ECtHR Decision in B.K.A. v. Sweden, Application No. 11161/11, T.A. v. Sweden, Application No. 48866/10, T.K.H. v. Sweden, Application No. 1231/11 [Articles 2 and 3], 19 December 2013

Monday, December 23, 2013

These three cases are about the proposed deportation of three Sunni Muslim Iraqi nationals from Sweden back to Iraq, on account of their asylum claims having been rejected in 2010, three years after their arrival. B.K.A., a member of the Ba’ath party, worked as a professional soldier for over a year for the regime of Saddam Hussein. He was also involved in a blood feud after unintentionally killing a relative. T.A. worked for security companies in Baghdad who co-operated with the US military, and alleged that his house was completely destroyed by Shi’ite militias. T.K.H. served in the new Iraqi army from 2003 to 2006, was allegedly seriously injured in both a suicide bomb explosion and a drive-by shooting outside his home, and purported to be the recipient of death threats. All three fled Iraq and rely on their rights under Articles 2 and 3 to resist their return.

The Court in all three judgments declared the general situation in Iraq to be not sufficiently serious to warrant the conclusion that any return to Iraq would violate Article 3 irrespective of personal circumstances.


The Court ruled that B.K.A.’s membership of the Ba’ath party and former military service no longer posed a threat to him, given the long time that had since passed, his low-level role in both, and the lack of any recent threats related to his involvement. The Court also dismissed his fears of persecution by Iraqi authorities, given he had successfully applied for a passport from them. The Court, however, accepted the risk posed by the blood feud, notwithstanding the lack of evidence, due to the obvious difficulties in obtaining such evidence. Despite this risk, the Court also decided that it was geographically limited to Baghdad and Diyala, and that B.K.A. could reasonably relocate to the Anbar governorate, the largest province in Iraq.


The Court accepted that those associated with security companies employed by the international forces in Iraq faced a greater risk of persecution from militias than the general population. However, the Court were sceptical of an internal contradiction in the Applicant’s account and evidence, namely his brother’s documented claim that four people went into T.A.’s house a year after it was allegedly completely destroyed. This problem, coupled with the general lack of evidence for his claims and the near six year time lapse since the relevant acts of persecution, led the Court to reject T.A.’s Article 2 and 3 complaints.

Two judges of the Court dissented from the majority opinion, on account of the Applicant’s former employment placing him in a specific risk category, the escalating violence in Iraq in 2013, the overall plausibility of T.A.’s account, the overly onerous credibility test applied by the Swedish authorities, and the majority according too much weight to the alleged discrepancy in his account.


No violation of Article 2 or 3 was found in relation to T.K.H. The Court noted that his service in the Iraqi army ended over seven years ago, and therefore no longer formed the basis of a risk of persecution. As to the two incidents of serious injury, the Court concluded that the first had not resulted from the Applicant being specifically targeted and the second was a historical incident with no evidence to suggest any future risk. The Court also regarded T.K.H.’s medical problems as neither untreatable in Iraq nor prohibitive of air travel.

One judge dissented from the majority, essentially for the same reasons for his dissent in T.A. v. Sweden.

Read the full judgments of the European Court of Human Rights in B.K.A. v. Sweden, T.A. v. Sweden, and T.K.H. v. Sweden

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Credibility assessment
Inhuman or degrading treatment or punishment
Internal protection
Membership of a particular social group
Political Opinion