ECtHR - J.K. and Others v. Sweden, Application no. 59166/12

Printer-friendly versionPrinter-friendly version
Country of Applicant: 
Iraq
Date of Decision: 
04-06-2015
Citation: 
J.K. and Others v. Sweden, Application no. 59166/12
Court Name: 
European Court of Human Rights (Fifth Section)
Headnote: 

The proposed deportation of the applicants to Iraq would not violate Article 3 ECHR, either based on the general situation of violence in Iraq, or on the basis of past serious violence and threats that occurred in 2008.

Facts: 

The applicants, Iraqi nationals, are a married couple and their son who applied for asylum in Sweden. The basis of their asylum claim was a fear of persecution by al-Qaeda.

The husband had run a business since the 1990s at an American army camp with exclusively American clients. He survived a murder attempt by al-Qaeda, but was hospitalised for three months. His brother was kidnapped by the group the following year and was threatened due to the applicant’s ‘collaboration’ with the Americans. In 2005, a bomb was placed next to the applicants’ house but it was detected and the perpetrator confessed being paid by al-Qaeda to watch the applicants. The family moved to Syria for a number of years during which al-Qaeda destroyed their home and business stocks. They did not seek protection from the domestic authorities as they lacked the ability to protect them and al-Qaeda collaborated with the authorities.

After returning to Baghdad in 2008, their daughter was shot at and killed and business stocks were attacked numerous times. The husband ceased his business activities and the family moved around to avoid detection.

They claimed asylum in Sweden in 2011 which was rejected by the Migration Board of Sweden who found that although their account was credible; after ending collaboration with the Americans in 2008 they were able to live in Baghdad for two years without being victim of any attacks. In addition, they could seek domestic authorities’ protection as al-Qaeda infiltration had greatly diminished.

On appeal to the Migration Court, they produced further evidence indicating that a masked terrorist group had come to search for the husband in 2011, that their house had been burned down, and that the Iraqi administration was corrupt and infiltrated by al-Queda. Their appeal was rejected and so was their request for re-examination.

The applicants submitted that their return to Iraq would violate Article 3 ECHR, and interim measures to prevent their deportation were granted under Rule 39 in September 2012. 

Decision & Reasoning: 

The Court considered the general situation of violence in Iraq, citing various international reports. It found that despite the significant worsening in the situation since the ISIS offensive in northern Iraq in June 2014, none of these reports showed reason to depart from its previous findings that the general situation in Iraq was not so serious as to cause by itself, a violation of Article 3 upon return.

Turning to the specific circumstances of the applicants, it agreed with the Swedish authorities that they had not substantiated allegations of being threatened or persecuted by al-Qaeda after 2008 and also pointed out some credibility issues in their allegations. In view of the fact that the latest substantiated attack against the applicant was in 2008, and that the family had stayed in Baghdad after this without being subject to further threats, it concluded that there was not sufficient evidence to conclude that the applicants would face a real risk of being subjected to treatment contrary to Article 3 of the Convention upon return to Iraq.

Outcome: 

A majority of 5 to 2 found that implementation of the deportation order against the applicants would not give rise to a violation of Article 3 of the Convention. 

Subsequent Proceedings : 

On 25 August 2015 the applicants requested the referral of the case to the Grand Chamber, which subsequently accepted the request. The Grand Chamber found on the 23 August 2016, ten votes to seven, that if the applicants were returned to Iraq they would run a real risk of being exposed to treatment contrary to Article 3 ECHR. Such a violation would ensue on account of their personal circumstances as a targeted group and the Iraqi authorities’ diminished ability to protect them.

Observations/Comments: 

Judge Zupančič dissented from the majority finding that there was a violation of Article 3, in a statement that Judge de Gaetano agreed with.

He opined that the assessment of probabilities in law was necessarily subjective and speculative but that in asylum law presumptions such as the burden of proof should be high, given the severe risks faced by innocents if refouled. He emphasised that “the evidentiary burden and the risk of non-persuasion, once the prima facie case has been established in favour of the applicants, lies squarely on the Government.” In this case, the applicants’ accepted account of a direct murder attempt on the husband and the death by shooting of their daughter established a prima facie case for asylum, thus the evidentiary burden fell on the Swedish authorities to prove that the applicants would not be subjected to Article 3 ill-treatment on return. He criticised the approach of the Swedish authorities in finding that lack of credibility of the applicants on some issues could nullify the evidentiary value of other facts. 

Case Law Cited: 

ECtHR - Hilal v United Kingdom, Application no. 45276/99

ECtHR - Collins and Akaziebe v Sweden (Application no. 23944/05)

ECtHR - Mamatkulov Askarov v Turkey, Applications nos. 46827/99 and 46951/99

ECtHR - Üner v. the Netherlands [GC], Application No. 46410/99

ECtHR - F.H. v. Sweden, Application no. 32621/06

ECtHR - Hakizimana v. Sweden, Application No. 37913/05

ECtHR - Boujlifa v. France, 21 October 1997, § 42, Reports of Judgments and Decisions 1997-VI

ECtHR - Abdulaziz, Cabales and Balkandali v. the United Kingdom, Application Nos. 9214/80, 9473/81 and 9474/81

ECtHR - H.L.R. v. France, Application no. 24573/94
Other sources cited: 

Amnesty International, “Civilians in the line of fire”, 14 July 2014

UNHCR position on returns to Iraq of October 2014

United Kingdom Home Office, Country information and Guidance, Iraq: internal relocation (and technical obstacles), 24 December 2014,

Human Rights Watch, World Report 2015, Iraq, of 29 January 2015

German Federal Office for Migration and Asylum, Information Centre Asylum and Migration: Briefing Notes (9 February 2015)

Authentic Language: 
English
State Party: 
Sweden
National / Other Legislative Provisions: 
Sweden - Government Bill 2004/05:170 - pp. 190-191
Sweden - Utlänningslagen (Aliens Act) (2005:716) - Chapter 4 Section 1
Sweden - Utlänningslagen (Aliens Act) (2005:716) - Chapter 5 Section 1
Sweden - Utlänningslagen (Aliens Act) (2005:716) - Chapter 4 Section 2
Sweden - Utlänningslagen
Sweden - Utlänningslagen (Aliens Act) (2005:716) - Chapter 12 Section 1
Sweden - Utlänningslagen (Aliens Act) (2005:716) - Chapter 12 Section 2
Sweden - Utlänningslagen (Aliens Act) 2(005:716) - Chapter 12 Section 18
Sweden - Utlänningslagen (Aliens Act) (2005:716) - Chapter 12 Section 19