On 2 June 2014, F.G. v. Sweden case (n° 43611/11), concerning the implementation of an expulsion order against a Christian convert, was referred to the Grand Chamber. The issue is whether the conversion to Christianity of an Iranian living in Iran creates a serious human rights violation. The President of the Court granted ECLJ leave to intervene as amicus curiae.
The F.G. v. Sweden case concerns an Iranian citizen who, between 2007 and 2009, worked in Iran as creator and publisher of webpages together with persons who were opposed to the regime. Suffering political persecution, he run to Sweden and applied for asylum and a resident permit. In 2010, he converted from Islam to Christianity. By two judgments of 9 March and 22 November 2011, the Swedish authorities refused to grant him asylum and to stay the enforcement of his expulsion order respectively, considering that he was not in need of protection against the Iranian authorities. On the 12 July 2011, F.G. lodged an application to the ECHR and requested it to apply the Rule 39 of the Rules of the Court in order to stay the expulsion order, as at his return to Iran he will face persecution for his political activity before 2009 and death for his conversion from Islam to Christianity. On 25 November 2011, the ECHR granted this request and indicated to the Swedish Government that he should not be expelled to Iran for the duration of the proceedings before the Court.
On the 16 January 2014, the Fifth Section of the ECHR delivered a judgment (four votes to three) in the case, finding that the implementation of the expulsion order against the applicant would not give rise to a violation of articles 2 and 3 of the Convention (right to life and prohibition of torture and inhuman and degrading treatment).
To arrive at this conclusion the Court considered that the applicant’s request for asylum was appropriately examined by the national authorities, the applicant enjoying effective guarantees against arbitrary decisions, and that the authorities’ conclusion to expulse the applicant was justified, given the information presented before the Court on the situation of the applicant and the one in Iran.
The Court examined the information on the applicant’s political activities in Iran and on his conversion to Christianity, assessing whether he will face a risk of ill treatment or a threat for his life, if he will be sent to Iran, bearing in mind the general situation there. The Court arrived to the conclusion that “the applicant has failed to substantiate that, if returned to Iran, he would face a real and concrete risk of being subjected to treatment contrary to Article 2 or 3 of the Convention. Consequently, his expulsion to Iran would not involve a violation of Article 2 or 3” (§ 42).
If the conclusion that his “political activities were vague and lacking in details” (§ 38) and that they cannot constitute a threat for the applicant at his return to Iran can be considered acceptable, the conclusion of the Court on his conversion cannot. On the latest, the Court considered that it is a private matter that the applicant can hide from the authorities and therefore escape the risk of ill treatment: “As regards the applicant’s conversion, the Court observes that the applicant expressly stated, before the domestic authorities, that he did not wish to invoke his religious affiliation as a ground for asylum, since he felt that this was a private matter. The Court notes that the applicant had the opportunity to raise the question of his conversion during the oral hearing before the Migration Court but chose not to. This stance ultimately changed when the expulsion order against him became enforceable. Moreover, the applicant has claimed that he converted to Christianity only after arrival in Sweden and he has kept his faith a private matter. Against this background, and apart from the possible publication of the applicant’s image in connection with broadcasted church services, the transmission of which to the Iranian authorities is merely speculative, the Court finds that there is nothing to indicate that the Iranian authorities are aware of his conversion. Consequently, the Court considers that the applicant would not face a risk of ill-treatment by the Iranian authorities on this ground” (§ 41).
The four judges of the Fifth Section who concluded that there is no violation of the Convention ignored what the dissenting Judges (Zupancic, Power-Forde and Lemens) pointed out: that the conversion to Christianity in Iran is illegal and punished in law with death, that in practice converts suffer intense pressure and human rights abuses, that the authorities do not offer any protection or redress in such cases, on the contrary, they participate to those abuses. They pointed out that “There can be no real doubt that conversion to Christianity constitutes a serious human rights issue for any Iranian living in Iran”.
The four judges also did not follow the case law of the CEDH. Previously, in similar cases (Z.N.S. v. Turkey, no 21896/08, 19 January 2010, M.B. and Others v. Turkey (n° 36009/08, 15 June 2010) the ECHR ruled that refusing to grant asylum to Iranian converts violates the Convention. The ECLJ intervened as a third party in the procedure and drafted written observations in R.B.G. and others v. Turkey and in M.B. and Others v. Turkey cases and in A.R.M. v. Bosnia and Herzegovina (application n° 5176/13).
As well, the judgment of 16 January 2014 contradicts the position of the Court of Justice of the European Union (Luxembourg EU Court). The Court of Justice of the European Union delivered a judgment on this issue in Bundesrepublik Deutschland v Y and Z case (C-71/11 and C-99/11), on the 5 September 2012, interpreting the European Directive 2004/83/EC of 29 April 2004 on the Status of Refugees. Importantly, the Court underlined that national authorities shall not require an asylum seeker to abandon public practice of religion to avoid a risk of persecution.
The ECLJ welcomes the referral of the case before the Grand Chamber and hope that it will follow its own case law and align itself on the case law of the Court of Justice of the European Union. The reality of the risk faced by Christians converted from Islam can not be underestimated.