Judgment (Merits) of Court (Fifth Section), February 26, 2015

JudgeNORBERG N.
Resolution DateFebruary 26, 2015
Issuing OrganizationCourt (Fifth Section)

   FIFTH SECTION      CASE OF M.T. v. SWEDEN (Application no. 1412/12)      JUDGMENT    STRASBOURG 26 February 2015  This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision.In the case of M.T. v. Sweden,The European Court of Human Rights (Fifth Section), sitting as a Chamber composed of:              Mark Villiger, President,
              Angelika Nußberger,
              Ganna Yudkivska,
              Vincent A. De Gaetano,
              André Potocki,
              Helena Jäderblom,
              Aleš Pejchal, judges,
and Claudia Westerdiek, Section Registrar,Having deliberated in private on 27 January 2015,Delivers the following judgment, which was adopted on that date:

PROCEDURE

1. The case originated in an application (no. 1412/12) against the Kingdom of Sweden lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Kyrgyz national, Mr M.T. (“the applicant”), on 23 December 2011. The President of the Section acceded to the applicant’s request not to have his name disclosed (Rule 47 § 4 of the Rules of Court).

2. The applicant, who had been granted legal aid, was represented by Ms N. Norberg, a lawyer practising in Stockholm. The Swedish Government (“the Government”) were represented by their Agent, Mr A. Rönquist, of the Ministry for Foreign Affairs.

3. The applicant alleged that his rights under Article 3 of the Convention would be violated if he were expelled to Kyrgyzstan, since he would not receive adequate medical treatment for his illness there and thus would die within a few weeks.

4. On 18 January 2012 the acting President of the Section to which the case had been allocated decided to apply Rule 39 of the Rules of Court, indicating to the Government that the applicant should not be expelled to Kyrgyzstan for the duration of the proceedings before the Court.

5. On the same date, 18 January 2012, the application was communicated to the Government.

THE FACTS

I.  THE CIRCUMSTANCES OF THE CASE

6. The applicant was born in 1985 and is currently in Sweden.

A.  Background and proceedings before the national authorities

7. In December 2009 the applicant arrived in Sweden and applied for asylum and a residence permit. Before the Migration Board (Migrationsverket), he submitted essentially the following. He is an ethnic Uyghur from Bishkek, Kyrgyzstan. He had run a business in his home country and had bought goods from his business partner, also an ethnic Uyghur, in China. In August 2009 the business partner had been arrested and since he had been in the possession of a receipt from the applicant, they had both been indicted on suspicion of financially supporting the Uyghur disturbances in China. In September 2009 the applicant had been arrested by the Kyrgyz police. His health had deteriorated while he was in custody and, after his release, he had been hospitalised because of his kidney problems. The doctors had informed him that he needed to have blood dialysis but that there was a two-year waiting list. After having been pressured by the authorities, the doctors had informed the applicant that he would not receive any blood dialysis. Moreover, his family had informed him that the police had come to his house looking for him several times after he had left the country. He suffered from chronic kidney failure and was in need of dialysis three times per week.

8. The Board held a supplementary interview with the applicant in June 2010 where he claimed that, during his detention, the Kyrgyz police had taken his passport, forced him to sign a travel ban and had also ill-treated him. He had been summoned to appear in court a few times and, after the second summons, he had left the country. He had received written summonses but he had not brought them with him to Sweden and he could not contact his family since he feared their telephone was tapped. The applicant further believed that the Chinese authorities had contacted the Kyrgyz authorities and that for this reason he had been refused medical treatment. However, he also claimed that he had been refused treatment already in the spring of 2009, before being called by the police.

9. On 17 June 2010, the Migration Board rejected the application. It first noted that the applicant had failed to submit any written evidence in support of his claims. It further found it noteworthy that central parts of the applicant’s story had only been provided at the supplementary interview and not at the initial interview or in written submissions. It therefore considered that he had escalated the threat against him during the asylum proceedings. The Board further noted that the applicant had submitted contradictory information as to when he had been denied health care. First he had stated that he had been refused dialysis after his detention in the autumn of 2009 while, during the supplementary interview, he had stated that he had been refused treatment already in the spring of

2009.In any event, the Board observed that there had been a regime change in Kyrgyzstan since the applicant had left the country and that there was nothing to indicate that the present regime would have any specific interest in him. Thus, the Board concluded that the applicant was not in need of international protection.

10. As concerned the applicant’s health, the Board noted that the applicant had submitted a medical certificate according to which he suffered from chronic kidney failure secondary to chronic glomerulonephritis and received blood dialysis three times per week. Without the dialysis he would die within two to three weeks. The Board found that, according to the applicant’s own submissions, blood dialysis was available in Kyrgyzstan and, since he had not been found credible, he had also failed to substantiate that he would be denied proper treatment upon return. Consequently, he could not be granted a residence permit and was to be expelled from Sweden.

11. The applicant appealed to the Migration Court (Migrationsdomstolen), maintaining his claims and adding that he had not given contradictory information about the refusal to treat him in Kyrgyzstan. He had been diagnosed during the spring of 2009 and then been informed about the two to three years’ waiting time. However, it was only after his arrest in September 2009 that the doctors told him that he would not receive any dialysis treatment at all. As concerned the regime change, there was no indication that the situation had improved for the Uyghur people. He further submitted new medical certificates confirming his illness and need for treatment.

12. The Migration Court decided to hold an oral hearing during which the applicant added, inter alia, the following. He had been questioned by the police twice. The first time, in September 2009, the police had asked him whether he financially supported the Uyghur disturbances in China and they had beaten him all over his body, including on the kidneys. When he had lost consciousness, the police had become scared and had released him. During the second questioning, the police had confiscated his passport and imposed a travel ban on him. He had later been summoned to court but had not attended. Instead, he had decided to leave the country and had paid a smuggler to help him. After arriving in Sweden, he had been in contact via telephone and internet with friends and family in Kyrgyzstan, who had informed him that the Kyrgyz authorities had been to his house looking for him and that he had received further summonses. In relation to his illness, he claimed that the Chinese would keep searching for him and that he would therefore not receive any treatment in his home country. He also submitted an extract from his Kyrgyz medical record which he had received when he was released from hospital in November 2009 and which he had brought with him to Sweden.

13. On 13 July 2011, the Migration Court rejected the appeal. It noted that the applicant had failed to substantiate his identity but accepted that he came from Kyrgyzstan. It further observed that he had not submitted any written evidence in support of his alleged need for protection for which reason his credibility was decisive for the outcome. However, the court considered that the applicant’s submissions were far-fetched, lacking in detail and that they contained contradictory information. For instance, as concerned the applicant’s submissions that the Chinese authorities suspected him of sponsoring the Uyghur disturbances in China, the court found this improbable since the applicant had had a clear business relationship with the person in China over several years. Moreover, he had submitted contradictory information as to when he had been refused medical treatment and how many times he had been summoned to court. Therefore, the court concluded that the applicant’s submissions were not credible and that he had failed to substantiate that he would be at risk of persecution upon return.

14. As to the applicant’s health, the court noted that it was undisputed that he suffered from chronic kidney failure and that he was in need of regular blood dialysis and medication to survive. Without the dialysis, he would die within a couple of weeks and, apart from regular treatment, the only other solution was a kidney transplant. His state of health was consequently extremely serious. Moreover, the court observed that it was clear that blood dialysis was available in Kyrgyzstan while, according to the applicant, kidney transplants were not carried out. According to the applicant’s own submissions, in the spring of 2009 he had been placed on a waiting list for dialysis and the waiting time had been two to three years. After having been arrested in September 2009, his name had allegedly been removed from the waiting list and he had been refused treatment. However, the court noted that...

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