In the case of S.A. v. Sweden,
The European Court of Human Rights (Fifth Section), sitting as
a Chamber composed of:
Mark Villiger, President,
Angelika Nußberger,
Boštjan M. Zupančič,
Ann Power-Forde,
André Potocki,
Paul Lemmens,
Helena Jäderblom, judges,
and Claudia Westerdiek, Section Registrar,
Having deliberated in private on 28 May 2013,
Delivers the following judgment, which was adopted on that
date:
PROCEDURE
The case originated in an application (no.
66523/10) against the Kingdom of Sweden lodged with the Court under Article 34
of the Convention for the Protection of Human Rights and Fundamental Freedoms
(“the Convention”) by an Iraqi national, Mr S.A. (“the applicant”), on 12 November 2010. The President of the Section acceded to the applicant’s request not
to have his name disclosed (Rule 47 § 3 of the Rules of Court).
The applicant was represented by Mr K. Hellström,
legal adviser to the Swedish red Cross in Malmö. The Swedish Government (“the
Government”) were represented by their Agent, Mr A. Rönquist, of the Ministry
for Foreign Affairs.
The applicant alleged that he would be killed or
ill-treated if returned to Iraq due to honour-related issues.
On 16 November 2010 the President of the Section to
which the case had been allocated decided to apply Rule 39, indicating to the
Government that it was desirable in the interests of the parties and the proper
conduct of the proceedings that the applicant should not be deported to Iraq until further notice.
On 12 September 2011 the application was
communicated to the Government.
THE FACTS
I. THE CIRCUMSTANCES OF
THE CASE
The applicant is an Iraqi national who was born in 1979.
He is currently in Sweden.
On 18 January 2008 the applicant applied for
asylum in Sweden. Before the Migration Board (Migrationsverket), the applicant submitted that he is a Sunni Muslim from Nasriya, located in the Thi-Qar
district in Southern Iraq. He had been in a relationship with a woman who was a
Shiah Muslim. He had asked her family for permission to marry her on three
occasions in 2007, but had been refused because he was a Sunni Muslim. After
his first proposal, two of the woman’s cousins had assaulted him and warned him
against proposing again. In late 2007 the couple had decided to elope. They had
travelled to Baghdad, where they had stayed with a relative of the applicant
for one week. They had falsely told their families that they had married and the
woman had returned to her parents’ house, after having been promised that the
family would allow the marriage. Meanwhile, the applicant had returned home with
his brothers. Some days later, four unidentified persons had shot at their
house, but had left after the applicant’s brother had fired back. The next day
the applicant had driven past the woman’s house, and had discovered that she
had been killed. Her hair and her hand with the engagement ring had been hung
on the front door of her house, as a sign that the family had cleansed their
honour. The woman had been killed by her father and two of her cousins. Of the
woman’s cousins one was involved with the Badr Organisation and another with the
Al Daawa party, and they had requested the militias to harass the
applicant. His family’s house had been visited daily by the woman’s relatives, and they had left a threatening letter stating that they wanted his head. They had also
entered his family’s house to look for him. The applicant had left the region
after a few days in hiding. In 2008, his father had received a threatening
letter, urging him to surrender the applicant or else leave his home. His
mother had been shot and killed by relatives of the woman in January 2009. The
shot had been aimed at another relative, but had hit her instead. Their house had
subsequently been burnt down.
On 22 June 2009 the Migration Board rejected the
applicant’s claim for asylum and ordered his deportation to Iraq. It noted
that the first shooting at the applicant’s home had been perpetrated by unknown
persons. The Board further held that the applicant’s claim that the woman’s
family had been responsible for the shooting was mere speculation on his part. The
threatening letter addressed to his father was unsigned, while the one
addressed to the applicant had not been submitted to the Board. It had not been
made probable that the death of the applicant’s mother was connected to him.
The Board also noted that the police had contacted the woman’s family regarding
the incidents, and that they had denied involvement. The woman’s family had, according to the applicant’s own statements, “washed away their shame” by killing the woman, and the Board therefore presumed that the family considered their honour to be restored. The
Board further highlighted that the applicant had been offered protection by his
own family and clan. Furthermore, he had been able to live in Baghdad for a
certain period of time without being subjected to threats or violence.
The applicant appealed and added the following.
His family had reported the events to the police, but the investigation had not
led to any results. Members of his family, still residing in the area, had on several occasions noticed cars circling their house at night. Their neighbours had been
asked about the applicant’s whereabouts, and had been told to pass on the
message that his mother’s death was not enough, and that nothing short of the
applicant’s death would wash away the shame of the woman’s family. The woman’s
family had also announced that they would kill the applicant’s family if they
could not find him. He had been in touch with the mukhtar, the village chief, who had told him that mediation had failed and advised him not to return.
The Migration Board contested the appeal and contended
that the applicant could hardly be said to have damaged the honour of the woman’s
family - if any honour was offended it was his own family’s. If the woman’s
family was indeed persecuting him, this should be considered as pure revenge. If
that were the case, the applicant should be able to avail himself of the
authorities’ protection. The Migration Board noted that there was no
information regarding the police investigation, but it could be assumed that it
would be duly carried out. According to the Board, internal relocation was an
option.
On 21 January 2010 the Migration Court (Migrationsdomstolen)
in Stockholm upheld the Migration Board’s decision. The court held that what
the applicant had been subjected to was normally a matter for the domestic
authorities. According to the court, there was no indication that the domestic
authorities lacked the willingness or ability to protect their inhabitants.
Therefore, the applicant was not considered to be in need of international
protection.
On 17 March 2010 the Migration Court of Appeal (Migrations-överdomstolen)
refused leave to appeal.
II. RELEVANT DOMESTIC LAW AND PRACTICE
A. The Aliens Act
The basic provisions applicable in the present
case, concerning the right of aliens to enter and to remain in Sweden, are laid down in the Aliens Act (Utlänningslagen, 2005:716).
An alien who is considered to be a refugee or
otherwise in need of protection is, with certain exceptions, entitled to a
residence permit in Sweden (Chapter 5, section 1 of the Act). The term
“refugee” refers to an alien who is outside the country of his or her
nationality owing to a well-founded fear of being persecuted on grounds of
race, nationality, religious or political beliefs, or on grounds of gender,
sexual orientation or other membership of a particular social group and who is
unable or, owing to such fear, is unwilling to avail himself or herself of the
protection of that country (Chapter 4, section 1). This applies irrespective of
whether the persecution is at the hands of the authorities of the country or if
those authorities cannot be expected to offer protection against persecution by
private individuals. By “an alien otherwise in need of protection” is meant, inter
alia, a person who has left the country of his or her nationality because
of a well-founded fear of being sentenced to death or receiving corporal
punishment, or of being subjected to torture or other inhuman or degrading
treatment or punishment (Chapter 4, section 2).
Moreover, if a residence permit cannot be
granted on the above grounds, such a permit may be issued to an alien if, after
an overall assessment of his or her situation, there are such particularly
distressing circumstances (synnerligen ömmande omständigheter) to allow
him or her to remain in Sweden (Chapter 5, section 6). Special consideration
should be given, inter alia, to the alien’s health status. According to
the preparatory works (Government Bill 2004/05:170, pp. 190-191), life-threatening
physical or mental illness for which no treatment can be given in the alien’s
home country could constitute a reason for the grant of a residence permit.
As regards the enforcement of a deportation or
expulsion order, account has to be taken of the risk of capital punishment or
torture and other inhuman or degrading treatment or punishment. According to a
special provision on impediments to enforcement, an alien must not be sent to a
country where there are reasonable grounds for believing that he or she would
be in danger of suffering capital or corporal punishment or of being subjected
to torture or other inhuman or degrading treatment or punishment (Chapter 12,
section 1). In addition, an alien must not, in principle, be sent to a country
where he or she risks persecution (Chapter 12, section 2).
Under certain conditions, an alien may be
granted a residence permit even if a deportation or expulsion order has gained
legal force. This is the case where new circumstances have emerged which
indicate that there are reasonable grounds for believing, inter alia,
that an enforcement would put the alien in danger of being subjected to capital
or corporal punishment, torture or other inhuman or degrading treatment or
punishment or there are medical or other special reasons why the order should
not be enforced (Chapter 12, section 18). If a residence permit cannot be
granted under this criterion, the Migration Board may instead decide to
re-examine the matter. Such a re-examination shall be carried out where it may
be assumed, on the basis of new circumstances invoked by the alien, that there
are lasting impediments to enforcement of the nature referred to in Chapter 12,
sections 1 and 2, and these circumstances could not have been invoked
previously or the alien shows that he or she has a valid excuse for not having
done so. Should the applicable conditions not have been met, the Migration
Board shall decide not to grant a re-examination (Chapter 12, section 19).
Matters concerning the right of aliens to enter
and remain in Sweden are dealt with by three instances: the Migration Board,
the Migration Court and the Migration Court of Appeal.
B. Case-law on honour-related violence
On 9 March 2011 the Migration Court of Appeal
delivered a judgment concerning an alleged risk of honour-related crimes
(MIG 2011:6). The applicants, a young couple from the Kurdish parts of Iraq, claimed to have had an illicit relationship which had resulted in their being
persecuted by the woman’s family. Their applications for asylum had been
rejected by the Migration Board and granted on appeal by the Migration Court. The Migration Court of Appeal granted the Board leave to appeal.
The appellate court upheld the Migration Court’s
judgment. It considered that the applicants had made probable that they would
be subjected to honour-related violence or other forms of abuse upon return. It
further considered that, while there was a possibility to receive protection in
the Kurdish region against honour-related crimes, country information revealed
that the situation was very fragile, making it impossible to draw any general
conclusion as to whether the authorities were able to provide effective
protection. For instance, effective protection could be difficult to get if the
persons making the threats belonged to a powerful clan with influence at
governmental level. Having had regard to the applicants’ personal circumstances, the alleged persecutors’ influence in Iraqi society and the lack of effective protection, the Migration Court of Appeal concluded that the applicants would in all likelihood be unable
to receive sufficient protection in the Kurdish region. The court further observed
that, according to country information, the only possible protection for men
would be temporary detention.
III. RELEVANT INFORMATION ABOUT IRAQ
A. Honour
crimes
On 31 May 2012 the United
Nations High Commissioner for Refugees (UNHCR) issued the latest Eligibility
Guidelines for Assessing the International Protection Needs of Asylum-Seekers
from Iraq. In regard to honour violence, it sets out the following
(at p. 37):
“So-called “honour crimes” - that is, violence committed by
family members to protect the family’s honour - reportedly remain of particular
concern. Most frequently, women and girls and, to a lesser extent, men and
boys, are killed or subjected to other types of violence such as mutilations,
because they are judged to have transgressed cultural, social or religious
norms bringing shame to their family. “Honour crimes” are said to occur for a
variety of reasons, including adultery, loss of virginity (even by rape),
refusal of an arranged marriage, attempt to marry someone against the wishes of
the family or making a demand for a divorce. Even the suspicion or rumour that
any of these acts have been committed can reportedly result in “honour crimes”.
...
The Iraqi Penal Code contains provisions that allow lenient
punishments for “honour killings” on the grounds of provocation or if the
accused had “honourable motives”. ... “Honour crimes” are reported to be
frequently committed with impunity, given the high level of social acceptance
of this type of crime, including among law enforcement officials. “Honour
crimes” are reported to be committed in all areas of Iraq, though there is
generally more information available in the Kurdistan Region, where the KRG
[the Kurdistan Regional Government] has taken steps to combat the practice.
Importantly, the KRG has introduced legal amendments to the Iraq Penal Code,
effectively treating “honour killings” on the same level as other homicides.”
The UNHCR Guidelines further stated that, for men at risk of
“honour crimes”, there are no protection facilities in the Kurdistan Region other
than detention or prison (p. 38).
The UK Border Agency Iraq Operational
Guidance Note of December 2011 stated the following regarding honour crimes
in central and southern Iraq (at paras. 3.9.6 and 3.9.8):
“The Iraqi Penal Code (Law No. 111 of 1969) contains provisions
that allow lenient punishments for honour killings ‘on the grounds of
provocation or if the accused had honourable motives’. ...
...
The police forces are tribally-based, however when it comes to
issues related to honour crimes especially, there are efforts to try and break
with how such cases are typically dealt with. On the other hand, there is a lot of tolerance towards the concept of honour and a widespread understanding in
society of the male responsibility in preserving a family’s honour.”
As regards honour crimes in the Kurdistan Region,
the Border Agency stated (para. 3.9.10):
“The legal position in the Kurdistan Region of Iraq is
different to south and central Iraq. In 2002, Kurdish Region government passed
a law to abolish reduced penalties for the murder of a female family member by
a male relative on grounds of family shame and dishonour. This law sets the
Kurdish region apart from many other countries in the Middle East and North Africa , where penal laws still permit mitigated sentences and exemptions for men who
murder in the name of ‘honour’. In the Kurdish region honour killings are now
punished as harshly as other murders and are not viewed differently under the
law.”
The Border Agency summarised (paras. 3.9.15 and
3.9.16):
“Women fearing ‘honour killing’ or ‘honour crimes’ in either
central or southern Iraq or in the Kurdistan Region of Iraq are unlikely to be
able to access effective protection. Each case must be considered on its own
merits to assess whether internal relocation would be possible for the
particular profile of claimant, but in general an internal relocation
alternative is unlikely to be available for lone women.
Honour crimes might not always be gender-related and there
might be cases where men are as likely as women to be victims for committing
certain acts which have brought shame on their family. If in such a case
internal relocation is considered unduly harsh then Humanitarian Protection
might be appropriate.”
B. Tribal structure
The UK Border Agency Iraq Operational
Guidance Note of 12 February 2007 set out the following regarding the
tribal structure in Iraq:
“Iraq is a largely tribal society with at least three-quarters
of the Iraqi people belonging to one of the country’s 150 tribes. Tribes are
regional power-holders and therefore if there is a localised tribal dispute the
individual should be able to relocate to escape the problem. However UNHCR
noted in October 2005 that within the Iraqi context and with the exception of
the capital city of Baghdad, cities are constituted of people belonging to
specific tribes and families. Any newcomer, particularly when he/she does not
belong to the existing tribes and families, is liable to be subject to
discrimination. However tribes do appear to have limited influence in Baghdad. Though relocation by persons of a certain tribe may cause resentment and
discrimination on the part of the receiving tribe, such relocation is not
considered unduly harsh.”
C. Sectarian violence
The UNHCR Guidelines set out the following
regarding sectarian violence in Iraq (at pp. 25-26):
“While open sectarian violence between Arab Sunnis and Arab Shi’ites
ended in 2008, armed Sunni groups continue to target Shi’ite civilians with the
apparent aim of reigniting sectarian tension. Sectarian-motivated violence
includes: mass-casualty attacks targeting Shit’ite civilians and pilgrims;
threats against Sunnis in Shi’ite majority areas and Shi’ites in Sunni majority
areas; as well as targeted killings of both Sunni and Shi’ite clerics and
scholars. Baathist ties and/or purported engagement in terrorism are often
equated to sectarianism by the Iraqi Government and the ISF [international
security forces]. Many individuals accused of Ba’athist ties and/or terrorism
and thus perceived to be engaged in sectarianism are of Sunni background.
...
During the period of heightened sectarian violence in 2006 and
2007, the social and demographic make-up of many areas were altered as Sunni
and Shi’ite armed groups sought to seize control and to cleanse “mixed” areas
of the rival sect. This occurred principally in Baghdad, Iraq’s most diverse
city, but also in the mixed towns and villages surrounding it. During that
period, many members of both sects were internally displaced or fled abroad. To
date, most of Baghdad’s formerly mixed neighbourhoods remain largely
homogenized, preventing many from returning to their former areas of residence.
In only a few neighbourhoods of Baghdad do members of both sects live side by
side. Most returnees have returned to areas under the control of their own
community. The recent political crisis, combined with a series of attacks by
Sunni armed groups targeting Shi’ite neighbourhoods and pilgrims, has deepened sectarian
tensions. Anecdotal evidence from UNHCR protection monitoring activities
suggests that some Sunnis are leaving mixed and predominantly Shi’ite
neighbourhoods in Baghdad fearing retaliation. While previously many Iraqi
Sunnis fled to Syria and Jordan to escape sectarian violence, reportedly most
now seek to relocate within Iraq given tightened visa requirements in these
countries and the ongoing violence in Syria.
Both Sunnis and Shi’ites living in or returning to areas in
which they would constitute a minority may be exposed to targeted violence on
account of their religious identity. Both Shi’ites in Sunni-dominated
neighbourhoods and Sunnis in Shi’ite-dominated neighbourhoods have reportedly
been subjected to threatening letters demanding that they vacate their homes.
In cases where individuals do not comply, there are reports of violence or
harassment, including killings.”
In a recent country guidance determination, HM
and others (Article 15(c)) Iraq CG [2012] UKUT 00409 (IAC), of 13
November 2012, the UK Upper Tribunal (Immigration and Asylum Chamber) stated
the following (at para. 297):
“... We observe that although the May 2012 UNHCR Guidelines
emphasise the harm caused by the ethno-sectarian conflict between different
communities, especially that between Sunni and Shi’a, they do not state there
is a need for international refugee protection purely because a person is a
Sunni or Shi’a and we do not consider that the evidence shows that there is a
real risk of Article 15(c) [of the Refugee Qualification Directive 2004/83/EC]
harm arising solely because a person is a Sunni or Shi’a civilian. And even
where concern is expressed about both Sunnis and Shi’as living in or returning
to areas in which they would constitute a minority, the substance of what UNHCR
is saying is not that Sunni Arabs living in majority Shi’a areas and Shi’a
Arabs living in majority Sunni Arab areas “will” be at Article 15(c) risk but
simply that “they may be exposed to targeted violence on account of their
religious identity”. In our judgement the other evidence relating to Sunnis and
Shi’as reveals a similar picture. However, whilst for the above reasons we find
the evidence as a whole insufficient to establish Sunni or Shi’a identity as in
itself an “enhanced risk category” under Article 15(c), we do accept that
depending on the individual circumstances, and in particular on their facing
return to an area where their Sunni or Shi’a brethren are in a minority, a
person may be able to establish a real risk of Article 15(c). (They may,
of course, also be able to establish a real risk of persecution under the
Refugee Convention or of treatment contrary to Article 3 of the ECHR).”
D. The possibility of internal relocation
As regards the possible internal flight or
relocation alternatives (IFA/IRA) in southern and central Iraq, the 2012 UNHCR Guidelines stated, inter alia, the following (at pp. 53 and 55):
“As indicated in these Guidelines, persecution primarily
emanates from a range of non-state actors. Armed groups reportedly have
operatives in many parts of the country and, as a result, a viable IFA/IRA will
likely not exist for individuals at risk of being targeted by such groups in
southern and central Iraq. As reported throughout these Guidelines, armed
groups are present in many parts of the country and have demonstrated mobility
in accessing areas where they do not have strongholds. The mobility and reach
of armed groups should not be underestimated in determining the relevance of an
IFA/IRA. Persons seeking to relocate to other areas in central and southern Iraq may be at risk of facing renewed violence given the high levels of violence prevailing
in many areas. UNHCR protection monitoring shows that lack of physical safety
remains a concern for both IDPs [internally displaced persons] and returnees,
particularly in the central governorates. Reports have been received of
returnees being targeted because they do not belong to the majority sect in
their area of return. In some cases, these attacks have been fatal. The
presence of IDPs can at times result in tensions with host communities that
consider them a destabilizing factor.
Generally, protection by national authorities will not be
available given that the national authorities have as yet limited capacity to
enforce law and order. Members of the ISF and the judiciary are themselves a
major target of attacks and are reportedly prone to corruption and infiltration.
...
For categories of individuals who fear harm as a result of
traditional practices and religious norms of a persecutory nature - such as
women and children with specific profiles, victims of trafficking, and LGBTI
individuals - and for whom internal relocation to another part of central and
southern Iraq may be relevant, the endorsement of such norms by large segments
of society and powerful conservative elements in the Iraqi public
administration as well as the continued presence of armed groups with extremist
or highly conservative leanings militate against the availability of an IFA/IRA
in southern and central Iraq.
...
Common ethnic or religious backgrounds and existing tribal and
family ties in the area of relocation are crucial when assessing the
availability of an IFA/IRA, as these generally ensure a certain level of
community protection and access to services. ... Further, an IFA/IRA to an area
with a predominantly different ethnic or religious demography may also not be
possible due to latent or overt tensions between groups. This can be
particularly the case for Sunnis in predominantly Shi’ite areas, and vice
versa, especially if the demographic make-up of the areas has changed as a
result of previous sectarian violence.”
The UNHCR summarised the situation in the southern and central
parts of Iraq thus (at p. 56):
“Reports of insecurity, problematic living conditions and lack
of documentation in southern and central Iraq militate against the availability
of an IFA/IRA. Further, relocation to an area with a predominantly different
ethnic or religious demographic is not reasonable due to latent or overt
tensions between ethnic or religious groups. This can be particularly the case
when considering relocation of Sunnis to predominantly Shi’ite areas or vice
versa.”
THE LAW
I. ALLEGED VIOLATION OF
ARTICLES 2 AND 3 OF THE CONVENTION
The applicant complained that the enforcement of
the deportation order would be in violation of Articles 2 and 3 of the
Convention, which, in relevant parts, reads as follows:
Article 2
“1. Everyone’s right to life shall be protected by
law. ...”
Article 3
“No one shall be subjected to torture or to inhuman or
degrading treatment or punishment.”
The Government contested that argument.
The Court finds that the issues raised in the
present case under Articles 2 and 3 of the Convention are indissociable and
will therefore examine them together (see, among others, D. v. the United Kingdom,
2 May 1997, § 59, Reports of Judgments and Decisions 1997-III, and F.H. v.
Sweden, no. 32621/06, § 72, 20 January 2009).
A. Admissibility
The Court notes that the application is not
manifestly ill-founded within the meaning of Article 35 § 3 (a) of the
Convention. It further notes that it is not inadmissible on any other grounds.
It must therefore be declared admissible.
B. Merits
1. The submissions of the
parties
(a) The applicant
The applicant maintained that the enforcement of
the deportation order would be in violation of Articles 2 and 3 of the
Convention, since he would risk being subjected to “honour crimes” in Iraq on account of his relationship with the woman in question.
Referring to country information, he claimed
that honour killings were on the rise in Iraq. Moreover, he stated that the
Iraqi police force suffered from corruption, resulting in clans and militias being
able to influence the police. In response to the Government’s reliance on the
Kurdish region as a possible internal flight alternative, the applicant stressed
that country information strongly indicated that he would not be able to enter that
region. He further held that he would not be able to avail himself of any other
internal flight alternative. In that connection, he pointed to country
information indicating that documents were needed in order to relocate from one
part of Iraq to another and, moreover, that there was a requirement to obtain
permission from the council or security office in the relocation area.
According to the applicant, his contact with the local authorities would lead
to his being found by the woman’s family.
The applicant maintained that the woman’s family
belonged to a powerful clan with connections and the means to trace him
wherever in Iraq he might be. In that connection, he stated that his closest family
had been forced to leave Iraq due to constant threats.
(b) The Government
The Government considered that the situation in Iraq did not, in itself, suffice to establish that a return of the applicant would entail a
breach of Article 3 of the Convention.
The Government pointed out that the applicant had
not invoked any evidence to substantiate that there was a connection between
the shooting against his family’s house and the letter containing threats
against his father, on the one hand, and the death of the woman, on the other.
Nor did the circumstances of the case reveal such a connection or any other
facts to substantiate that the applicant would run a personal risk of
ill-treatment if returned to Iraq. Hence, in the Government’s view, the
applicant had not substantiated that he would run the risk of being subjected
to treatment in violation of Articles 2 or 3 of the Convention upon return to Iraq.
In the event that the Court were to find that the
applicant would run certain personal risks of having his rights according to Articles
2 or 3 of the Convention violated upon return to Iraq, the Government considered
that the applicant had the opportunity to turn to the authorities for
protection.
The Government further noted that the applicant
had claimed that he had tried to resolve the matter through mediation. However,
he had failed to submit any evidence thereof which, in the Government’s view, should
have been possible. Moreover, they observed that the applicant had not claimed
that he had turned to the Iraqi authorities for help, although it would be
possible for persons subjected to honour-related threats to obtain protection
by doing so. Thus, in the Government’s view, the applicant had not
substantiated that the Iraqi authorities were unable to obviate the risk he
allegedly would face upon return by providing him with appropriate protection.
In any event, the Government maintained that the
applicant had the possibility of internal relocation. In that connection, they stressed
that the applicant is a man, born in 1979, and that no information had emerged
concerning his health or any other circumstances to indicate that he was not
fit for work. Moreover, the Government were of the opinion that the applicant’s
claim that the woman’s family was well-respected in the political sphere in
Iraq was rather vague and insufficient to demonstrate that the family has the
information and resources necessary to locate the applicant in other parts of
Iraq than his home region. In addition, no other circumstances had emerged
indicating that he would not be safe in central Iraq or the Kurdistan Region. In
that connection, the Government took the view that the applicant would be able
to gain admittance to both central Iraq and the Kurdistan Region.
2. The Court’s assessment
(a) General principles
The Court reiterates that Contracting States
have the right, as a matter of well-established international law and subject
to their treaty obligations, including the Convention, to control the entry,
residence and expulsion of aliens (see, for example, Abdulaziz,
Cabales and Balkandali v. the United Kingdom, judgment of 28
May 1985, Series A no. 94, p. 34, § 67; Boujlifa
v. France, judgment of 21 October 1997, Reports
1997-VI, p. 2264, § 42; and Üner
v. the Netherlands [GC], no. 46410/99, § 54, ECHR 2006-XII).
However, the expulsion of an alien 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 in question, if deported, would face a real risk of being subjected
to treatment contrary to Article 3 in the receiving country. In these
circumstances, Article 3 implies the obligation not to deport the person in
question to that country (see, among other authorities, Saadi v. Italy
[GC], no. 37201/06, §§ 124-125, ECHR 2008-...).
The assessment of whether there are substantial
grounds for believing that the applicant faces such a real risk inevitably
requires that the Court assesses the conditions in the receiving country
against the standards of Article 3 of the Convention (Mamatkulov
and Askarov v. Turkey [GC], nos. 46827/99 and 46951/99, § 67,
ECHR 2005-I). These standards imply that the ill-treatment the applicant
alleges he will face if returned must attain a minimum level of severity if it
is to fall within the scope of Article 3. The assessment of this is relative,
depending on all the circumstances of the case (Hilal
v. the United Kingdom, no. 45276/99, § 60, ECHR 2001-II). Owing to
the absolute character of the right guaranteed, Article 3 of the Convention may
also apply where the danger emanates from persons or groups of persons who are
not public officials. However, it must be shown that the risk is real and that
the authorities of the receiving State are not able to obviate the risk by
providing appropriate protection (H.L.R.
v. France, judgment of 29 April 1997, Reports
1997-III, § 40).
The assessment of the existence of a real risk
must necessarily be a rigorous one (Chahal
v. the United Kingdom, judgment of 15 November 1996, Reports
1996-V, § 96; and Saadi
v. Italy, cited above, § 128). It is in principle for the applicant
to adduce evidence capable of proving that there are substantial grounds for
believing that, if the measure complained of were to be implemented, he would
be exposed to a real risk of being subjected to treatment contrary to Article 3.
In this respect, the Court acknowledges that, owing to the special situation in
which asylum seekers often find themselves, it is frequently necessary to give
them the benefit of the doubt when it comes to assessing the credibility of
their statements and the documents submitted in support thereof. However, when
information is presented which gives strong reasons to question the veracity of
an asylum seeker’s submissions, the individual must provide a satisfactory
explanation for the alleged discrepancies (see, among other authorities, Collins
and Akaziebie v. Sweden (dec.), no. 23944/05, 8 March 2007; and Hakizimana
v. Sweden (dec.), no. 37913/05, 27 March 2008).
In
cases concerning the expulsion of asylum seekers, the Court does not itself examine the actual asylum
applications or verify how the States honour their obligations under the Geneva
Convention relating to the status of refugees. It must be satisfied, though, that
the assessment made by the authorities of the Contracting State is adequate and
sufficiently supported by domestic materials as well as by materials
originating from other reliable and objective sources such as, for instance,
other contracting or non-contracting states, agencies of the United
Nations and reputable non-governmental organisations (NA. v. the
United Kingdom, no. 25904/07, § 119, 17 July 2008).
The Court notes that a general situation of
violence will not normally in itself entail a violation of Article 3 in the
event of an expulsion (H.L.R. v. France,
cited above, § 41). However, the Court has never excluded the possibility that the
general situation of violence in a country of destination may be of a sufficient
level of intensity as to entail that any removal to it would necessarily breach
Article 3 of the Convention. Nevertheless, the Court would adopt such an
approach only in the most extreme cases of general violence, where there is a
real risk of ill-treatment simply by virtue of an individual being exposed to
such violence on return (NA. v. the United Kingdom, cited above, § 115).
(b) The risk facing the applicant upon return
Turning to the circumstances of the present
case, the Court first notes that the applicant was heard by both the Migration
Board and the Migration Court, that his claims were carefully examined by these
instances and that they delivered decisions containing extensive reasons for their
conclusions.
While the international reports on Iraq attest to a continued difficult situation, including indiscriminate and deadly attacks
by violent groups, discrimination as well as heavy-handed treatment by
authorities, it appears that the overall situation is slowly improving. In the
case of F.H. v. Sweden (no. 32621/06, § 93, 20 January 2009), the Court,
having at its disposal information material up to and including the year 2008,
concluded that the general situation in Iraq was not so serious as to cause, by
itself, a violation of Article 2 or 3 of the Convention in the event of a
person’s return to that country. Taking into account the international and
national reports available today, the Court sees no reason to alter the
position taken in this respect four years ago. It must therefore be determined
whether the applicant’s personal situation is such as to expose him to a real
and personal risk of treatment contrary to Article 2 or 3 if sent back to Iraq.
The Court acknowledges that it is often
difficult to establish, precisely, the pertinent facts in cases such as the
present one. It accepts that, as a general principle, the national authorities
are best placed to assess the credibility of the case since it is they who have
had an opportunity to see, hear and assess the demeanour of the individuals
concerned (see R.C. v. Sweden, no. 41827/07, § 52, 9 March 2010). In this respect, the Court notes that the Migration Court did not question the applicant’s story as such. The Court finds no reason to
hold differently.
The Court considers that the events that led the
applicant to leave Iraq, in particular the killing of the woman and the
subsequent threats made against him, strongly indicate that he would be in
danger upon return to his home town, all the more so considering the numerous
commentators stressing the gravity of honour-related violence in Iraq (see
country information above). In the Court’s view, there is a real risk that the woman’s
relatives would try to seek revenge in order to uphold their perception of
honour, if the applicant were to be returned to his home town.
The question therefore arises whether the
applicant can be expected to avail himself of the authorities’ protection. In
this connection, the Court notes that the Government stressed that the
applicant had not put forward any evidence to support his claim that he had
tried to resolve the matter via mediation. However, this cannot be decisive for
the Court’s assessment because it cannot reasonably be held against the
applicant that he did not avail himself of private mediation as a way of
solving the conflict. What can be expected of him is to have turned to the authorities
if indeed that option was reasonable. Here, the Court notes that, according to
the applicant, his family did report the incident to the police, but the
investigation did not lead to any results.
The Court does not find that the evidence
supports the Government’s point of view that it would be possible for the
applicant to receive protection from the authorities in his home region. On the
contrary, the above mentioned country information indicates that persons who are
at risk of being subjected to honour-related crimes in Iraq might not receive effective protection from the authorities. For example, the Iraqi penal code
allows for lenient punishments for “honour killings” and such crimes are
reported frequently to be committed with impunity, given the high level of
social acceptance of this type of crime, including among law enforcement
officials.
Against this background, there is a real risk
that the applicant would be unable to avail himself of the authorities’
protection in his home town.
(c) The possibility of internal relocation
The Court reiterates that Article 3 does not, as
such, preclude Contracting States from placing reliance on the existence of an
internal flight or relocation alternative in their assessment of an individual’s
claim that a return to the country of origin would expose him or her to a real
risk of being subjected to treatment proscribed by that provision. However, the
Court has held that reliance on such an alternative does not affect the
responsibility of the expelling Contracting State to ensure that the applicant
is not, as a result of its decision to expel, exposed to treatment contrary to
Article 3. Therefore, as a precondition of relying on an internal flight or
relocation alternative, certain guarantees have to be in place: the person to
be expelled must be able to travel to the area concerned, gain admittance and
settle there, failing which an issue under Article 3 may arise, the more so if
in the absence of such guarantees there is a possibility of his or her ending
up in a part of the country of origin where there is a real risk of ill-treatment
(Sufi and Elmi v. the United Kingdom, nos. 8319/07 and 11449/07, § 266,
28 June 2011, with further references).
The Government pointed to the Kurdistan Region
as a possible internal flight alternative. The applicant, who is neither a Kurd
nor a Christian and, apparently, does not have any connections in the region,
disputed that he would be able to enter that region. While not disregarding the
obvious difficulties for people involved in honour-related conflicts in the
KRI, the Court considers that it is not necessary to examine whether the applicant
would be able to settle in that region since, as will be elaborated below, it is of the opinion that he would be able to relocate to other regions in Iraq.
To begin with, the Court notes that the
incidents involving the applicant date back several years. Whilst acknowledging
the possible long duration of conflicts such as the present one, the Court
nevertheless finds it reasonable to assume that the passing of time has to some
degree reduced the threat against the applicant.
More importantly, the Court is not convinced
that the material before it supports the applicant’s claim that the woman’s
relatives have the means and connections to find him wherever in Iraq he might be sent. The same holds true for his claim that he would be forced to submit
documents to local authorities which would inevitably lead to his being found.
Here, the Court first observes that the available general information suggests
that tribes and clans are region-based powers. Thus, in many cases, a person
who is persecuted by a family or clan can be safe in another part of the
country. In this connection, it is also of importance to note that the
influence and power of the tribes and clans differ. One factor possibly
weighing against the reasonableness of internal relocation is that a person is
persecuted by a powerful clan or tribe with influence at governmental level. However,
if the clan or tribe in question is not particularly influential, an internal
flight alternative might be reasonable in many cases. As regards the family in
question, there is no evidence to support the applicant’s claim that it is
powerful and has links to the authorities and militia. The applicant has not
put forward any documentary evidence to support his claim in this regard, nor
has he given any detailed information regarding the woman’s relatives and their
alleged position in Iraqi society.
The Court has had further regard to the fact that
the applicant is a Sunni Muslim. As noted above (§ 47), the general situation
of instability and violence in Iraq is not of such severity that it may be said
that the applicant would be exposed to a real risk of ill-treatment simply by
being returned there. Furthermore, while acknowledging the problem of sectarian
violence in Iraq (see, for instance the UNHCR Guidelines, § 26 above), there is
no indication that it would be impossible or even particularly difficult for
Sunni Muslims - comprising a sizeable group, reportedly making up one third of
the country’s population - to find a place to settle where they would
constitute a majority or, in any event, be able to live in relative safety.
Consequently, the fact that the applicant is a Sunni Muslim would not as such
expose him to a real risk of treatment contrary to Article 2 or 3 of the
Convention.
Internal relocation inevitably involves certain
hardship, not least in a tribal-based society such as Iraq. Nevertheless, having regard to what has been stated above, there is no indication that the
applicant would be unable to find a relocation alternative outside his home
region where the living conditions would be reasonable for him. In this
connection, the Court notes that he is a relatively young man without any
apparent health problems.
(d) Conclusion
Thus, the Court concludes that substantial
grounds for believing that the applicant would be exposed to a real risk of
being subjected to treatment contrary to Article 2 or 3 of the Convention if
deported to Iraq have not been shown in the present case. Accordingly, the
implementation of the deportation order against him would not give rise to a
violation of these provisions.
II. RULE 39 OF THE RULES OF COURT
The Court points out that, in accordance with
Article 44 § 2 of the Convention, the present judgment will not become final
until (a) the parties declare that they will not request that the case be
referred to the Grand Chamber; or (b) three months after the date of the
judgment, if referral of the case to the Grand Chamber has not been requested;
or (c) the Panel of the Grand Chamber rejects any request to refer under
Article 43 of the Convention.
It considers that the indication made to the
Government under Rule 39 of the Rules of Court (see above § 4) must
continue in force until the present judgment becomes final or until the Court
takes a further decision in this connection.
FOR THESE REASONS, THE COURT
1. Declares unanimously the application
admissible;
2. Holds by five votes to two that the applicant’s deportation to Iraq would not be in violation of
Article 2 or 3 of the Convention;
3. Decides unanimously to continue to
indicate to the Government under Rule 39 of the Rules of Court that it is
desirable in the interests of the proper conduct of the proceedings not to deport
the applicant until such time as the present judgment becomes final or until
further order.
Done in English, and notified in writing on 27 June 2013,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Claudia
Westerdiek Mark
Villiger
Registrar President
In accordance with Article 45 § 2 of the Convention and
Rule 74 § 2 of the Rules of Court, the separate opinion of Judge Power-Forde
joined by Judge Zupančič is annexed to this judgment.
M.V.
C.W.
DISSENTING OPINION OF JUDGE POWER-FORDE
JOINED BY JUDGE ZUPANČIČ
Although the applicant is not a member
of the Christian minority in Iraq, nevertheless, for the same reasons of
principle as those set out in my dissenting opinion in the case of M.Y.H.
and Others v. Sweden, I voted against the majority in finding that Article
3 would not be breached in the event that the deportation order made in respect
of this applicant were to be executed.
My dissent is based on the failure of the majority to test
whether the requisite guarantees as required by the Court’s case law prior to a
deportation based on internal flight options have been established in this
case.
The majority accepts that, in view of the passage of time since
the date of the attacks upon the applicant, it would be ‘reasonable’ to assume
that the applicant is no longer at the same risk of ill-treatment by members of
his former fiancée’s family (§36). The perpetrators of the crimes visited upon
the applicant’s fiancée cannot be considered as ‘reasonable’ people and, to my
mind, it cannot be assumed that the passage of time has abated their desire for
revenge.
Furthermore, apart from the personal threat to the individual
it is clear on the evidence adduced that he will not be accepted in the Kurdish
region. As noted in §35 of the Court’s Judgment in MYH and Others v Sweden
there is confirmation from the Joint Finnish/Swiss Fact-Finding Mission that “single
male Sunni Arabs without a sponsor in the KRG area are refused”.
The applicant being a single male Sunni without a sponsor
clearly comes within this category. The question arises as to the precise place
of safety to which it is proposed to deport him. The guarantees required under
the Court’s case law on internal flight options necessitate that the place of
safety be identified by the deporting State so that the risks in terms of
transit thereto and admittance and settlement therein may be assessed.
The majority refers only to the fact that there is no indication
that it would be impossible for him “to find a place to settle” (§58)
outside his home region. When the life and safety of a person is at risk, such
vagueness is unacceptable, particularly given the current situation in Iraq.
Absent knowledge of the proposed place of safety, the Court is precluded from
being assured that the guarantees as to the applicant’s safe transit, actual
admittance and capacity to settle in the proposed relocation area have been
met.
