CEDH · CASELAW;DECISIONS;ADMISSIBILITY;ENG — 21 juin 2005

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Costa , President ,   Mr   A.B. Baka ,   Mr   R. Türmen ,   Mr   K. Jungwiert ,   Mr   M. Ugrekhelidze ,   Mrs   A. Mularoni ,   Mrs   E. Fura-Sandström, judges , and Mrs S. Dollé , Section Registrar , Having regard to the above application lodged on 25 August 2004, Having regard to the interim measure indicated to the respondent Government under Rule 39 of the Rules of Court, Having regard to the partial decision of 14 September 2004, Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicants, Having deliberated, decides as follows: THE FACTS The applicants, Mrs Vasilina Matsiukhina and Mr Aliaksandr Matsiukhin, are nationals of Belarus who were born in 1973 and 1964. They were represented before the Court by Mr H. Bredberg, a lawyer practising in Stockholm. The respondent Government were represented by Ms   E.   Jagander, Ministry for Foreign Affairs. A.     The circumstances of the case The facts of the case, as submitted by the parties, may be summarised as follows. The applicants, a married couple, applied for asylum in Sweden on 28   May 2002. They claimed to have arrived in Sweden the same day. Individual interviews with the applicants were conducted by the Migration Board ( Migrationsverket ) on 3 June 2002 and 14 April 2003. The first applicant stated, inter alia , the following. In June 2001, after obtaining her law degree, she joined the Belarus Patriotic Youth Union (the “BPSN”), an organisation closely connected to President Lukashenko. At the same time, she was employed by the regional branch of the BPSN in Vitebsk, dealing with the documentation of the organisation of local branches. As from September 2001 she was also in charge of the economic activities of the regional organisation, which involved the examination of various contracts. She was employed on a probationary basis for two months and both she and her relatives were checked by the security services. She soon discovered that the BPSN engaged in illegal economic activities, including money laundering. Many Government officials were involved and large amounts of money were transferred to the accounts of President Lukashenko. Furthermore, medicine, food and clothes received by the BPSN from abroad as humanitarian aid were sold in ordinary shops rather than being distributed among those in need of the aid. After having been told by her superior that the matters were of no concern to her, she brought them to the attention of the GUVD ( Glavnoje upravlenije vnutrennych del ) in Minsk (“the Chief Administration for Internal Affairs of the Executive Committee of the City of Minsk”) on 19   November 2001. She also submitted copies of documents as evidence of the illegal activities. In December she started to receive threats, including death threats, by telephone. By a letter of 8   January 2002 she was informed by the GUVD that the investigation had been discontinued, as there was no indication of illegal activities. Convinced that no proper investigation had been made, she appealed against this decision to the public prosecutor's office in Minsk on 13 January. On 14 January 2002 the first applicant gave a speech before a large crowd at a public meeting organised by the BNF, an opposition party. She revealed details about the BPSN and its activities. She was thereafter summoned to appear before the District Court of the Frunze district in Minsk on 21 January. On that day she was given a decision by a court executor that she was asked to sign. The decision stated that she had been admonished and ordered to pay a fine for having spread anti-Government propaganda. She paid the fine but appealed against the decision on 28   January. By a letter of 11 February 2002 the District Court informed her that the appeal had been rejected. On 4 February 2002 the first applicant was dismissed from her job. She then had a nervous breakdown and was hospitalised. While she was in hospital, her husband received telephone calls from people who threatened to kill both of them. On 20 February she was summoned to the District Court where she was questioned by an interrogator. She was told that the illegal activities of the BPSN were being investigated and that she was an important witness in the case. Later she came to understand that the reason for the questioning was just to find out whether she had more information about the BPSN than she had already submitted. A further meeting was fixed for 25   February. She remained in Minsk, staying at a hotel, as she was afraid of returning to Vitebsk due to the threatening telephone calls. During the night of 20-21 February 2002, unknown men broke into her hotel room. They assaulted her, searched the room and then disappeared. Her injuries were examined at the department for forensic medicine the following day. Finding that she could not return to Vitebsk, she and her husband rented a flat in Minsk. At the meeting with the interrogator on 25 February, she had to sign documents to the effect that she was under an obligation to appear as a witness before any judicial instance in the case concerning the BPSN and that she was not allowed to leave the country. She also handed over her passport and was told that it would be returned to her after a copy of it had been made. The passport was not returned to her, however, and on 1 March 2002 she complained to the District Court that it had been illegally confiscated. The court replied on 8 April 2002 that it had been retained on lawful grounds. On 13 April 2002 two unknown men came to the flat in Minsk. They assaulted and threatened the first applicant, asked for documentation about the BPSN and questioned her whether she had more information about the union. She started to scream that, if they killed her, documents about the BPSN would be sent to the Russian and foreign media. The men then left, stating that they would come back. She was again examined at the department for forensic medicine the following day. Believing that she would be killed, she and her husband first moved to some friends' summer house in the Vitebsk area and then left the country. Her mother-in-law had been questioned about their whereabouts after their escape. The first applicant claimed that, if returned to Belarus, she would be killed by the authorities. In support of her application she submitted copies of a certificate of BPSN membership, an extract from an employment book, the report to the GUVD, the reply from the GUVD of 8 January 2002, the appeal to the public prosecutor, the speech given by her at the BNF meeting on 14   January 2002, a summons to appear before the District Court on 21   January 2002, the court executor's admonition of 21 January 2002, the court's notification of 11 February 2002 that her appeal had been rejected, her written undertaking of 25 February 2002, the court's notification of 8   April 2002 concerning the confiscation of her passport, and two forensic medical certificates. The first medical certificate, dated 21 February 2002, stated that the first applicant had sustained “light injuries” on her back and arms from being hit by a blunt object. The second certificate, dated 14 April 2002, stated that she had sustained internal bleeding, categorised as a “light injury”, due to a rape attempt the previous day. The second applicant stated essentially the same as his wife and added, inter alia , that his company, which sold shoes, had encountered problems when his wife had reported the illegal activities of the BPSN to the police. The tax authorities frequently appeared unannounced to check his bookkeeping and a whole consignment of shoes was confiscated. He had to close down his business and lost the licence to sell shoes. The telephone threats were directed at both him and his wife. He had a 17 year old son with whom he had not been in contact since leaving Belarus. On 12 September 2003 the Migration Board rejected the applicants' applications and ordered that they be expelled from Sweden. While acknowledging that the political situation in Belarus was authoritarian and that political dissidents had been arrested at meetings and demonstrations, it considered that the general conditions in Belarus did not constitute a ground for asylum. As regards the applicants' personal situation, the Board noted that the first applicant had continued to work at the BPSN despite the fact that she had discovered and reported illegal activities. She had not kept any copies of the documents which showed these activities. Further, there was no evidence that the authorities had failed to investigate the allegations made by the first applicant and they had given her an opportunity to appeal against the decisions. The forensic medical evidence did not show that she had sustained any serious injuries. Moreover, the second certificate stated that she had been subjected to a rape attempt, a fact that she had not mentioned to the Board. The Board further stated that, whether the applicants' story was credible or not, they could not be considered as refugees on the basis of the information they had given. In this connection, the Board found that, notwithstanding the first applicant's speech at the BNF meeting, they had not been politically active, that the discovery of evidence of corruption did not constitute a ground for asylum as such and that the first applicant had not exhausted domestic remedies in seeking protection from the domestic judicial authorities. Further considering that it had not been shown that the applicants, upon return, would be of such interest to the Belarusian authorities that they would risk the death penalty or torture or other inhuman or degrading treatment or punishment, the Board found that they were not entitled to a residence permit on any other ground either. The applicants appealed to the Aliens Appeals Board ( Utlännings-nämnden ), essentially maintaining what they had stated before the Migration Board. On 9 August 2004 the Aliens Appeals Board rejected the appeal, stating that it agreed with the assessment made by the Migration Board. Following the Court's indication on 2 September 2004, under Rule 39 of the Rules of Court, that it was desirable in the interests of the parties and the proper conduct of the proceedings before the Court not to deport the applicants to Belarus, the Migration Board, on the same day, decided to stay the enforcement of the decision to expel the applicants until further notice. COMPLAINT The applicants complained under Article 3 of the Convention that they would risk being subjected to inhuman or degrading treatment upon return to Belarus on account of having revealed corruption and illegal activities within organs of the State. THE LAW The applicants complained about their expulsion to Belarus. They invoked Article 3 of the Convention, which reads as follows: “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.” The respondent Government contended that there was no basis for the applicants' claims that they were at risk of being arrested and ill-treated by the Belarusian authorities on account of the first applicant's alleged disclosure of the existence of financial irregularities within the BPSN. At the Government's request, the Swedish Embassy in Moscow had engaged an attorney-at-law in Minsk to investigate the authenticity of some of the documents relied on by the applicants. The findings of the attorney were set out in a report, which was submitted to the Court. Based on these findings, the Government stated, inter alia , the following. The letter of 8 January 2002 from the GUVD had allegedly been signed by V.V.   Korabljev, a colonel of the militia and head of the GUVD in Minsk. However, no person by that name had been working as head of that authority at the relevant time. Moreover, the letter at issue had not been registered in the manner and with the number that outgoing documents issued by the GUVD in Minsk were usually recorded. In addition, the stamp of the letter was stated as belonging to the Centre for Information and Analysis, a specialised unit within the GUVD in Minsk that did not deal with reports by individual citizens. The summons to appear before the District Court on 21 January 2002 stated that it concerned a civil case, but involved several errors as it failed to indicate a case number, contained no information about the underlying judicial dispute and did not state in what capacity the first applicant had been summoned (e.g. as plaintiff, defendant or witness). Further, the summons had not been registered, as required, in the records of the District Court's outgoing documents. Moreover, the court had not examined, at the material time, any civil case to which the first applicant had been a party. The admonition of 21 January 2002, signed with the name L.Je. Mustafajeva, executor of the District Court, stated that the first applicant was ordered to pay a fine of 105,000 Belarusian rubels for “propaganda against the government”. However, the admonition in question did not leave the addressee time to take the requisite measures, as is the practice, but had allegedly been issued on the same day that the first applicant was required to appear in court and pay the fine. Further, under current Belarusian law, a fine may be imposed either as an administrative punishment for an administrative offence or as a punishment for a crime. However, the offence mentioned in the admonition does not exist as an offence or crime under either the Belarusian penal code or the Belarusian administrative code. The admonition in question further stated that, should the first applicant not report to the court, she might have to answer to an administrative charge for “contempt of court” pursuant to Article 166 of the Belarusian administrative code, for which the stipulated punishment is stated to be a fine of 1,005,000 rubels. However, the fine that may be imposed for the latter offence is 10 times the minimum wage. At the time, the minimum wage was 10,000 rubels. Consequently, the maximum fine that could be imposed amounted to 100,000 rubels. Moreover, the admonition had not been registered, as required, in the records of the District Court's outgoing documents. In fact, that court had not examined any administrative case involving the first applicant during the relevant period, nor had she been sentenced to pay a fine. Furthermore, no person with the name L.Je. Mustafajeva had been employed as an executor of that court at the time, nor was any such person working there today. The letter of 11 February 2002 from the District Court, allegedly signed by A.G. Savitj, chairman of the court, had not been registered in the court's records. It mentioned an opportunity to appeal, although, under the relevant Belarusian law, a decision to impose a fine issued by a district judge, as in this case, was not subject to appeal. Moreover, the court had not registered any complaint from the first applicant on 28 January 2002. Further, no person by the name of A.G. Savitj had been holding a post as chairman of the District Court of the Frunze District in Minsk at the relevant time, nor was any such person working there today. A person by the name of Anatolij Grigorjevitj Savitj was the chairman of the District Court of the Moscow district in Minsk. The first applicant's written undertaking of 25 February 2002 to appear as a witness in a case lacked the name and rank of the investigator who had received the document. It also failed to contain information by which the case could be identified. Under Belarusian law, an undertaking such as the one in issue is a coercive measure which may not be resorted to in relation to a witness, against whom no reporting obligations or other such measures may be applied. Furthermore, the undertaking had not been registered, as required, in the records of the Public Prosecutor's Office of the Frunze district in Minsk. The first applicant had not been involved as a witness in any criminal case that had been investigated by that office. The District Court's notification of 8 April 2002 concerning the confiscation of the first applicant's passport had allegedly been signed by A.G. Savitj who, as already noted, had not been holding a post at that court. The notification stated, with reference to Articles 67 and 146 of the Belarusian Code of Criminal Procedure, that the authority in charge of the preliminary investigation was entitled to seize a passport on a temporary basis. However, the references were incorrect. While Article 67 stipulated the safety measures that could be taken in relation to a “protected person” (such as a witness), Article 146 dealt with the procedure for the lodging of a complaint against a decision to commit a person to compulsory psychiatric care. In fact, the Belarusian Code of Criminal Procedure did not provide for the seizure of passports. In addition, the notification had not been registered among the court's outgoing letters and no complaint made by the first applicant on 1 March 2002 was to be found in the archives of the court. The extract from the first applicant's employment book noted that the first applicant had been employed on 27 August 2001 by the Vitebsk Regional Committee of the BPSN and that the employment had been ended in accordance with an agreement between the parties on 24 February 2002. It had been certified as corresponding to the original by a person named O.N. Tsybulskaja, deputy head of division, on 27 March 2002, i.e. a month after the termination of the first applicant's employment. The Government submitted that it was incomprehensible why and for what purpose the organisation had decided to certify a copy of an employment book belonging to a person who was no longer employed by the organisation. The forensic medical certificates of 21 February and 14 April 2002 had allegedly been signed by S.A. Parfjonov, a public official whose title indicated that he was an expert in forensic medicine. However, the certificates had not been drafted and issued in accordance with current practice and the references made in the first certificate to the applicable legal provisions were incorrect. Moreover, the certificates had not been registered, as required, in the records of the Belarusian Public Service of Forensic Medicine for outgoing documents. The service had not performed a forensic examination of the first applicant at the material time. Further, it was stated in the first certificate that she had been examined by a N.V. Romanjuk, an expert of forensic medicine. However, no person of that name worked as an expert of forensic medicine in the service during the relevant period. A person by the name of S.A. Parfjonov had been and still was employed by the service but his signature did not match the signature on the certificates relied on by the applicants. In sum, the Government contended that most of the documents invoked by the applicants in support of their claims were not genuine. In addition, they expressed strong doubts about the authenticity of the alleged extracts from the first applicant's employment book. In regard to her purported speech on 14 January 2002, the Government drew the Court's attention to the fact that the contents of the speech corresponded more or less entirely to that of a section labelled “the Belarusian Patriotic Union of Youth” that could be found in a report by the Human Rights Watch published in July 1999. That text was enclosed with the Government's observations. The Government asserted that there was reason to doubt that the speech was at all held, especially in view of the fact that it had been established that the applicants had submitted a number of false documents to the Swedish authorities and the Court and that, thus, serious doubts were raised as far as their general credibility was concerned. In the Government's opinion, the applicants' submissions concerning the first applicant's report to the GUVD, and the ensuing harassment suffered by both applicants as a result of it, lacked all credibility. The applicants submitted that all the findings obtained through the investigation conducted at the Government's request were incorrect and consisted of disinformation from the Belarusian authorities. They claimed that no attorney-at-law would be able to make the analysis presented in the Government's observations without having had good contacts within the Belarusian administration. The information and documents referred to were not public and could not be obtained from a public authority or a court. The applicants also found it remarkable that the Swedish immigration authorities had not called into question the credibility of the submissions made by them but had considered that their reasons for seeking asylum were not sufficient. The Court observes at the outset that Contracting States have the right, as a matter of well-established international law and subject to their treaty obligations, including the Convention, to control the entry, residence and expulsion of aliens. However, the expulsion of an alien by a Contracting State may give rise to an issue under Article 3, and hence engage the responsibility of that State under the Convention, where substantial grounds have been shown for believing that the person in question, if deported, would face a real risk of being subjected to treatment contrary to Article   3 in the receiving country. In these circumstances, Article 3 implies the obligation not to deport that person (see, among other authorities, H.L.R. v. France , judgment of 29 April 1997, Reports of Judgments and Decisions 1997-III, p. 757, §§ 33­34). While aware of the occurence of reports of human rights violations in Belarus, the Court has to establish whether the applicants' personal situation is such that their return to Belarus would contravene Article 3 of the Convention. In this respect, it is of importance to assess the general credibility of the statements made by them before the Swedish authorities and during the present proceedings. The Court notes that the applicants have submitted several documents in support of their claims, to the Swedish authorities as well as to the Court. In its decision of 12 September 2003, the Migration Board did not determine whether the applicants' story or the documents submitted were credible or not, but found that, in any event, they could not be considered as refugees on the basis of the information they had given. The Aliens Appeals Board, on 9 August 2004, agreed with that assessment. In their observations, the Government have claimed that most of the documents invoked by the applicants are not genuine. They have given a very detailed account of alleged inaccuracies in the content of those documents and in other related aspects. The applicants have not answered these allegations, except to state that the findings consisted of disinformation from the Belarusian authorities. The Court acknowledges that, due to the special situation in which asylum seekers often find themselves, it is frequently necessary to give them the benefit of the doubt when it comes to assessing the credibility of their statements and the documents submitted in support thereof. However, when, as in the present case, information is presented which gives strong reasons to question the veracity of an asylum seeker's submissions, the individual must provide a satisfactory explanation for the alleged inaccuracies in those submissions. As to the specific information presented by the Government in the case at hand, the Court notes that several documents submitted by the applicants allegedly have not been registered with the relevant Belarusian authorities and bear the signatures of persons not employed by the authorities indicated in the documents. Further, in several respects the documents appear to contain incorrect references to legal provisions and practice and to designate authorities not competent to deal with the matters in question. Moreover, according to the findings of the investigation made, the first applicant had not been subjected to the proceedings, sanctions or medical examinations to which the documents refer. These are very strong indications that the documents submitted in support of the present application are falsifications, and the Court finds it remarkable that the applicants have chosen not to address the specific points made by the Government. Their general claim that the Government's submissions consist of disinformation emanating from the Belarusian authorities is insufficient to cast doubt on the information provided by the Government and cannot be considered to be an adequate explanation for the numerous inaccuracies indicated in those submissions. Having regard to the above, the Court considers that the veracity of the documents invoked by the applicants must be seriously called into question. As a consequence, the statements made in support of their claims under Article 3 of the Convention cannot be considered credible. For these reasons, the Court finds that it has not been established that there are substantial grounds for believing that the applicants face a real risk of being subjected to treatment contrary to Article 3 if returned to Belarus. It follows that the application of Article 29 § 3 of the Convention to the proceedings in the present case must be discontinued and the case rejected as being manifestly ill ‑ founded, pursuant to Article 35 §§ 3 and 4 of the Convention. For these reasons, the Court unanimously Declares the application inadmissible.   S. Dollé   J.-P. Costa   Registrar   President