ECtHR - T.K.H. v. Sweden, Application No. 1231/11
| Country of applicant: | Iraq |
| Court name: | Fifth Section; European Court of Human Rights |
| Date of decision: | 19-12-2013 |
| Citation: | Application No. 1231/11 |
Keywords:
| Keywords |
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Credibility assessment
Description
Assessment made in adjudicating an application for a visa, or other immigration status, in order to determine whether the information presented by the applicant is consistent and credible. |
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Inhuman or degrading treatment or punishment
Description
A form of serious harm for the purposes of the granting of subsidiary protection. The Trial Chamber of the International Criminal Tribunal for the Former Yugoslavia in Celibici defined cruel or inhuman treatment as ‘an intentional act or omission, that is an act which, judged objectively, is deliberate and not accidental, that causes serious mental or physical suffering or injury or constitutes a serious attack on human dignity.’ “Ill-treatment means all forms of cruel, inhuman or degrading treatment or punishment, including corporal punishment, which deprives the individual of its physical and mental integrity." |
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Previous persecution
Description
"The fact that an applicant has already been subject to persecution or serious harm or to 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.” “The concept of previous persecution also deals with the special situation where a person may have been subjected to very serious persecution in the past and will not therefore cease to be a refugee, even if fundamental changes have occurred in his country of origin. It is a general humanitarian principle and is frequently recognized that a person who--or whose family--has suffered under atrocious forms of persecution should not be expected to repatriate. Even though there may have been a change of regime in his country, this may not always produce a complete change in the attitude of the population, nor, in view of his past experiences, in the mind of the refugee." |
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Relevant Facts
Description
An assessment of an application for international protection must take into account all relevant facts, including those relating to: the country of origin at the time of taking a decision on the application, including laws and regulations of the country of origin and the manner in which they are applied; relevant statements and documentation presented by the applicant; the individual position and personal circumstances of the applicant; and other matters set out in Article 4 of the Qualification Directive |
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Well-founded fear
Description
One of the central elements of the refugee definition under Article 1A ofthe1951 Refugee Convention is a “well-founded fear of persecution”: "Since fear is subjective, the definition involves a subjective element in the person applying for recognition as a refugee. Determination of refugee status will therefore primarily require an evaluation of the applicant's statements rather than a judgement on the situation prevailing in his country of origin. To the element of fear--a state of mind and a subjective condition--is added the qualification ‘well-founded’. This implies that it is not only the frame of mind of the person concerned that determines his refugee status, but that this frame of mind must be supported by an objective situation. The term ‘well-founded fear’ therefore contains a subjective and an objective element, and in determining whether well-founded fear exists, both elements must be taken into consideration." |
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Membership of a particular social group
Description
One of the grounds of persecution specified in the refugee definition per Article 1A ofthe1951 Refugee Convention. According to the Qualification Directive, membership of a particular social group means members who share an innate characteristic, or a common background that cannot be changed, or share a characteristic or belief that is so fundamental to identity or conscience that a person should not be forced to renounce it, and that group has a distinct identity in the relevant country, because it is perceived as being different by the surrounding society. Depending on the circumstances in the country of origin, a particular social group might include a group based on a common characteristic of sexual orientation. Sexual orientation cannot be understood to include acts considered to be criminal in accordance with national law of the Member States: Gender related aspects might be considered, without by themselves alone creating a presumption for the applicability of this concept. |
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Individual threat
Description
An individual threat to a civilian's life or person must be proven in order to establish the serious harm required before an applicant will be eligible for subsidiary protection status on the grounds set out in QD Art. 15(c). “Risks to which a population of a country or a section of the population is generally exposed do normally not create in themselves an individual threat which would qualify as serious harm.” |
Headnote:
The seven year time lapse since the Sunni Muslim Applicant’s former service in the Iraqi army, no evidence of future risk arising from previous injuries, and no medical reasons preventing return, led the majority to find that return to Iraq would not violate the applicants rights under Articles 2 or 3.
Facts:
The Applicant, a Sunni Muslim from Iraq, faced deportation from Sweden back to Iraq, on account of his asylum claim having been rejected in 2010, three years after his arrival. 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.He fled Iraq and relies on his rights under Articles 2 and 3 to resist his return.
Decision & reasoning:
The Court first 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.
No violation of Article 2 or 3 was found in relation to T.K.H. Regarding the Applicant’s particular situation, 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.
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, and the overall plausibility of his account.
Outcome:
No risk of violation of Articles 2 or 3.
Relevant International and European Legislation:
Cited National Legislation:
Cited Cases:
| Cited Cases |
| ECtHR - Collins and Akaziebe v Sweden (Application no. 23944/05) |
| ECtHR - F.H. v Sweden (Application no. 32621/06) |
| ECtHR - Hilal v United Kingdom, Application no. 45276/99 |
| ECtHR - Mamatkulov Askarov v Turkey, Applications nos. 46827/99 and 46951/99 |
| ECtHR - N v United Kingdom (Application no. 26565/05) |
| ECtHR - NA v UK, Application No. 25904/07 |
| ECtHR - Üner v. the Netherlands [GC], Application No. 46410/99 |
| ECtHR - Boujlifa v. France, 21 October 1997, § 42, Reports of Judgments and Decisions 1997-VI |
| ECtHR - Kaboulov v. Ukraine, Application No. 41015/04 |
| ECtHR - Abdulaziz, Cabales and Balkandali v. the United Kingdom, Application Nos. 9214/80, 9473/81 and 9474/81 |
| UK - HM and others (Article 15(c)) Iraq CG, [2012] UKUT 00409 (IAC) |
| ECtHR - P.Z. and Others and B.Z. v. Sweden, Application Nos. 68194/10 and 74352/11 |
| ECtHR - Hakizimana v. Sweden, Application No. 37913/05 |
| ECtHR - A.G.A.M., D.N.M., M.K.N., M.Y.H. and Others, N.A.N.S., N.M.B., N.M.Y. and Others and S.A. v. Sweden, Application Nos. 71680/10, 28379/11, 72413/10, 50859/10, 68411/10, 68335/10, 72686/10 and 66523/10 |
| ECtHR - T.A. v. Sweden, Application No. 48866/10 |
Follower Cases:
| Follower Cases |
| ECtHR - A.A. and Others v. Sweden, Application No. 34098/11 |
Other sources:
- 31 May 2012 United Nations High Commissioner for Refugees (UNHCR) Eligibility Guidelines for Assessing the International Protection Needs of Asylum-Seekers from Iraq;
- Report on Human Rights in Iraq: July – December 2012, published in June 2013, Human Rights Office of the United Nations Mission for Iraq (UNAMI);
- UK Border Agency Iraq Operational Guidance Note of December 2012.