Failure to assess risks for gay man’s return to his country violated Article 3 of the Convention

In the case B and C v. Switzerland (applications nos. 43987/16 and 889/19, 17.11.2020) the European Court of Human Rights held, unanimously, that there would be a violation of Article 3 (prohibition of inhuman or degrading treatment) of the European Convention on Human Rights if the first applicant were deported to the Gambia on the basis of the domestic decisions in his case.

The case concerned a homosexual couple, one of whom risked being returned to the Gambia following the rejection of his partner’s application for family reunification. He alleged he was at risk of ill-treatment if returned. 

The Court reiterated that legislation prohibiting homosexual acts did not render removal to that county contrary to the Convention. It noted that it was not disputed that he was a homosexual, but agreed with the domestic courts that his claims of past ill-treatment were not credible. The first applicant’s sexual orientation could be discovered if he were removed to the Gambia. The domestic authorities had held the contrary and furthermore had not assessed whether the Gambian authorities would be able and willing to provide the necessary protection to the first applicant against ill-treatment caused by his sexual orientation by non-State actors. The United Kingdom Home Office and the third-party intervenors, among others, stated that the Gambian authorities were currently unwilling to provide protection for LGBTI people in that State. 

Taking everything into consideration, the Court concluded that the Swiss courts had failed to sufficiently assess the risks of and State protection against ill-treatment from non-State actors, leading to a violation of the Convention.

The Court also considered that the indication made to the Swish Government under Rule 39 of the Rules of Court must remain in force until the present judgment became final. Namely, on 2 August 2016 the duty judge granted the applicant’s request for interim measures under Rule 39 of the Rules of Court and indicated to Switzerland not to deport the first applicant for the duration of the proceedings before it. Notice of the application was given to the Government exclusively in respect of the first applicant’s complaint under Article 3 of the Convention.

The applicants claimed that the first applicant’s expulsion would disrupt their protected right to family life and that hiding his homosexuality would infringe his right to private life in accordance to Article 8 of the Convention. The first applicant acknowledged that the second applicant’s death had changed those circumstances, but he nevertheless asserted that he wanted to continue to live in and visit the environment that he had shared with his former partner. The Court considered that given, in particular, that the question of the physical separation of the two applicants was no longer pertinent, there was no need to give a separate ruling under this Article.

References from the official website of the European Court of Human Rights