ECtHR – J.K. v. and Others v. Sweden, Application No. 59166/12, 23 August 2016

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Country of Applicant: 
Iraq
Date of Decision: 
23-08-2016
Citation: 
ECtHR – J.K. v. and Others v. Sweden, Application No. 59166/12, 23 August 2016
Court Name: 
European Court of Human Rights, Grand Chamber
Headnote: 

The return of the applicants to Iraq violates Article 3 ECHR as there is a real risk of ill-treatment based on their personal circumstances as a targeted group and the Iraqi authorities’ diminished ability to protect them.

Facts: 

Three Iraqi nationals, a married couple and their son, applied for asylum in Sweden in 2010. They claimed to fear persecution by al-Qaeda since the husband had run a business at an American army camp with exclusively American clients. After he had survived a murder attempt by al-Qaeda, he was hospitalised for three months. In 2005, a bomb was placed next to the family’s house, but it was detected and the perpetrator confessed being paid by al-Qaeda to watch the applicants. The daughter was shot and killed in Baghdad in 2008.

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

On 25 August 2015 the applicants requested the referral of the case to the Grand Chamber.  The applicants held that, in the event of their return to Iraq, they risked persecution by al-Qaeda, and their removal to Iraq by Sweden would entail a violation of Article 3 ECHR.

Decision & Reasoning: 

The Grand Chamber gave its ruling on 23 August 2016. In the assessment, the Court took account of the general principles applicable to expulsion cases, such as ex nunc evaluation of the circumstances of the case, distribution of the burden of proof and past ill-treatment as an indication of risk.

The Court accepts that the general security situation in Iraq did not as such prevent the removal of the applicants to their country of origin. Therefore, it assesses whether the applicants’ personal circumstances are such that they would face a real risk of treatment contrary to Article 3 if returned to Iraq.

According to the Court, the Iraqi family had been exposed to the most serious forms of abuses by al-Qaeda from 2004 until 2008, which is a strong indication that they would continue to be at risk from non-State actors in Iraq. Moreover, the Court holds that the first applicant should be considered as a member of a targeted group and notes that it appears from various reports from reliable and objective sources that persons who collaborated in different ways with the authorities of the occupying powers in Iraq after the war have been and continue to be targeted by al-Qaeda and other groups. In this connection attention must also be paid to the fact that the first applicant was ill-treated until 2008 and his contacts with the American forces were highly visible as his office was situated at the United States military base.

The Court further observes that the security situation in Iraq had severely deteriorated since 2011 and 2012. As a result of the increase in sectarian violence and ISIS attacks, most areas are no longer under effective control by the Iraqi government. The Iraqi authorities would therefore be unable to adequately protect its citizens. The Court is therefore not convinced that the Iraqi State would be able to provide the applicants with effective protection against threats by al-Qaeda or other private groups in the current situation.

In light of the particular circumstances of this case, the Court holds that the first applicant and the two other members of his family who are applicants in the case would face a real risk of continued persecution by non-State actors if returned to Iraq.

 
Outcome: 

The ECtHR finds that the order for the applicants’ deportation to Iraq would give rise to a violation of Article 3 of the Convention. It holds that this finding constitutes in itself sufficient just satisfaction for any non-pecuniary damage sustained by the applicants. 

Subsequent Proceedings : 

The ECtHR finds that the order for the applicants’ deportation to Iraq would give rise to a violation of Article 3 of the Convention. It holds that this finding constitutes in itself sufficient just satisfaction for any non-pecuniary damage sustained by the applicants. 

Case Law Cited: 

ECtHR - N v Finland, Application no. 38885/02

ECtHR - T.I. v United Kingdom (Application no. 43844/98)

ECtHR - Müslim v Turkey (Application no. 53566/99)

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

ECtHR - Bahaddar v The Netherlands (Application no. 25894/94)

ECtHR - Labita v. Italy [GC], Application No. 26772/95

ECtHR - Venkadajalasarma v the Netherlands, Application No. 58510/00

ECtHR - H.L.R. v. France, Application no. 24573/94

ECtHR - Nizamov and Others v. Russia, Applications nos. 22636/13, 24034/13, 24334/13, 24328/13

ECtHR - S.H.H. v. UK, no 60367/10
Other sources cited: 

UNHCR Note on Burden and Standard of Proof in Refugee Claims

UNHCR Handbook and Guidelines on Procedures and Criteria for Determining Refugee Status

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 - Swedish Aliens Act (Utlänningslagen
Act no. 2005:716)