ECtHR, 9 January 2018, X v. Sweden, Appl. No. 36417/16

With its judgment in the case X v. Sweden, the Court of Strasbourg deals with the issue of national security and human rights, assessing, in particular, the compatibility with the European Convention of Human Rights of the decision adopted by Sweden to expel a suspected terrorist to his home country, Morocco. The Court found that, in the light of the peculiar circumstances of the case, there are no sufficient elements to exclude that the applicant, if expelled, would face the risk of being subjected to torture or inhuman or degrading treatment prohibited under Article 3 of the Convention. For this reason, under Rule 39 of its Rules of Court, the Court also indicates to Sweden the interim measure not to proceed with the enforcement of the expulsion.

Prohibition of torture (Article 3 ECHR) – Expulsion of aliens – Terrorism and national security – Interim measure (Rule 39) – Burden of proof.

1. Introduction

With its judgment delivered on 9 January 2018 (X v. Sweden, Appl. No. 36417/16), the European Court of Human Rights (“ECtHR”) dealt with the delicate issue of terrorism and human rights, engaging with the often problematic balance between the State’s power to take measures in order to guarantee its national security on the one hand, and the protection of fundamental rights of the person affected by those measures on the other.

The ECtHR had to judge, in particular, whether the expulsion of an individual considered to be a terrorist by the Swedish security authorities was compatible with his rights under the European Convention of Human Rights (“the Convention”). In the light of the specific circumstances of the case, the ECtHR ruled that the expulsion of the applicant to Morocco – his home country – would have resulted in the risk of being subjected to torture and ill-treatment prohibited under Article 3 of the Convention. For this reason, moreover, the Court indicated to Sweden – as an interim measure pursuant to Rule 39 of its Rules of Court – not to proceed with the enforcement of the expulsion.

With this judgment, the Court firmly confirms that the protection guaranteed by Article 3 of the Convention admits no derogations, even in case of terrorism. States have and maintain the sovereign right and duty to protect their own citizens from terrorist violence and other threats; however, the protection from torture represents an essential value of our democratic societies and thus, under certain conditions, must prevail even in the event of emergencies and potential threats to the national security.

2. Facts and circumstances of the case

The applicant, Mr. X – who requested and was granted anonymity by the Court – is a Moroccan national, living in Sweden with a permanent residence permit obtained in 2007. In 2016, the Swedish Security Service (Säkerhetspolisen) applied to the Migration Agency (Migrationsverket), requesting the applicant’s expulsion on grounds of national security. According to the Security Service’s investigations and findings, the applicant was considered as being involved in terrorist activities.

During the examination of his case before the Migration Agency, Mr. X applied for asylum, seeking international protection on the basis of the allegations of the Swedish Security Service, which labelled him as a terrorist. According to the applicant, his expulsion to Morocco would have resulted in the risk of being subjected to torture, long-term and arbitrary detention, ill-treatment and other violent and widespread practices used by Moroccan authorities with regard to suspected terrorists.

In the view of the applicant’s possible expulsion to his home country, the Migration Agency analysed the human rights situation in Morocco, considering it as satisfactory and sufficiently safe for him. In the Agency’s view, although international sources still reported use of violence and torture in terror-related cases, the overall situation could be reasonably considered as significantly improved, as the recently-introduced Moroccan legislation considers torture as illegal and prohibits the use of violent practices by police in cases involving suspected terrorists.

With regard to the applicant’s personal circumstances, the Migration Agency considered his allegations as contradictory and not credible, sharing the Security Service’s assessment of his profile and thus considering him as a potential threat for the national security. The Agency, therefore, rejected the applicant’s request for asylum, revoked his permanent residence permit and ordered his expulsion to Morocco, together with the issue of a lifelong ban on returning to Sweden.

Mr. X appealed to the Migration Court of Appeal (Migrationsöverdomstolen), insisting on the risks of being subjected to torture in case of his expulsion to Morocco. The Court of Appeal, however, found no satisfactory evidence that the applicant was of interest to the Moroccan authorities and that they would have made use of torture or violence in his regard. The Migration Agency’s decision was thus upheld in full with the consideration of the applicant as an individual able to commit or participate in committing a terrorist offence.

3. Interim measures and expulsion cases

Following a first examination of the case, the ECtHR made use of the instrument provided under Rule 39 of its Rules of Court and indicated to Sweden, as interim measure^[1], to suspend the enforcement of the applicant’s expulsion to Morocco. In the Court’s opinion, the applicant, if expelled, would face a risk of being subjected to treatment contrary to the Convention.

With this decision, the ECtHR confirms its practice concerning interim measures, which are typically granted in cases of expulsion and extradition of aliens facing a real risk of being subjected to serious harm in the country of destination. In the vast majority of the cases, the instrument provided under Rule 39 is used by the Court with regard to risks of violation of Article 2 (right to life) and, as in this case, Article 3 of the Convention (prohibition of torture or inhuman or degrading treatment).

In particular, the case-law concerning the use of interim measures in cases engaging Article 3 of the Convention shows that, in recent years, Sweden has been ordered not to proceed with expulsions on several occasions. More specifically, Swedish expulsion procedures have been blocked by the Court of Strasbourg in cases of risk of persecution for political, ethnic or religious reasons[2], risk of ill-treatment related to sexual orientation[3], and in cases of risk of being subjected to genital mutilation[4] and risk of social exclusion[5].

Interestingly, moreover, the official statistics of the ECtHR show that, in the cases before the judges in Strasbourg, Sweden is one of the States with the highest number of requests of interim measures made by the applicants. Indeed, according to the available statistical data for the years 2014, 2015 and 2016^[6], among EU Member States, Sweden is the fourth State in terms of Rule 39 requests (209), following the Netherlands (320), France (410) and the United Kingdom (1467)^[7].

The ECtHR’s practice, however, is rather restrictive, as it tends to grant the interim measures only in exceptional and duly justified cases^[8]. The X v. Sweden case is one of those: here, the Court applied Rule 39 in favour of the applicant, considering that his expulsion to Morocco, if implemented, would have exposed him to a serious risk of treatment contrary to Article 3 of the Convention.

4. Judgment and reasoning of the Court

The ECtHR, first of all, acknowledges the seriousness of the question of terrorism, which constitutes “in itself a grave threat to human rights” and considers it as one of today’s most challenging issues for European States, which, from their parts, have the right and duty to protect their own citizens and to fight the threats to their national security^[9]. In the light of the duty to protect their populations, States may resort to the expulsion of individuals as a security measure, which, in itself, does not constitute a conduct contrary to human rights.

Issues under Article 3 of the Convention, however, may rise when there are substantial grounds to believe – or there are no sufficient elements to exclude – that the person concerned, if concretely expelled, would face a real risk of being subjected to torture or other inhuman or degrading treatment. Such risk, according to the Court’s well-established case-law, has to be evaluated taking into account both the general situation of the country of destination of the expulsion and the applicant’s personal circumstances^[10].

The element of the risk, therefore, is crucial in these cases: if the existence of a real risk is satisfactorily proved, Article 3 of the Convention, as dynamically interpreted by the ECtHR, can block the State’s power to expel an individual. To this end, it is for the applicant to demonstrate that there is a real (not theoretical), personal (not general), and objective (not imaginary) risk of being subjected to a treatment contrary to Article 3 of the Convention in case of his/her removal to the country of destination.

However, in expulsion-related cases, if it is true that the burden of proof is on the applicant, the ECtHR tends to lighten it and to make easier for the applicant to meet it. On the one hand, the Court itself recognises that “a certain degree of speculation is inherent in the preventive purpose of Article 3”, also affirming that the applicant is not always required to “provide clear proof” of the risks he would encounter in the case of his expulsion^[11]. On the other hand, moreover, the Court takes into careful consideration and often gives credit to various international sources, which may help to prove the existence of a risk of treatment contrary to Article 3 in the country of destination of the expulsion. In this way, in particular, documents such as thematic studies, human rights monitoring reports, or country situational analyses realised by international organisations or NGOs often play a decisive role in expulsion-related cases before the ECtHR.

In X v. Sweden as well, the ECtHR, following this modus operandi and taking into account the country information on Morocco realised by the United Nations and the US Department of State, considers the general situation as not per se incompatible with international human rights standards, acknowledging in fact that, in general terms, the African country “is making efforts” in order to comply with them^[12]. The overall situation of the country alone, therefore, is not sufficient to establish the existence of a real risk of treatment contrary to Article 3 of the Convention.

As to the applicant’s personal situation, the Court considers that he is a suspected terrorist according to the Swedish Security Service and, given that the Swedish and the Moroccan authorities have been exchanging information about him, it cannot be excluded that the applicant, if expelled, would be subjected to the risk of torture and arbitrary detention in his home country. Several reliable international sources indeed confirm that in Morocco, despite the improvements in the overall human rights situation, the use of violence is still frequent and widespread in terror-related cases. Given these circumstances, the judges conclude in the sense of the possible existence of a potential risk of treatment prohibited by the Convention.

For the ECtHR, in other terms, the doubt as to the risk of treatment contrary to Article 3 is necessary but sufficient in order to stop the expulsion. Therefore, the burden of proof is overturned here: it is for the State to dispel doubts about the risks for the applicant of being subjected to ill-treatment contrary to Article 3 of the Convention in case of his expulsion. In this case, in the Court’s opinion, Sweden has failed to do so, not providing sufficiently assurances in order to eliminate – or, at least, to substantially reduce – the doubts raised by the applicant with regard to the ill-treatment he would suffer from once returned to his home country.

5. Comments

With its judgment in X v. Sweden, the ECtHR reiterates the absolute character of Article 3 of the Convention, confirming and enhancing its preventive and protective purpose in expulsion-related cases. The ECtHR highlights that this norm represents “one of the most fundamental values of democratic societies”, pointing out that “even in the most difficult circumstances, such as the fight against terrorism and organised crime, the Convention prohibits in absolute terms torture and inhuman or degrading treatment or punishment”^[13].

With a human rights-oriented approach, the Court aligns with its previous case-law on expulsion cases, pointing out that, once the applicant has sufficiently demonstrated – also with the support of international sources and documents – the existence of a real risk of treatment contrary to Article 3 of the Convention, the State has to refrain from expelling him. Therefore, even in cases of emergency, such as potential terrorism threats, the protection of the fundamental rights enshrined in Article 3 must prevail.

F.L.G.

6. Suggested reading

To consult the arrest: ECtHR, 9 January 2018, X v. Sweden, Appl. No. 36417/16.

ECtHR, Terrorism and the European Convention on Human Rights, ECtHR Press Unit, Factsheet, Strasbourg, December 2017.

T. Maheshe, « Infractions terroristes et soutien aux activités terroristes : harmonisation par la C.J.U.E. de la notion d’agissements contraires aux buts et aux principes des Nations Unies », Newsletter EDEM, avril 2017.

M. Scheinin, Terrorism and human rights, Edward Elgar Publishing, 2013.

United Nations High Commissioner for Human Rights, Human Rights, Terrorism and Counter-terrorism, Fact Sheet No. 32, Geneva, 2008.

To cite this note: F.L. Gatta, « ECtHR, 9 January 2018, X v. Sweden, Appl. No. 36417/16. National security and expulsion of a suspected terrorist ; protection of human rights prevails over security », Cahiers de l’EDEM, janvier 2018.

^{Photo de Nicoleon — Travail personnel, CC BY-SA 4.0, https://commons.wikimedia.org/w/index.php?curid=39410945}