opencaselaw.ch

CAT/C/80/D/1073/2021

R and K v. Sweden

UNO-Ausschuss gegen Folter (CAT) · 2024-07-18 · en UN

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

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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.