DISSENTING OPINION OF JUDGE POWER-FORDE

I voted against the finding of no violation of Articles 2 and 3 in this case. My assessment of the risk of ill-treatment which the applicants would face, if deported, relates, primarily, to the first, second and fifth—all of whom are women—and to the sixth applicant who is a 13 year old girl (hereinafter “the applicants”). [5] The first applicant and her daughters left Yemen and have been in Sweden since 2006. They claim to have escaped from X – a violent man – who is the husband of the first applicant and the father of her children. The first applicant ’ s oldest daughter (the second applicant) claims to have been forcibly married at the age of 14 and to have suffered and fears suffering ongoing violence at the hands of her spouse . Having failed in her courageous efforts to prevent her second daughter (the fifth applicant) from being forcibly married at the age of 12, the first applicant fled Yemen with this child and sought refuge in Sweden . She and the other applicants claim that they will suffer persecution as victims of so called ‘ honour crimes ’ , if returned to Yemen , particularly, having failed to honour and respect ‘ cultural ’ principles within that patriarchal and fundamentalist society.

The Court frequently affirms that domestic authorities, having had the benefit of direct contact with all persons concerned, are best placed to assess qu estions of credibility. It is significant for me – as it was for the dissenting judge before the Migration Court of Appeal – that the Board which met and interviewed the first applicant (an illiterate and traumatised woman) and the fifth applicant (then a 12 year old child), did not question their credibility or the overall authenticity of their history. In such circumstances, I see no convincing reason for this Court to do so and I have voted on the assumption that the applicants ’ account of gender based violence and forced child marriage is a true one. Furthermore, their history is wholly consistent with the independent research findings on child marriage and gender-based violence in Yemen as contained in such reports as the 2011 Human Rights Watch: “ How Come You Allow Little Girls to Get Married ?”

Assuming then the credibility of their story, two questions arise. Is gender-based violence, whether in the form of bodily assault or the physical and psychological violence inherent in a child or young girl being forcibly married, sufficient to reach the minimum standard required under Article 3 in circumstances where these practices form part of a third country ’ s ‘ traditions ’ ? If so, have the applicants established a real risk of being subjected to such treatment if returned to Yemen ?

In Opuz v. Turkey , (no. 33401/02, ECHR 2009) the Court made four important findings which, to my mind, are relevant to the instant case. The Court accepted that victims of domestic violence fall within a group of “vulnerable individuals” entitled to State protection (§ 66) . It further confirmed that physical violence and psychological pressure of the type that occurs within domestic abuse amounts to ‘ ill-treatment ’ wi thin the meaning of Article 3. Based on the authorities ’ failures, in that case, to take protective measures in the form of effective deterrence against serious breaches of the applicant ’ s personal integrity by her husband, the Court in Opuz held, unanimously, that Article 3 of the Convention had been breached. Finally, having regard to the independent research evidence available, the Court accepted that domestic violence such as occurred in that case “may be regarded as gender-based violence which is a form of discrimi nation against women” (§ 200).

These findings apply with equal force to the instant case. The fact that the gender based violence occurs in Yemen in no way diminishes the relevance or applicability of the Opuz principles. These women fall within a group of “vulnerable individuals” entitled to State protection. Such protection is not only unavailable in their home country; it is no t even considered necessary. The beating of women, their forced isolation or imprisonment and forced early marriage ar e not addressed in Yemeni law. Marital r ape is not a criminal offence. Violence against women and children is considered ‘ a family affair ’ and there is no minimum age for marriage. [6] The violence inflicted upon the first applicant, in the form of frequent beatings, burning and threatened assaults with a knife, [7] is similar to the violence described in Opuz and, consequently, must also be considered to constitute ‘ ill-treatment ’ within the meaning of Article 3. There is compelling evidence that the Yemeni authorities fail to take protective measures in the form of effective deterrence against domestic violence and child marriage. [8] There is nothing to suggest that this situation is likely to change upon the applicants ’ return to that country.

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 tr eatment 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 ).

Objectively, the policies, practices and laws of Yemen demonstrate that systemic and structural discrimination in the form of gender-based violence exists in that country and that breaches of the most fundamental human rights of women and girls are common. [9] To my mind and in the light of their credible history, t he subjective test has also been satisfied by these applicants. That the real risk of ill treatment occurs in a country whose ‘ traditions ’ endorse such practices against women in no way diminishes the fact that domestic and gender base d violence violates Article 3.

The Migration Board rejected the women ’ s application for protection against honour related crimes, forced marriage and/or domestic violence on the basis that the family ’ s problems were related to ‘ financial ma tters ’ (§16 of the Judgment). In essence, it found that both the second and, if necessary, the fifth applicant could trade their way out of ‘ any problems that mi ght arise ’ (§15). The fifth applicant could pay her father the equivalent of a potential dowry to avoid being forcibly married and the second could divorce and reimburse her husband for the ‘ wasted dowry ’ he had paid for her at the time of her forced marr iage. The Migration Court , which refused to conduct a hearing, also considered that the applicants ’ reasons for protection mainly concerned problems within ‘ the personal sphere caused, inter alia , by the country ’ s traditions ’ (§21). It affirmed that before international protection could be considered for problems of violence and reprisals within the family, all avenues of mediation and protection by the national authorities should be tried (§21).

The rationale offered by the domestic authorities in refusing the applicants ’ claims for protec tion is not at all convincing. With respect, it displays a remarkable lack of insight into the reality of life for many women in Yemen —and for th ese applicants, in particular. Furthermore, the protection of a person ’ s fundamental human rights cannot be redu ced to a question of currency. The right to self-determination, to respect for one ’ s bodily integrity and the right not to be ill treated are not comm odities which can be ‘ traded ’ . One should not have to pay to be left alone. The applicants ’ problems ‘ within the personal sphere ’ that are caused by their ‘ country ’ s traditions ’ are, to my mind, sufficiently serious as to amount to a violation of Article 3. To demand that vulnerable women exhaust meagre, discriminatory and ineffective ‘ remedies ’ before courts that can sanction the marriage of a 12 year child (as did the Yemeni court in this case)—before a grant of international protection may be considered—is to demand too much.

In her separate opinion the dissenting judge in the Migration Court of Appeal argued that leave to appeal should have been granted to the applicants in order to establish legal principles concerning the circumstances under which child marriage, forced marriage and honour crimes could constitute “persecution” on the basis of gender. She also questioned the extent to which asylum seekers should be required to seek protection in their home countries before international protection may be granted in circumstances where international sources indicate the difficulties which certain groups, such as, women, face in seeking and obtaini ng help from the authorities. These are important issues raised by this case and they merit the attention of this Court too.

[1] http://www.fco.gov.uk/en/travel-and-living-abroad/travel-advice-by-country/middle-east-north-africa/yemen/   D ownloaded on 9 March 2012 .

[2] UN News Ce ntre, “ After successful polls, Yemen must address security and humanitarian concerns ” , downloaded on 9 March 2012 from:

http://www.un.org/ap p s/news/sto r y.asp?NewsID=41482&Cr=yemen&Cr1 =

[3] Amnesty International: “ Women’s Day: Taking a stand with women in the Middle East ”, dated 6 March 2012 , downloaded from:

http://www.amnesty.org/en/news/women-s-day-taking-stand-women-middle-east-2012-03-02  

[4] CNN , “ Yemen is experiencing two revolutions, says female activist”, dated 17 November 2011, downloaded from: http://edition.cnn.com/2011/11/17/opinion/yemen-revolution-afrah-nasser/inde X html

BBC, “ Yemen women burn veils in Sanaa anti-Sahel protest”, dated 26 October 2011, downloaded from: http://www.bbc.co.uk/news/world-middle-east-15466661

[5] The third and fourth applicants’ requests for asylum were rejected by the Migration Board, apparently, without a hearing and, allegedly, in breach of the mandatory requirement of domestic law (Chapter 13, Section 1 of the Alien Act) that an oral hearing be conducted by the Board before an alien can be expelled from Sweden (See Applicants’ Observations, page 4). The Migration Court of Appeal refused all applicants’ request for an oral hearing. There being no hearing at all of the third and fourth applicants’ claims and, consequently, no detailed submissions on the assessment thereof at national level, it is not possible for me to conclude that their expulsion would not violate Article 3.

[6] See the United States Department of State “2010 Human Rights Report: Yemen ” of 8 April, 2011 and cited in § 39 of the Judgment.

[7] Applicants’ Observations dated 11 February 2010 at page 7 and § 10 of the Judgment.

[8] See the extracts from the International Human Rights Reports that are cited at §§ 39, 40, 42, 43 and 44 of the Judgment.

[9] Ibid.