EGMR

[...]

51. The Court reiterates that Contracting States have the right as a matter of international law and subject to their treaty obligations, including the Convention, to control the entry, residence and expulsion of aliens (Üner v. the Netherlands [GC], no. 46410/99, § 54, ECHR 2006-XII). However, expulsion 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 concerned, if deported, faces a real risk of being subjected to treatment contrary to Article 3. In such a case, Article 3 implies an obligation not to deport the person in question to that country (Saadi v. Italy [GC], no. 37201/06, § 125, ECHR 2008-...).

52. Whilst being aware of the reports of serious human rights violations in Afghanistan, as set out above, the Court does not find them to be of such a nature as to show, on their own, that there would be a violation of the Convention if the applicant were to return to that country. The Court thus has to establish whether the applicant's personal situation is such that her return to Afghanistan would contravene Article 3 of the Convention. [...]

55. The Court firstly observes that women are at particular risk of ill-treatment in Afghanistan if perceived as not conforming to the gender roles ascribed to them by society, tradition and even the legal system. The UNHCR thus observed that Afghan women, who have adopted a less culturally conservative lifestyle, such as those returning from exile in Iran or Europe, continue to be perceived as transgressing entrenched social and religious norms and may, as a result, be subjected to domestic violence and other forms of punishment ranging from isolation and stigmatisation to honour crimes for those accused of bringing shame to their families, communities or tribes. Actual or perceived transgressions of the social behavioural code include not only social behaviour in the context of a family or a community, but also sexual orientation, the pursuit of a professional career, and mere disagreements as to the way family life is conducted.

56. The Court notes in this respect that, albeit not legally, the applicant has resided in Sweden since 13 August 2004. The Court notes that already for that reason she may be perceived as not conforming to the gender roles ascribed to her by Afghan society, tradition and legal system. More importantly, however, in Sweden in vain she attempted to divorce her husband in 2008 and she has expressed a clear intention of not resuming the marriage. The Court points out that in cases like the one before it, the expression of an intention to divorce could be motivated by previous refusals by the authorities to grant asylum on the motive originally submitted. Thus, it must be expected that an applicant can demonstrate convincingly that the intention is real and genuine. The demand on the applicant may bear some resemblances with cases in which an asylum seeker in a receiving county has converted to Christianity from Islam and allege that the authorities in the Islamic home country have knowledge thereof and that this may result in serious negative life-threatening repercussions upon return (see, for example, mutatis mutandis, Reza Mohammasi v. the Netherlands (dec.), no. 5140/06, 1 June 2006 and Razaghi v. Sweden (dec.), no. 64599/01, 11 March 2003). In the present case the applicant separated from her husband X in June 2005, approximately one year after the spouses had entered Sweden, and while the appeal against the Migration Board's first refusal of 29 March 2005 was pending before the Migration Board. It is not in dispute that she only saw her husband once thereafter and it is a proven fact that she tried in vain to divorce him in 2008. In these circumstances the Court finds that the applicant has demonstrated a real and genuine intention of not living with her husband. [...]

57. The applicant is still formally married to X. He informed the District Court on 17 July 2008 that he opposed her wish to divorce. Thus, if the spouses are deported to Afghanistan, separately or together, X may decide to resume their married life together against the applicant's wish. The Court points out in this connection, for example, the Shiite Personal Status Law that was passed by Parliament and signed by the President in April 2009 which, although yet to be implemented, requires, inter alia, women to comply with their husbands' sexual requests and to obtain permission to leave the home, except in emergencies. It also notes the gloomy figures indicating that currently up to 80% of Afghan women are affected by domestic violence (see paragraph 34). Moreover, according to the Women's Protection and Development Commissioner of the Afghanistan Independent Human Rights Commission (see paragraph 37) the authorities see violence against women as legitimate, so they do not prosecute in such cases. In the vast majority of cases women will not seek help because of their fears of police abuse or corruption, or their fears of retaliation by perpetrators of violence. Low social status and social stigmas deter women from going against their families to pursue justice, particularly in cases of domestic abuse. For a woman even to approach the police or courts requires her to overcome the public opprobrium affecting women who leave their houses without a male guardian, let alone women who seek protection from public authorities.

58. The Court points out that there are no specific circumstances in the present case substantiating that the applicant will be subjected to such treatment by X, but the Court cannot ignore the general risk indicated by statistic and international reports.

59. The applicant maintained that she was also at risk of being persecuted, and even being sentenced to death, because she had an extramarital relationship. The Court observes, however, that the applicant failed to submit any relevant and detailed information thereon to the Swedish authorities during the domestic proceedings and that subsequently she has not even tried to explain why she failed to do so. Nevertheless, should X perceive the applicant's filing for divorce or other actions as an indication of an extramarital relationship, the Court notes that, according to the US State Department Human Rights Report on Afghanistan, (see paragraph 35) “adultery is defined in the Penal Code and designated a crime; premarital sex is not designated a crime, but local officials often considered it a "moral" offense”. Moreover, the “local officials occasionally imprisoned women at the request of family members for opposing the family's choice of a marriage partner or being charged with adultery or bigamy. Women also faced bigamy charges from husbands who had deserted them and then reappeared after the woman had remarried. Local officials imprisoned women in place of a family member who had committed a crime but could not be located. Some women resided in detention facilities because they had run away from home due to domestic violence or the prospect of forced marriage”. Furthermore, an IRIN News article dated 16 July 2008 maintained that “in Afghanistan, sexual relations between a man and a woman outside marriage are considered a serious crime and offenders can face death penalty and/or a lengthy prison sentence, depending on their marital status and other circumstances.”

60. Should the applicant succeed, as she intends, in living separated from her husband in Afghanistan, the Court notes the statement by the UNHCR (see paragraph 34) that “unaccompanied women or women lacking a male “tutor” continued to face limitations on conducting a normal social life. They include divorced women, unmarried women who are not virgins, and women whose engagements to be married have been broken. Unless they marry, which is very difficult given the social stigma associated with these women, social rejection and discrimination continue to be the norm. Many Afghan women are prevented from leaving the family compound without a burqa and a male companion, who has to be a husband or a close relative. Women without male support and protection generally lack the means of survival, given the social restrictions on women living alone, including the limitations on their freedom of movement. This is reflected in the absence of solutions available to the few women able to access domestic violence shelters. Unable to live independently, they face years of quasidetention, prompting many to return to abusive family situations. The results of such “reconciliation” are generally not monitored and abuse or honour crimes committed upon return are often done with impunity.”

61. The Government contended that the applicant's claim that her family had rejected her and that she had no social network or male protection in her home country was unsubstantiated. The Court notes, however, that although there are divergences as to whether the applicant's last contact with her family was in the summer of 2005 or in October 2005, no information has been presented which gives strong reasons to question the veracity of her submissions that she has had no contact with her family for almost five years, which does support her claim that she no longer has a social network or adequate protection in Afghanistan.

62. Having regard to all of the above, in the special circumstances of the present case, the Court finds that there are substantial grounds for believing that if deported to Afghanistan, the applicant faces various cumulative risks of reprisals which fall under Article 3 of the Convention from her husband X, his family, her own family and from the Afghan society. Accordingly, the Court finds that the implementation of the deportation order against the applicant would give rise to a violation of Article 3 of the Convention. [...]

FOR THESE REASONS, THE COURT UNANIMOUSLY

1. Declares the application admissible;

2. Holds that the applicant's deportation to Afghanistan would be in violation of Article 3 of the Convention;

3. Dismisses the applicant's claim for non-pecuniary damage. [...]