ECtHR - J.K. and Others v. Sweden, Application no. 59166/12
| Country of applicant: | Iraq |
| Court name: | European Court of Human Rights (Fifth Section) |
| Date of decision: | 04-06-2015 |
| Citation: | J.K. and Others v. Sweden, Application no. 59166/12 |
Keywords:
| Keywords |
|
Burden of proof
Description
"In the migration context, a non-national seeking entry into a foreign State must prove that he or she is entitled to enter and is not inadmissible under the laws of that State. In refugee status procedures, where an applicant must establish his or her case, i.e. show on the evidence that he or she has well-founded fear of persecution. Note: A broader definition may be found in the Oxford Dictionary of Law." |
|
Country of origin information
Description
"Information used by the Member States authorities to analyse the socio-political situation in countries of origin of applicants for international protection (and, where necessary, in countries through which they have transited) in the assessment, carried out on an individual basis, of an application for international protection.” It includes all relevant facts as they relate to the country of origin at the time of taking a decision on the application, obtained from various sources, including the laws and regulations of the country of origin and the manner in which they are applied, regulations of the country of origin, plus general public sources, such as reports from (inter)national organisations, governmental and non-governmental organisations, media, bi-lateral contacts in countries of origin, embassy reports, etc. This information is also used inter alia for taking decisions on other migration issues, e.g. on return, as well as by researchers. One of the stated aims of the European Asylum Support Office (EASO) is to progressively bring all activities related to practical cooperation on asylum under its roof, to include the collection of Country of Origin Information and a common approach to its use. |
|
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. |
|
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." |
|
Internal protection
Description
Where in a part of the country of origin there is no well-founded fear of being persecuted or no real risk of suffering serious harm and the applicant can reasonably be expected to stay in that part of the country. |
|
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." |
|
Standard of proof
Description
The degree or level of persuasiveness of the evidence required in a specific case. For example, in the refugee context, ‘well-founded’ is a standard of proof when assessing the fear of persecution. |
|
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 proposed deportation of the applicants to Iraq would not violate Article 3 ECHR, either based on the general situation of violence in Iraq, or on the basis of past serious violence and threats that occurred in 2008.
Facts:
The applicants, Iraqi nationals, are a married couple and their son who applied for asylum in Sweden. The basis of their asylum claim was a fear of persecution by al-Qaeda.
The husband had run a business since the 1990s at an American army camp with exclusively American clients. He survived a murder attempt by al-Qaeda, but was hospitalised for three months. His brother was kidnapped by the group the following year and was threatened due to the applicant’s ‘collaboration’ with the Americans. In 2005, a bomb was placed next to the applicants’ house but it was detected and the perpetrator confessed being paid by al-Qaeda to watch the applicants. The family moved to Syria for a number of years during which al-Qaeda destroyed their home and business stocks. They did not seek protection from the domestic authorities as they lacked the ability to protect them and al-Qaeda collaborated with the authorities.
After returning to Baghdad in 2008, their daughter was shot at and killed and business stocks were attacked numerous times. The husband ceased his business activities and the family moved around to avoid detection.
They claimed asylum in Sweden in 2011 which was rejected by the Migration Board of Sweden who found that although their account was credible; after ending collaboration with the Americans in 2008 they were able to live in Baghdad for two years without being victim of any attacks. In addition, they could seek domestic authorities’ protection as al-Qaeda infiltration had greatly diminished.
On appeal to the Migration Court, they produced further evidence indicating that a masked terrorist group had come to search for the husband in 2011, that their house had been burned down, and that the Iraqi administration was corrupt and infiltrated by al-Queda. Their appeal was rejected and so was their request for re-examination.
The applicants submitted that their return to Iraq would violate Article 3 ECHR, and interim measures to prevent their deportation were granted under Rule 39 in September 2012.
Decision & reasoning:
The Court considered the general situation of violence in Iraq, citing various international reports. It found that despite the significant worsening in the situation since the ISIS offensive in northern Iraq in June 2014, none of these reports showed reason to depart from its previous findings that the general situation in Iraq was not so serious as to cause by itself, a violation of Article 3 upon return.
Turning to the specific circumstances of the applicants, it agreed with the Swedish authorities that they had not substantiated allegations of being threatened or persecuted by al-Qaeda after 2008 and also pointed out some credibility issues in their allegations. In view of the fact that the latest substantiated attack against the applicant was in 2008, and that the family had stayed in Baghdad after this without being subject to further threats, it concluded that there was not sufficient evidence to conclude that the applicants would face a real risk of being subjected to treatment contrary to Article 3 of the Convention upon return to Iraq.
Outcome:
A majority of 5 to 2 found that implementation of the deportation order against the applicants would not give rise to a violation of Article 3 of the Convention.
Subsequent proceedings:
On 25 August 2015 the applicants requested the referral of the case to the Grand Chamber, which subsequently accepted the request. The Grand Chamber found on the 23 August 2016, ten votes to seven, that if the applicants were returned to Iraq they would run a real risk of being exposed to treatment contrary to Article 3 ECHR. Such a violation would ensue on account of their personal circumstances as a targeted group and the Iraqi authorities’ diminished ability to protect them.
Observations/comments:
Judge Zupančič dissented from the majority finding that there was a violation of Article 3, in a statement that Judge de Gaetano agreed with.
He opined that the assessment of probabilities in law was necessarily subjective and speculative but that in asylum law presumptions such as the burden of proof should be high, given the severe risks faced by innocents if refouled. He emphasised that “the evidentiary burden and the risk of non-persuasion, once the prima facie case has been established in favour of the applicants, lies squarely on the Government.” In this case, the applicants’ accepted account of a direct murder attempt on the husband and the death by shooting of their daughter established a prima facie case for asylum, thus the evidentiary burden fell on the Swedish authorities to prove that the applicants would not be subjected to Article 3 ill-treatment on return. He criticised the approach of the Swedish authorities in finding that lack of credibility of the applicants on some issues could nullify the evidentiary value of other facts.
Relevant International and European Legislation:
Cited National Legislation:
Cited Cases:
| Cited Cases |
| ECtHR - Collins and Akaziebe v Sweden (Application no. 23944/05) |
| ECtHR - Hilal v United Kingdom, Application no. 45276/99 |
| ECtHR - Mamatkulov Askarov v Turkey, Applications nos. 46827/99 and 46951/99 |
| 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 - Abdulaziz, Cabales and Balkandali v. the United Kingdom, Application Nos. 9214/80, 9473/81 and 9474/81 |
| 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 - F.H. v. Sweden, Application no. 32621/06 |
| ECtHR - A. A. M. v. Sweden, Application No. 68519/10 |
| ECtHR - H.L.R. v. France, Application no. 24573/94 |
Other sources:
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)