ECtHR – J.K. v. and Others v. Sweden, Application No. 59166/12, 23 August 2016
| Country of applicant: | Iraq |
| Court name: | European Court of Human Rights, Grand Chamber |
| Date of decision: | 23-08-2016 |
| Citation: | ECtHR – J.K. v. and Others v. Sweden, Application No. 59166/12, 23 August 2016 |
Keywords:
| Keywords |
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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." |
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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. |
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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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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. |
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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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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. |
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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 return of the applicants to Iraq violates Article 3 ECHR as there is a real risk of ill-treatment based on their personal circumstances as a targeted group and the Iraqi authorities’ diminished ability to protect them.
Facts:
Three Iraqi nationals, a married couple and their son, applied for asylum in Sweden in 2010. They claimed to fear persecution by al-Qaeda since the husband had run a business at an American army camp with exclusively American clients. After he had survived a murder attempt by al-Qaeda, he was hospitalised for three months. In 2005, a bomb was placed next to the family’s house, but it was detected and the perpetrator confessed being paid by al-Qaeda to watch the applicants. The daughter was shot and killed in Baghdad in 2008.
The applicants’ asylum applications were rejected and Sweden ordered their return to Iraq. The applicants submitted that their return to Iraq would violate Article 3 ECHR, and interim measures to prevent their deportation were granted under a Rule 39 in September 2012.
On 25 August 2015 the applicants requested the referral of the case to the Grand Chamber. The applicants held that, in the event of their return to Iraq, they risked persecution by al-Qaeda, and their removal to Iraq by Sweden would entail a violation of Article 3 ECHR.
Decision & reasoning:
The Grand Chamber gave its ruling on 23 August 2016. In the assessment, the Court took account of the general principles applicable to expulsion cases, such as ex nunc evaluation of the circumstances of the case, distribution of the burden of proof and past ill-treatment as an indication of risk.
The Court accepts that the general security situation in Iraq did not as such prevent the removal of the applicants to their country of origin. Therefore, it assesses whether the applicants’ personal circumstances are such that they would face a real risk of treatment contrary to Article 3 if returned to Iraq.
According to the Court, the Iraqi family had been exposed to the most serious forms of abuses by al-Qaeda from 2004 until 2008, which is a strong indication that they would continue to be at risk from non-State actors in Iraq. Moreover, the Court holds that the first applicant should be considered as a member of a targeted group and notes that it appears 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 have been and continue to be targeted by al-Qaeda and other groups. In this connection attention must also be paid to the fact that the first applicant was ill-treated until 2008 and his contacts with the American forces were highly visible as his office was situated at the United States military base.
The Court further observes that the security situation in Iraq had severely deteriorated since 2011 and 2012. As a result of the increase in sectarian violence and ISIS attacks, most areas are no longer under effective control by the Iraqi government. The Iraqi authorities would therefore be unable to adequately protect its citizens. The Court is therefore not convinced that the Iraqi State would be able to provide the applicants with effective protection against threats by al-Qaeda or other private groups in the current situation.
In light of the particular circumstances of this case, the Court holds that the first applicant and the two other members of his family who are applicants in the case would face a real risk of continued persecution by non-State actors if returned to Iraq.
Outcome:
The ECtHR finds that the order for the applicants’ deportation to Iraq would give rise to a violation of Article 3 of the Convention. It holds that this finding constitutes in itself sufficient just satisfaction for any non-pecuniary damage sustained by the applicants.
Subsequent proceedings:
The ECtHR finds that the order for the applicants’ deportation to Iraq would give rise to a violation of Article 3 of the Convention. It holds that this finding constitutes in itself sufficient just satisfaction for any non-pecuniary damage sustained by the applicants.
Relevant International and European Legislation:
Cited National Legislation:
| Cited National Legislation |
| Sweden - Swedish Aliens Act (Utlänningslagen |
| Act no. 2005:716) |
Cited Cases:
Follower Cases:
Other sources:
UNHCR Note on Burden and Standard of Proof in Refugee Claims
UNHCR Handbook and Guidelines on Procedures and Criteria for Determining Refugee Status
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)