on social media is a former ambassador
of Sweden to Belarus, who was present in the courtroom during the conviction of X in 2010,
but no efforts were made to contact that person to verify the authenticity of the social media
account. The complainants argue that the authorities’ failure to take simple steps to verify the
authenticity of the proof they provided, instead merely stating that the evidence was of low
evidential value, is a violation of article 3 of the Convention.26
3.6
The complainants also allege that the State party’s authorities failed to ensure that
their public counsel – who was appointed by the Swedish Migration Agency – represented
them diligently. They argue that the representation offered by the public counsel fell short of
what was to be expected, as demonstrated by his failure to present the evidence necessary to
support the complainants’ asylum claims, the loss of important documents and the brevity of
the presentation of the complainants’ argumentation to the authorities. The suitability of
public counsels to represent asylum-seekers is determined by the Swedish Migration Agency,
which means that any lack of proper representation can be attributed to the Swedish
authorities. The complainants add that this lack of legal representation led to a failure by the
migration authorities to assess their statements and risks in a rigorous and correct manner.
3.7
The complainants contend that the rejection by the Swedish Migration Agency of their
request for re-examination fell short of the necessary standards, as it did not take into account
the abundant evidence in support of their association with X, including voice messages. The
authorities decided to disregard the evidence, stating that their relationship with X had
already been examined and that the evidential value of the copies of documents that the
complainants had submitted was low, without taking measures to verify their genuineness.
The complainants argue that this is not in line with the Committee’s jurisprudence, according
to which a violation can be found when the authorities carried out an early and summary
assessment of a complainant’s arguments while questioning the genuineness of the
documents provided, but without taking any measures to verify their genuineness. 27 The
complainants argue that the obligations of the migration authorities to verify the authenticity
of the documents provided in asylum procedures, and the limits regarding the designation of
copies as having no probative value, have also been established by the European Court of
Human Rights.28
3.8
In conclusion, the complainants submit that, in the re-examination procedure, the
Swedish Migration Agency made no effort to assess the new circumstances they had invoked,
which included new facts concerning the complainants and general information on the
persecution of X and the human rights situation in Belarus. As their claim was not thoroughly
investigated and no steps were taken to verify the genuineness of the evidence they submitted,
the State party violated its obligations under article 3 of the Convention.
State party’s observations on admissibility and the merits
4.1
On 14 January 2022, the State party challenged the admissibility of the complaint,
arguing that it was manifestly unfounded because it failed to meet the minimum level of
substantiation. It explains that the decision to deny K entry into Sweden became final on 8
January 2019. While both complainants and their children applied for asylum in Sweden, the
Swedish Migration Agency decided, on 17 April 2020, to expel R, A and B, but did not
include K, as there was already a valid removal order for her. The decision to deny K entry
will thus become statute barred on 8 January 2023.
26 M.G. v. Switzerland (CAT/C/65/D/811/2017), para. 7.4.
27 Ibid.
28 M.A. v. Switzerland, Application No. 52589/13, Judgment, 18 November 2014, paras. 65 and 68.
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4.2
On the merits, referring to the decisions issued at the domestic level, the State party
submits that there is no reason to conclude that they were inadequate or that the outcome of
the domestic proceedings was in any way arbitrary or amounted to a denial of justice. It also
recalls that Belarus is a party to the Convention. While not wishing to underestimate the
concerns that may legitimately be expressed regarding the human rights situation in Belarus,
the State party recalls that the situation does not in itself suffice to establish that the
complainants’ expulsion would be contrary to article 3 of the Convention.
4.3
The State party notes that the complainants have had several opportunities to explain
the relevant facts and circumstances in support of their claim and to argue their case, both
orally – in the presence of their public counsel and through child-focused interviews – and in
writing, before the Swedish Migration Agency and the Migration Court, which are
specialized bodies with particular expertise in the field of asylum law and practice. Through
their public counsel, the complainants have thus been invited to scrutinize, and submit written
observations on, the minutes from the interviews and investigations conducted and to make
written submissions and appeals. However, they have not plausibly demonstrated that they
were of interest to the Belarusian authorities or that there was a threat to them from these
authorities. In particular, the fact that they applied for asylum more than a year after having
arrived in Sweden suggests that they did not perceive their need for protection to be
particularly pressing.
4.4
The State party notes that the complainants’ objections regarding the public counsel
were also raised during the applications for impediments to expulsion and for re-examination
and argues that these claims have been examined by the domestic authorities. It submits that
the Swedish Migration Agency found that these objections did not amount to exceptional
circumstances that would prevent the family’s removal. With regard to the assessment of
evidence, the State party notes, in particular, that the complainants’ alleged association with
an opposition politician had previously been examined by both the Swedish Migration
Agency and the Migration Court and that the new evidence that was submitted constituted
only modifications and additions to the previously examined grounds for protection.
Complainants’ comments on the State party’s observations on admissibility and the
merits
5.1
On 11 March 2022, the complainants submitted their comments on the State party’s
observations, reiterating their initial communication. They insist that the State party failed to
respond to any of the claims regarding the procedural irregularities during the two sets of
proceedings, in which their claims were rejected on formal grounds. They submit that the
Swedish authorities failed to examine R’s statements that he was tortured and ill-treated
during his imprisonment in Belarus and that the public counsel failed to submit supporting
evidence concerning K. They contest the authorities’ determination of the low probative
value of the screenshot of the messages between R and X. They also allege that the State
party did not properly address their objections related to the public counsel regarding his
failure to submit evidence corroborating their risk of torture or ill-treatment in Belarus and
the loss of the originals of those documents. Consequently, the Swedish authorities failed to
assess, in a rigorous manner, the complainants’ statements in the initial asylum procedure, in
violation of article 3 of the Convention.
5.2
As to their request for re-examination, the complainants contest the interpretation of
the domestic authorities. They argue that the State party’s authorities – during the subsequent
international protection procedures – were obliged to assess claims based on new facts or
new evidence that attest to the risk of being subjected to torture or other ill-treatment, even
if they do not disclose new grounds for protection. They claim that such an obligation follows
from the State party’s obligation under article 3 of the Convention.29 They invoke a judgment
by the Court of Justice of the European Union, according to which new elements or findings,
that is, all the documentation at an applicant’s disposal that was not examined in the context
29 Committee against Torture, general comment No. 4 (2017) on the implementation of article 3 in the
context of article 22, para. 13.
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of the decision taken on the previous application and that significantly adds to the likelihood
of the applicant qualifying as a beneficiary of international protection, constitute evidence.30
5.3
The complainants point out that fundamental evidence about R’s and K’s involvement
in the opposition movement was not submitted by the public counsel and was only raised for
the first time during the second set of proceedings, thus constituting new circumstances that
had not been examined by the Swedish authorities before the re-examination procedure. The
complainants had also duly explained to the State party’s authorities why they were unable
to invoke those circumstances during the initial asylum procedure. They refer to the
jurisprudence of the Committee, which, in a previous case, did not accept the assessment of
evidence by the State party on the grounds that the evidence provided was “simple in
nature”.31
5.4
On 15 June 2023, the complainants submitted additional comments, clarifying that,
although the deportation order for K had become statute barred on 8 January 2023 under
Swedish law, she had not filed a new application for international protection in Sweden. They
specify that K has not been granted asylum or a residence permit in Sweden and argue that
the initiation of a new asylum procedure would leave her in an uncertain situation regarding
her expulsion to Belarus, where she risks being subjected to treatment prohibited under
article 3 of the Convention. The complainants argue that K has not lost her victim status
under article 22 (1) of the Convention and rule 113 of the Committee’s rules of procedure.
The fact that her deportation order has expired does not mean she no longer risks being
expelled from Sweden, as she has not received a residence or asylum permit. The
complainants refer to a case against Sweden in which the European Court of Human Rights
decided that it could proceed with the examination of the applicant’s case despite the fact that
his deportation order had become statute barred. 32 They also mention that X and his
associates were convicted of, inter alia, creating a criminal organization, attempting to seize
State power and committing acts of terrorism, with X sentenced to 25 years in prison, while
his associates were sentenced to between 2.5 and 20 years in prison.
5.5
The complainants contend that K will not be able to effectively file a new application
for asylum, as there are allegedly no new circumstances in her case, which are necessary to
effectively file a new application. During their request for re-examination, they have
presented all circumstances that prove their risk of persecution, torture and other ill-treatment
due to their links with X and the opposition movement. As the Swedish authorities did not
deem their connection with the opposition movement to be credible during the first asylum
proceedings and did not take into account the new evidence during the re-evaluation
proceedings, the conviction of X and his associates will not be considered new circumstances
warranting a new consideration of K’s case.
5.6
On 24 June 2024, the complainants said that, on 31 May 2024, the Swedish Migration
Agency had rejected K’s new application for asylum, because she had not provided reliable
information about her need for protection. The Agency found that K had consistently
provided scant information regarding her political activity and that she had not submitted any
concrete evidence that would support her claim that she was wanted by the Belarusian
authorities and thus that would make the Agency depart from its previous assessment. It also
considered that the copies of search reports concerning K’s and her mother’s apartments and
a death certificate for her mother had limited evidential value because the Agency lacked
reliable safeguards to prove their authenticity. The Agency noted that K had submitted copies
of an employment certificate and a translation of that certificate to prove that she had been
employed by X’s NGO. However, it considered that the documents had a relatively low
evidential value, as it was not possible to verify who had prepared them and for what purpose.
The Agency made the same assessment regarding the letter allegedly written by X in June
2020.
5.7
The Swedish Migration Agency noted that, although K had alleged involvement at a
relatively high level in X’s opposition movement between May and December 2020, her
30 L.H. vs. Staatssecretaris van Justitie en Veiligheid, Case C‑921/19, Judgment, 10 June 2021,
paras. 23, 50 and 62.
31 I.A. et al. v. Sweden (CAT/C/66/D/729/2016), para. 9.6.
32 F.G. v Sweden, Application No. 43611/11, Judgment, 23 March 2016, paras. 59–84.
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information about the organization and her contacts with it were noticeably vague. The
Agency would have expected more details. It also noted that evidence that could link K more
closely to the organization, such as direct email correspondence or evidence of crypto trading,
was missing. The Agency considered that K should have had access to such evidence and its
absence was interpreted as a credibility problem. The Agency noted that K had allegedly
joined the opposition movement, and relatively quickly obtained a key position, shortly after
the Agency had rejected her application in 2020. K’s appeal is pending.
State party’s additional observations
6.1
On 4 September 2023, the State party provided further observations, clarifying that,
as the decision to expel K had become statute barred, that decision was no longer enforceable
and she could therefore again apply to the Swedish Migration Agency for asylum and a
residence permit. She is thus no longer at risk of being removed and, if she submits a new
application for a residence permit in Sweden, she cannot be expelled while her application is
being examined by the domestic authorities.
6.2
The State party explains that a new asylum application, lodged after the original
decision has become statute barred, entails a full examination of all the reasons for granting
asylum and a residence permit put forward by the applicant at that time. A negative decision
by the Agency is subject to appeal before one of the migration courts, with a possibility of
filing a further appeal before the Migration Court of Appeal. The State party therefore
requests the Committee – in respect of K – to discontinue the examination of the
communication or to declare it inadmissible for lack of victim status or for failure to exhaust
domestic remedies.
Issues and proceedings before the Committee
Consideration of admissibility
7.1
Before considering any complaint submitted in a communication, the Committee must
decide whether it is admissible under article 22 of the Convention. The Committee has
ascertained, as it is required to do under article 22 (5) (a) of the Convention, that the same
matter has not been and is not being examined under another procedure of international
investigation or settlement.
7.2
In accordance with article 22 (5) (b) of the Convention, the Committee shall not
consider any communication from an individual unless it has ascertained that the individual
has exhausted all available domestic remedies. The Committee notes that, in the present case,
the State party has not challenged the admissibility of the complaint on these grounds.
Accordingly, the Committee considers that it is not precluded from examining the
communication under article 22 (5) (b) of the Convention.
7.3
The Committee takes note of the State party’s request to discontinue the
communication in respect of K, as the decision to expel her has become statute barred and
she therefore no longer risks deportation. The Committee also takes note of the complainants’
argument that the fact that her deportation order has expired does not mean that she no longer
risks being expelled from Sweden, as she has not received a residence or asylum permit.
However, the State party has explained that K cannot be expelled while her new application
for asylum is being examined by the domestic authorities. The Committee notes that K has
initiated new asylum proceedings, which are still pending. In the light of this information,
the Committee considers that the communication has become moot and that its consideration
should be discontinued insofar as it relates to K.33 When taking this decision, the Committee
is aware that, in any event, K would be able to submit a new case to the Committee against
the State party if a new risk relating to her removal to Belarus arises in the future.34
7.4
The Committee notes that the State party challenges the admissibility of the
complainant’s claims under article 3 on the basis that they are manifestly unfounded, given
that the complainant has not substantiated the existence of substantial grounds for believing
33 Hereinafter, the Committee will refer only to R as the complainant.
34 A.D. v. Cyprus (CAT/C/75/D/1065/2021), para. 11.4.
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that he, A and B would face a foreseeable, present, personal and real risk of torture if they
were to be returned to Belarus. The Committee considers, however, that the complainant has
sufficiently substantiated his claims for the purposes of admissibility, on the basis of article 3
of the Convention, regarding the risk of being subjected to torture and ill-treatment if he, A
and B were to be returned to Belarus. Accordingly, it declares the communication admissible
and proceeds with its consideration of the merits.
Consideration of the merits
8.1
The Committee has considered the communication in the light of all the information
made available to it by the parties, in accordance with article 22 (4) of the Convention.
8.2
In the present case, the issue before the Committee is whether the return of the
complainant, A and B to Belarus would constitute a violation of the State party’s obligation
under article 3 of the Convention not to expel or to return (refouler) a person to another State
where there are substantial grounds for believing that he or she would be in danger of being
subjected to torture.
8.3
The Committee must evaluate whether there are substantial grounds for believing that
the complainant, A and B would be personally in danger of being subjected to torture upon
return to Belarus. In assessing that risk, the Committee must take into account all relevant
considerations, pursuant to article 3 (2) of the Convention, including the existence of a
consistent pattern of gross, flagrant or mass violations of human rights. However, the
Committee recalls that the aim of such determination is to establish whether the individuals
concerned would be personally at a foreseeable and real risk of being subjected to torture in
the country to which they would be returned. It follows that the existence of a pattern of gross,
flagrant or mass violations of human rights in a country does not as such constitute sufficient
reason for determining that a particular person would be in danger of being subjected to
torture on return to that country; additional grounds must be adduced to show that the
individual concerned would be personally at risk. Conversely, the absence of a consistent
pattern of flagrant violations of human rights does not mean that a person might not be
subjected to torture in his or her specific circumstances. Moreover, the Committee notes that,
since Belarus has not made the declaration provided for in article 22 (1) of the Convention,
in the event of a violation of the rights of the complainant, A and B under the Convention in
that country, they would be deprived of the legal option of recourse to the Committee for
protection of any kind.35
8.4
The Committee recalls its general comment No. 4 (2017) on the implementation of
article 3 in the context of article 22, according to which the risk of torture must be assessed
on grounds that go beyond mere theory or suspicion. Although the risk does not have to be
shown to be highly probable, the burden of proof generally falls on the complainant, who
must present an arguable case establishing that he or she faces a foreseeable, real and personal
risk.36 The Committee also recalls that, in accordance with general comment No. 4 (2017), it
gives considerable weight to findings of fact made by organs of the State party concerned,
while, at the same time, it is not bound by such findings and instead has the power, under
article 22 (4) of the Convention, to make a free assessment of the information available to it,
taking into account all the circumstances relevant to each case.37
8.5
In the present case, the Committee notes that the complainant maintains that he fears
for his life, and that of A and B, should they be returned to Belarus, because he considers that
they will be targeted by the authorities because of his involvement in the political activities
and work of an opposition leader, X, and due to his lack of cooperation with the security
services and the ill-treatment he suffered in the past. To support his argument, he produced
copies of a letter in which X – in his capacity as director of an NGO registered outside Belarus
– appointed the complainant as the chief investment specialist and investment manager of
that opposition movement and also authorized him to act in the name of his NGO for a period
35 Melie v. Switzerland (CAT/C/76/D/1049/2021), para. 7.3; see also Human Rights Council
resolution 52/29.
36 See, inter alia, A.R. v. Netherlands (CAT/C/31/D/203/2002), para. 7.3; and Dadar v. Canada
(CAT/C/35/D/258/2004), para. 8.4.
37 General comment No. 4 (2017), paras. 11, 39 and 50.
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of three years. The complainant also claims that he submitted to the family’s former public
counsel a letter in which X attested to the complainant’s involvement in X’s activism but that
the counsel lost that document and did not produce it in the asylum proceedings. In addition,
the complainant produced a screenshot of an alleged conversation between him and X, as
well as audio files.
8.6
The Committee observes that this evidence has been produced before the Swedish
administrative and judicial authorities. The Committee notes that the Swedish authorities
accepted the fact that the complainant was in prison, but not the allegation that the charges
against him were fabricated – as the complainant asserts in his complaint before the
Committee (see para. 3.3 above). The Committee notes that the complainant alleges that the
Swedish authorities failed to examine his statements that he was tortured and ill-treated
during his imprisonment in Belarus. However, the Committee observes that the complainant
provided no evidence to substantiate his assertions of having been tortured. In addition, the
complainant does not explain why he did not complain himself about torture and ill-treatment
in prison when, according to his declarations, he was helping X to submit complaints to the
prison authorities.
8.7
The Committee notes that the complainant contests the way domestic authorities have
examined his alleged new evidence to support his claims that he was involved in an
opposition movement whose leader, X, has already been sentenced to 25 years in prison for
creating a criminal organization, attempting to seize State power and committing acts of
terrorism. The Committee also notes that the complainant has not produced any evidence that
he would be officially accused of having committed such crimes or of being affiliated to the
alleged criminal organization. The Committee observes that the two documents that were
allegedly issued by X in his capacity as director of an NGO registered outside Belarus
appointing the complainant to a position within that NGO in connection with an opposition
movement were submitted to the Swedish administrative and judicial authorities, which, even
though they did not dismiss them as being fake, deemed them to be of low probative value
because they were copies of a simple nature. The Committee observes that the complainant
has provided no evidence to challenge the specific arguments given by the Swedish
authorities for assigning a low probative value to the evidence that they had adduced in
support of their allegations. The Committee notes the absence from these documents of any
security feature that can be checked, especially given that they were supposedly issued in
another country. In any event, the Committee considers that evidence indicating that the
complainant has worked for a foreign NGO at which X was a director does not necessarily
mean that the complainant was also involved in X’s opposition movement. The Committee
notes that, in the references produced by the complainant concerning the conviction of X, he
was convicted of having created a criminal organization, which is not necessarily the same
as the opposition movement with which the complainant claims to be affiliated.
8.8
The Committee also notes the Swedish authorities’ argument that the complainant’s
relationship with X could not be proved, as, based on the screenshot of alleged messages
between the complainant and X, it was impossible to confirm that the conversation had been
with the complainant. Moreover, X’s account on social media could not be verified, which
made it impossible to be certain that it was X himself who wrote the text in question. Here
again, the complainant failed to provide a reasonable explanation or to provide evidence to
challenge this argument. In these conditions, the Committee cannot accept that it has been
demonstrated that the conversation referred to in the screenshots was indeed between the
complainant and X.
8.9
The Committee further notes that the complainant alleges that the public counsel,
while handling the family’s asylum application, lost some original copies of their documents
or that the counsel did not produce, in the proceedings, the evidence given to him by the
complainant. The Committee notes that the complainant has not produced any evidence to
demonstrate that he actually submitted to the public counsel the documents he claims to have
submitted. The Committee also notes that these claims were brought before both the Swedish
courts and the Swedish Bar Association, which did not find any sign of malpractice. The
Committee recalls the Swedish authorities’ findings that the complainant had left and
returned legally to Belarus several times, without claiming to have encountered problems
with the authorities, that he was able to obtain a new passport in 2017, that he had been in
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Lithuania and Poland without submitting an asylum application and that he had applied for
asylum more than a year after his arrival in Sweden.
8.10
In this regard, the Committee notes that, even if it were to accept the argument that
the complainant had been subjected to persecution, torture and ill-treatment in the past
because of his alleged affiliation with the leader of an opposition movement, the question
that arises is whether the complainant, A and B would be at risk of torture in Belarus at the
present time, if they were forcibly returned. The Committee also notes that, according to its
practice, the onus is generally on the complainant to make an arguable case.38
8.11
With respect to the argument relating to the worsening of the human rights situation
in Belarus, the Committee recalls that the occurrence of human rights violations in the
complainant’s country of origin is not, of itself, sufficient for it to conclude that the
complainant is personally at risk of being tortured there. The Committee notes that the
complainant was given the opportunity to substantiate and clarify his claims before the
domestic authorities. However, on the basis of the evidence provided, it has not been possible
to confirm the complainant’s allegations as to the risk of persecution on account of the
complainant being a member of an opposition movement or to determine the existence of a
personal, foreseeable, real and present risk of being subjected to torture in the event of the
return of the complainant, A and B to their country of origin.39
8.12
In the light of the considerations above, and on the basis of all the information
submitted to it by the complainant and the State party, including on the general situation
regarding human rights in Belarus, the Committee considers that, in the present case, the
information in the file does not allow it to conclude that the return of the complainant, A and
B to Belarus would expose them to a real, foreseeable, personal and present risk of being
subjected to torture or that the authorities of the State party failed to conduct a proper
investigation into the complainant’s allegations.
9.
The Committee, acting under article 22 (7) of the Convention, concludes that the
deportation of the complainant, A and B to Belarus would not constitute a violation by the
State party of article 3 of the Convention.
38 See, for example, M.A.K. v. Germany (CAT/C/32/D/214/2002), para. 13.5; C.A.R.M. et al. v. Canada
(CAT/C/38/D/298/2006), para. 8.10; and N.B.-M. v. Switzerland (CAT/C/47/D/347/2008), para. 9.9.
39 See, for example, M.K. v. Switzerland (CAT/C/60/D/662/2015), paras. 7.8 and 7.9; and D.R. v.
Switzerland (CAT/C/63/D/673/2015), paras. 7.8 and 7.9.