J.K. and Others v. Sweden [GC]

Information Note on the Court’s case-law 199

August-September 2016

J.K. and Others v. Sweden [GC] - 59166/12

Judgment 23.8.2016 [GC]

Article 3

Expulsion

Proposed deportation to Iraq of family threatened by al-Qaeda: deportation would constitute a violation

Facts – The applicants, a married couple and their son, were Iraqi nationals. In 2010 and 2011 respectively they applied for asylum in Sweden on the grounds that they risked persecution in Iraq by al-Qaeda as the first applicant had worked for American clients and operated out of a US armed forces base in Iraq for many years. He and his family had been the subject of serious threats and violence from al-Qaeda from 2004 to 2008. Attempts had been made on their lives, the first applicant had twice been wounded, his brother had been kidnapped in 2005, and his daughter killed in October 2008 when the car in which she and the first applicant were travelling was shot at. At that point the first applicant stopped working and the family moved to a series of different locations in Baghdad. Although his business stocks were attacked four or five times by al-Qaeda members, the first applicant stated that he had not received any personal threats since 2008 as the family had repeatedly moved around. The first applicant left Iraq in 2010 and was followed by the second and third applicants in 2011.

The Swedish Migration Board rejected their application for asylum. Its decision was upheld by the Migration Court in 2012 on the grounds that the criminal acts of al-Qaeda had been committed several years before and the first applicant no longer had any business with the Americans. In the event that a threat still remained, it was probable that the Iraqi authorities had the will and capacity to protect the family.

In a judgment of 4 June 2015 (see Information Note 189) a Chamber of the European Court held, by five votes to two, that the implementation of the deportation order against the applicants would not give rise to a violation of Article 3 of the Convention. On 19 October 2015 the case was referred to the Grand Chamber at the applicants’ request.

Law – Article 3: The Court reiterated that the expulsion of an alien by a Contracting State could give rise to an issue under Article 3, and hence engage the responsibility of that State under the Convention, where substantial grounds had 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 destination country. The assessment of whether a real risk of proscribed treatment existed had to be made in the light of the present-day situation and had to focus on the foreseeable consequences of the applicant’s removal to the country of destination, in the light of the general situation there and of his or her personal circumstances.

(a) General situation – The Court accepted that although the security situation in Baghdad City had deteriorated, the intensity of violence had not reached a level which would constitute, as such, a real risk of treatment contrary to Article 3. It went on to assess whether the applicants’ personal circumstances were such that they would face such a risk if they were expelled to Iraq.

(b) Personal circumstances – The Court noted that, as asylum-seekers were normally the only parties able to provide information about their own personal circumstances, the burden of proof should in principle lie on them to submit, as soon as possible, all evidence relating to their individual circumstances needed to substantiate their application for international protection. However, it was also important to take into account all the difficulties which asylum-seekers could encounter abroad when collecting evidence.

Specific issues arose when an asylum-seeker alleged that he or she had been ill-treated in the past, since past ill-treatment could be relevant for assessing the level of risk of future ill-treatment. Having regard to its previous case-law*, Article 4 § 4 of the EU Qualification Directive** and paragraph 19 of the UNHCR Note on Burden and Standard of Proof in Refugee Claims***, the Court considered that the fact of past ill-treatment provided a strong indication of a future, real risk of treatment contrary to Article 3 in cases in which an applicant had made a generally coherent and credible account of events that was consistent with information from reliable and objective sources about the general situation in the country at issue. In such circumstances, it would be for the Government to dispel any doubts about that risk.

In the applicants’ case, the Court saw no reason to cast doubt on the Migration Agency’s findings that the family had been exposed to the most serious forms of abuse by al-Qaeda from 2004 until 2008 or to question the applicants’ allegation that indirect threats against them and attacks on the first applicant’s business stock had continued after 2008 and that they had only escaped further abuse by going into hiding as they were unable to avail themselves of the Iraqi authorities’ protection as the latter were infiltrated by al-Qaeda. The applicants’ account of events between 2004 and 2010 was generally coherent and credible and consistent with relevant country-of-origin information available from reliable and objective sources. There was thus a strong indication that they would continue to be at risk from non-State actors in Iraq. It was therefore for the respondent Government to dispel any doubts about that risk.

It appeared 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 had been and continued to be targeted by al-Qaeda and other groups. The first applicant had belonged to the group of persons systematically targeted for their relationship with American armed forces and his contacts with the American forces had been highly visible as his office was situated at the United States military base. The Court therefore found that all three applicants would face a real risk of continued persecution by non-State actors if returned to Iraq.

As to the ability of the Iraqi authorities to provide them with protection in the event of a return, the Iraqi authorities’ capacity to protect their people had to be regarded as diminished. Although the current level of protection might still be sufficient for the general public in Iraq, the situation was different for individuals, such as the applicants, who were members of a targeted group. The Court was therefore not convinced, in the particular circumstances of the applicants’ case, that the Iraqi State would be able to provide them with effective protection against threats by al-Qaeda or other private groups in the current situation.

The cumulative effect of the applicants’ personal circumstances and the Iraqi authorities’ diminished ability to protect them therefore created a real risk of ill-treatment in the event of their return to Iraq.

Conclusion: deportation would constitute a violation (ten votes to seven).

Article 41: finding of a violation constituted sufficient just satisfaction in respect of non-pecuniary damage; claim in respect of pecuniary damage dismissed.

* The Court cited R.C. v. Sweden, 41827/07, 9 March 2010, Information Note 128; R.J. v. France, 10466/11, 19 September 2013; and  D.N.W. v. Sweden, 29946/10, 6 December 2012.

** Article 4 § 4 of Council Directive 2004∕83∕EC of 29 April 2004 on minimum standards for the qualification and status of third country nationals or stateless persons as refugees or as persons who otherwise need international protection and the content of the protection granted (as recast by Directive 2011∕95∕EU of 13 December 2011) provides: “the fact that an applicant has already been subject to persecution or serious harm, or direct threats of such persecution or such harm, is a serious indication of the applicant’s well-founded fear of persecution or real risk of suffering serious harm, unless there are good reasons to consider that such persecution or serious harm will not be repeated”.

*** Paragraph 19 states: “While past persecution or mistreatment would weigh heavily in favour of a positive assessment of risk of future persecution, its absence is not a decisive factor. By the same token, the fact of past persecution is not necessarily conclusive of the possibility of renewed persecution, particularly where there has been an important change in the conditions in the country of origin”.

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This summary by the Registry does not bind the Court.

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