EHRM, 23-08-2016, nr. 59166/12

The case originated in an application (no. 59166/12) 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 three Iraqi nationals, Mr J.K. and his wife and son (‘the applicants’), on 13 September 2012. The President of the Grand Chamber upheld the applicants' request not to have their names disclosed (Rule 47 § 4 of the Rules of Court).

The applicants, who had been granted legal aid, were represented by Ms C. Skyfacos, a lawyer practising in Limhamn. The Swedish Government (‘the Government’) were represented by their Agent, Mr A. Rönquist, of the Ministry for Foreign Affairs.

The applicants alleged, in particular, that their removal to Iraq would entail a violation of Article 3 of the Convention.

On 18 September 2012 the President of the Third Section of the Court decided to apply Rule 39 of the Rules of Court, indicating to the Government that the applicants should not be deported to Iraq for the duration of the proceedings before the Court. The application was thereafter allocated to the Fifth Section of the Court (Rule 52 § 1). On 4 June 2015 a Chamber of that Section, composed of Mark Villiger, President, Angelika Nußberger, Boštjan M. Zupančič, Vincent A. De Gaetano, André Potocki, Helena Jäderblom and Aleš Pejchal, judges, and also of Milan Blaško, Deputy Section Registrar, delivered its judgment. It decided unanimously to declare the complaint concerning Article 3 of the Convention admissible, and held, by five votes to two, that the implementation of the deportation order in respect of the applicants would not give rise to a violation of Article 3. The partly dissenting opinion of Judge Zupančič and a statement of dissent by Judge De Gaetano were annexed to the judgment. On 25 August 2015 the applicants requested the referral of the case to the Grand Chamber in accordance with Article 43 of the Convention. On 19 October 2015 the panel of the Grand Chamber granted that request.

The composition of the Grand Chamber was determined according to the provisions of Article 26 §§ 4 and 5 of the Convention and Rule 24. At the final deliberations, Síofra O'Leary, substitute judge, replaced András Sajó, who was prevented from sitting (Rule 24 § 3).

The applicants and the Government each filed further written observations (Rule 59 § 1) on the merits.

A hearing took place in public in the Human Rights Building, Strasbourg, on 24 February 2016 (Rule 59 § 3).

There appeared before the Court:

The Court heard addresses by Mr Rönquist, Ms Skyfacos and Ms Nilsson, as well as Mr Rönquist's reply to a question put by one of the judges.

Holds, by ten votes to seven, that if implemented, the order for the applicants' deportation to Iraq would give rise to a violation of Article 3 of the Convention;

Holds, by fifteen votes to two, that the Court's finding in respect of Article 3 constitutes in itself sufficient just satisfaction for any non-pecuniary damage sustained by the applicants;

Holds, by twelve votes to five,

Dismisses, unanimously, the remainder of the applicants' claim for just satisfaction.

Done in English and in French, and notified in writing on 23 August 2016, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Søren Prebensen

Deputy to the Registrar

Guido Raimondi

President

In accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of the Rules of Court, the following separate opinions are annexed to this judgment:

G.R.A.

S.C.P.

I agree with the way this judgment lays down the general principles governing expulsion cases under Article 3 of the Convention. I think it was high time, indeed, to do so. I also agree with the way in which these general principles were applied in the concrete circumstances of the case, leading to the finding of a potential violation.

I would add, however, the following. When dealing with asylum cases, our Court finds itself in a particularly delicate situation compared with the analysis it has to conduct in relation to other Convention-protected rights. This is linked to the fact that the Court has to conduct an ex nunc analysis of the situation in the country of destination. I fully agree with the need for such an analysis and I do not see any other possibility in a system aiming to offer effective and practical protection of the rights enshrined in the Convention. However, before deciding to conduct such an analysis and to proceed with the application of the general principles, as established in paragraphs 77–105 of this judgment, the Court should check whether the analysis conducted at national level in the particular case has been Convention compliant or not. By circumventing this check and avoiding giving a clear answer as to whether or not the national authorities have failed to do their job, I do not think that our Court helps them in applying the Convention standards at national level. While saying this, I do not rule out the possibility that the Court might deem it necessary to conduct an ex novo analysis itself, on account of a change of circumstances, after the national authorities have reached their conclusion.

Therefore, I would have preferred this judgment to have included another general principle after all those already set out, which would concern the test of the necessity of a new analysis of the case in Strasbourg. To my mind that test would be met only in two circumstances: first, when the national authorities have not conducted a Convention-compliant assessment of the concrete circumstances of the case and, second, when fundamental changes in circumstances, whether general or personal, require that, with a view to the effective protection of Article 3 rights, the Strasbourg Court should conduct a fresh analysis.

I would then have preferred the analysis of the specific circumstances of the case to start with the question whether the necessity test for a Strasbourg analysis has been met in this case. I respectfully consider that the majority have avoided giving a direct answer in that regard.1. I believe that in this case the first requirement of the necessity test has been met, in so far as the national authorities, and specifically the Migration Court as the court of last resort at national level, failed to meet the Convention standard. I state this with the utmost respect for the Swedish authorities and the remarkable work they do in dealing with all the asylum requests before them.

Under the Court's well-established case-law, ‘[t]he Court's examination of the existence of a risk of ill-treatment in breach of Article 3 at the relevant time must necessarily be a rigorous one in view of the absolute character of this provision and the fact that it enshrines one of the fundamental values of the democratic societies making up the Council of Europe’.2. This has rightly been confirmed in paragraph 86 of the judgment.

The Migration Court, in the applicants' case, concluded that ‘in the event that some threats should still exist, it appears likely that [in French ‘il était probable que’] the Iraqi law-enforcement authorities are both willing and able to offer the applicants the necessary protection’.3. In my opinion, this conclusion on the risk assessment does not comply with the test required by the Convention in asylum cases brought under Article 3. The likeliness or probability of the protection of an asylum seeker upon his or her return does not comply with the test of a rigorous examination of the applicants' allegations. When absolute rights protected by the Convention are at stake, the national authorities cannot discharge their obligations by concluding that it is likely that these rights will not be violated in the country of destination. The rigorous test requires that in their assessment the authorities should check whether there are substantial grounds to believe that there would be no real risk for the applicants' rights in the event of their return to Iraq. The wording used by the Swedish Migration Court does not convince me that the required rigour was applied in the examination of the applicants' case. For this reason, I think that an analysis by the Strasbourg Court should have been triggered and indeed was fully justified in this case.

I voted, albeit with some hesitation, with the majority in this case due to the particular features of the applicants' case as well as the general situation in Iraq and given the Court's obligation, pursuant to its Article 3 case-law, to engage in an ex nunc assessment of the risk which the applicants would face if returned to Iraq.

As Judge Zupančič indicated in his dissenting opinion at Chamber level, asylum cases like this one, when examined by the Court under Article 3, depend often, on the one hand, on geographically distant, historical events. On the other, they require the Court to craft prognostic judgments concerning what will or will not happen in the future if the applicants are returned to their country of origin.4.

Since I agree with most of the general principles outlined by the Grand Chamber judgment and support the conclusion of a violation, this concurring opinion is limited to highlighting some aspects of the majority judgment which risk creating unnecessary difficulties both for domestic asylum authorities and for the different sections of this Court called on to deal with Article 3 complaints introduced by failed asylum-seekers the subject of deportation orders.

Firstly, the Grand Chamber judgment in J.K. v. Sweden highlights a fault line running through the Court's current case-law on asylum and immigration, at least to the extent that that jurisprudence concerns member States, like Sweden, of the EU. At the heart of this case, as the majority judgment highlights (see paragraphs 85–102) is how the question of risk is to be assessed, with reference to Article 3, when it is established or accepted that the asylum-seeker has been the subject of past persecution or serious harm in the country to which the respondent State is seeking to return him. As a member State of the EU, Sweden is subject to the detailed rules of the Common European Asylum System and, within that context, the Qualification Directive.5. Despite the fact that the Swedish legislation interpreted and applied by the competent authorities transposes this detailed EU secondary legislation, the majority judgment proceeds as if this is an irrelevance, referring only to EU asylum law when selectively borrowing elements to set its own jurisprudential standard for the burden of proof (see further paragraph 7 below). Nowhere in the Grand Chamber judgment, not even in the paragraphs setting out domestic law (paragraphs 23–29 of the majority judgment), are the provisions of Swedish law which transposed the relevant provisions of the Qualification Directive, particularly Article 4, explained or reproduced.

I have stressed in a recent case on Article 5 of the Convention that the fact that a decision the subject of an application before this Court finds its origins in EU law is, of course, not a guarantee of Convention compatibility.6. Nevertheless, if this Court is to fulfil its European supervisory role in the field of fundamental rights, it is incumbent on it to engage with and understand the complex legislation which member States of the EU may, in certain distinct fields of law, be required to transpose. In Avotiņš v. Latvia, the Grand Chamber, in a spirit of complementarity, rightly enjoined the domestic courts of EU member States to examine, regardless of the mutual recognition mechanism established by EU law, any complaint which raises ‘a serious and substantiated complaint to the effect that the protection of a Convention right has been manifestly deficient’ where that situation cannot be remedied by EU law.7. In the same spirit, it is incumbent on this Court, when examining complaints with a heavy EU law component, to understand fully the legal framework with which it is confronted and on which the impugned decisions of the domestic authorities are based.

Lest this be read as a criticism aimed solely at this Court, I should stress it is not. It is essential that respondent Governments explain clearly, in cases where this arises, the nature and scope of the relevant provisions of national law and the EU law provisions which serve as their source or background. It is not for this Court to interpret them but it must understand them. Without this information, particularly in the field of immigration and asylum law, the Court is provided with an insufficient overview of the relevant legal framework with which domestic authorities and courts are working and the interrelationship between its component parts. This lack of clarity does not serve applicants, respondent Governments or the national asylum authorities called on to apply both the decisions of this Court and that of the Court of Justice in Luxembourg well. In the words of a domestic judge engaged in a recent Article 3 risk assessment similar to that at issue in the present case:

While the judge in question goes on to recognize that this Court's case-law does (generally) imply a rigourous and careful approach before concluding that deporting an individual would be a violation of Article 3 of the Convention, the message is clear: rigour and care are essential if our jurisprudence in this field is to be understood and followed.

Secondly, in seeking to clarify its case-law pursuant to Article 3 of the Convention on the general assessment of risk, past ill-treatment as an indication of future risk and the burden of proof in this context, the Grand Chamber has sought inspiration from notes and guidelines established by the UNHCR and the provisions of the Qualification Directive, in particular, Article 4. Yet, as Judge Ranzoni highlights in his dissenting opinion, it is not for the Grand Chamber to pick and choose preferred elements from either or both sources, leaving aside those elements which suit its judicial narrative less well and jettisoning all important context. The result is a well-intentioned but slightly cobbled together formula in paragraph 102 which competent authorities may have some difficulty with in practice. How is a national judge called on to apply Article 4(4) of the Qualification Directive via the prism of his or her transposing national legislation, while insuring compliance with the requirements of Article 3 of the Convention, to reconcile the ‘serious indication’ to which the former refers with the ‘strong indication’ which the Court now identifies as the relevant standard under Article 3? There is no explanation for this altered language. In addition, as regards paragraph 97, whatever about the UNHCR documents referred to, Article 4(5) of the Qualification Directive does not recognise, explicitly or implicitly, that the benefit of the doubt should be granted in favour of an individual seeking international protection. Article 4(5) states rather that where aspects of the applicant's statements are not supported by documentary evidence, those aspects shall not need confirmation where five clearly defined conditions are met. There is no need to reproduce all of those conditions in detail. Suffice it to say that by finding that asylum-seekers should be given the benefit of the doubt, without in anyway qualifying that statement with a general ‘in certain circumstances’ or ‘subject to certain conditions’, the Grand Chamber glosses over essential details and conditions built into the sources on which it claims to rely.9. In order to find a violation of Article 3 in the instant case, this muddying of legal waters was not necessary and, given that this is a Grand Chamber judgment, far from desirable.

Thirdly, it should be stressed that the majority judgment is to be welcomed to the extent that it systematizes some of the general principles to be applied by domestic authorities in Article 3 cases and, in addition, clarifies the nature of the ex nunc assessment the Court engages in pursuant to this provision (see paragraphs 77–90). Nevertheless, when it comes to applying those general principles to the facts of the instant case, some of the unnecessary weaknesses identified above in paragraphs 97 and 102 find their mirror image when it comes to application of the general principles in paragraph 114. Some of these weaknesses are highlighted in the joint dissenting opinion annexed to the majority judgment. While I would disagree with the latter in their alternative assessment of risk, or rather the lack thereof, I would certainly agree that it was unnecessary for the majority to rely on such reductive reasoning in this crucial paragraph. This case turned on the evidentiary burden which had to be discharged once it was accepted, as it was, that the applicant and his family had been the victims of serious persecution, resulting in death and serious injury, in Iraq and that significant parts of their account were credible. The Grand Chamber had to assess in this context whether, given past events, the probability that the Iraqi authorities would be both willing and able to protect the applicant, a former U.S. army collaborator, and his family was a sufficient basis to be able to deport them. Despite evidence that the applicant had participated in a TV debate in which he had criticised the authorities precisely on this point, the Migration Board refused to re-examine their case,10. a fact alone which could have been examined more closely by the Court in the light of its recent decision in F.G. v. Sweden.11. In the context of the Court's own ex nunc assessment, given the situation in Iraq and Baghdad mid-2016, it was possible to provide more than the bare statement in paragraph 114 to the effect that past ill-treatment by al-Qaeda allowed the Court to find ‘that there is a strong indication that they would continue to be at risk from non-State actors in Iraq’, referring in a circular manner in support of this statement to a previous paragraph under the general principles where this criterion of past ill-treatment in the assessment of future risk is enunciated. Again, the potential violation of Article 3 should the applicants be expelled to Iraq could have been established on a more solid basis. Once it is recognised, as it was by the Swedish authorities, that the attacks on the applicant, on the one hand, and the death of his daughter, on the other, occurred and the reason for those attacks, a prima facie case in favour of granting asylum began to form, and the evidentiary burden passed to the State, particularly when it came to disproving the risks posed by the general situation in the receiving State, the threat from non-State actors and the inability of the authorities in said State to protect the applicants when and if returned.12. I respectfully disagree with the joint dissent when they ‘assume’ that, since threats to the applicant and his family had stopped when he ceased his collaboration with the U.S. forces, no future risk lay and when they state, without more, that ‘there appears to be no risk of persecution of the applicants on account of the activities of ISIS either’. However, they are entirely correct in their contention that the Grand Chamber, in its ex nunc assessment, had to engage clearly and concretely with these issues. Was it not possible to refer, amongst others, to the UNHCR guidelines, albeit from 2012, which made clear that civilians (formerly) employed or otherwise affiliated with the former MNF-I/USF-I or international companies, as well as their families, were still at risk of being targeted by non-State actors for their (imputed) political opinion and identified who those non-State actors were?13. The Court itself has previously recognized that individuals who worked directly with the international forces or for a company connected to those forces must, as a rule, be considered to be at greater risk in Iraq than the average population.14.

It was also open to the Grand Chamber, in the context of the latter assessment, to recognize that the violation which it finds against the respondent State is in part due to the situation of, at times, acute volatility in the receiving State and is the result of an assessment undertaken by the Court in June 2016, over four years after the key decision by the Migration Court. The violation imputed to the respondent State should be viewed in the light of this significant time lapse.15.

As the dissenting opinions demonstrate, views will undoubtedly differ as regards the application of the general principles derived from the case-law to an individual asylum-seeker's circumstances in the context of an ex nunc assessment by this Court. There is no doubt that such assessments have fourth instance overtones16. and it is precisely because of this that the Grand Chamber should have handled more carefully the two crucial paragraphs discussed above.

We regret that we are not able to subscribe to the view of the majority in this case that there would be a potential violation of Article 3 of the Convention should the applicants be expelled to Iraq.

The parties agreed that the applicants and some other members of their family had been subjected to persecution by al-Qaeda until 2008 on account of the services provided by the first applicant to the American forces. The crucial question in this case is how to deal with the applicants' allegation of subsequent events that took place after those services ended, bearing in mind that although the historical position is of interest in so far as it may shed light on the current situation and its likely evolution, the present conditions are decisive for the assessment of applicants' claims (see, among other authorities, Chahal v. the United Kingdom, 15 November 1996, § 86, Reports of Judgments and Decisions 1996-V; Venkadajalasarma v. the Netherlands, no. 58510/00, § 67, 17 February 2004; Hirsi Jamaa and Others v. Italy [GC], no. 27765/09, § 121, ECHR 2012; and A.G.R. v. the Netherlands, no. 13442/08, § 55, 12 January 2016).

The majority see no reason to question the applicants' account. They are satisfied that the applicants' account of the events which occurred between 2004 and 2010 is generally coherent, credible and consistent with relevant country-of-origin information and that it provides a strong indication that the applicants continue to be at risk from non-State actors in Iraq (see paragraph 114 of the judgment). After concluding that there is a strong indication of this continued risk, the majority find that it is for the Government to dispel any doubts about it. Here the majority refer back to the assessments made by the Migration Agency and the Migration Court and find their reasoning to be lacking. However, the majority do not take into account the Government's submissions on the relevant points but conclude that the domestic decisions do not appear to have entirely excluded a continuing risk from al-Qaeda and that they instead appear to have supported the view that the Iraqi authorities' ability to protect the applicants had increased (see paragraph 115).

The question is whether or not the respondent State would be fulfilling its obligations under the substantive limb of Article 3 were it to execute the authorities' decision to expel the applicants to Iraq. Even though the domestic authorities' assessment of the facts, including the credibility of accounts provided by asylum-seekers, is very important for the Court's assessment of an application, the principal issue in the present case is not the Swedish immigration authorities' decisions at the time, but whether, in the present-day situation, the applicants would face a real risk of persecution if returned to Iraq (see paragraph 113 of the judgment). This inevitably means that the Court takes on the responsibility for determining all the facts on which it bases its risk assessment under Article 3. However, respecting the principle of subsidiarity, ‘it is not the Court's task to substitute its own assessment of the facts for that of the domestic courts and, as a general rule, it is for those courts to assess the evidence before them’ (see paragraph 84), and therefore any assessment of the relevant facts and evidence that has previously been made in the domestic context must be taken into account. As it is the Government who defend the State in the case before the Court, and as a possible potential violation of Article 3 is at issue, their submissions as regards the facts and the applicants' credibility must be taken into account in the Court's ex nunc assessment of any future risks for the applicants. All this must be done without the Court having had the opportunity to hear the applicants in person and, in this case, without any of the written evidence adduced in the domestic proceedings having been presented to all the judges. Furthermore, even accepting past ill-treatment as a ‘strong indication’ of risk (see paragraphs 99–102), if such ill-treatment ceased while the applicants remained in their home country, that risk indication is diminished in our opinion. However, we agree with the majority that any acceptance of past ill-treatment as an indication of a risk presupposes that the applicant ‘has made a generally coherent and credible account of events’ (see paragraph 103).

It is not clear from the majority's reasoning in paragraph 114 or elsewhere in the judgment on what grounds they base their conclusion that the applicants' account of events is generally credible, or why they disregard the Government's contention to the contrary. In our opinion the assessment of the applicants' credibility in this case should include the following aspects: an evaluation of the Government's claim that the first applicant had not mentioned in his interviews at the Migration Agency in 2011 his allegation that al-Qaeda had been searching for him only a few weeks previously; scrutiny of the report allegedly produced by the Iraqi authorities (to which the applicants claimed that they did not have access) in relation to the alleged burning down of the applicants' house in November 2011; an assessment of the claim that the applicants risk persecution on account of the first applicant's political activities, set against the Government's contention that this factor was not mentioned in the proceedings before the Migration Agency but only in the later appeal to the Migration Court; and an assessment of the claim by the applicants that al-Qaeda had searched for the first applicant in 2011, the only evidence of which is a report by a former neighbour in Baghdad, the evidentiary value of which is low according to the respondent State.

We conclude the following as regards these aspects. In combination with the fact that the last-mentioned event was not brought up in the interviews at the Migration Agency, the neighbour's report gives the impression of having been constructed retrospectively, and therefore that event should be regarded as unsubstantiated. The report of the fire at the applicants' house has been considered to be of low evidentiary value by the Migration Agency, and even if that event were accepted as fact, there is no indication of any specific category of perpetrator. The first applicant's claims as regards his political activities are supported by a video recording of a political debate which apparently is not correctly dated. Moreover, this was also an alleged event which could have been mentioned from the outset of the asylum proceedings, and the failure to do so has not been sufficiently explained. Against this background we do not agree with the majority's finding that the applicants' account of events is ‘generally credible’.

In sum, we find that the allegations by the applicants in their submissions before the domestic authorities after the first set of proceedings before the Migration Agency were not merely unsubstantiated, but undermined their asylum claim, especially as regards the events that allegedly took place after 2008. We therefore conclude that the applicants have not shown that they were subjected to persecution by third parties after that date and do not agree that the burden of proof shifted to the Government to dispel any doubts about the risk of such persecution in the future.

As the parties agreed that the applicants had been persecuted until 2008 we accept that as fact, but we conclude that the persecution stopped at that point and that this coincided with the first applicant's termination of his business activities linked to the American forces. Under these circumstances, the applicants' past ill-treatment cannot serve as the main basis for an assessment of a future risk of persecution, but is one factor among others to be taken into account.

The question is whether, in spite of the fact that the persecution of the applicants ended by 2008, there exists today a real risk of their persecution by any group because of the first applicant's previous business activities. We agree with the majority that the general situation in Iraq does not call for the conclusion that it in itself entails a risk of treatment in violation of Article 3. The evaluation of such a risk should thus be based on the following elements pertaining to the applicants' individual situation on account of the first applicant's previous services to the American forces:

The applicants claimed that they had gone into hiding in Baghdad by moving between different addresses before leaving Iraq. This has not been contested by the Government. Even if the applicants were hiding and thereby avoided threats from al-Qaeda, they have not claimed that the rest of their family — two daughters who lived in Baghdad and were not in hiding — were ever threatened on account of the activities of the first applicant. Against this background we cannot conclude that the hiding and moving around in Baghdad constituted the sole reason why their persecution ended.

The first applicant claimed that he had provided construction and transport services to the Americans, operating out of one of their camps in Baghdad. He has not described in any detail what those services consisted of. Although it is clear that certain categories of collaborators with the former US/multinational forces — apparently mainly those who have shown a political or ideological commitment to those forces — are still targeted by various groups (see paragraph 41 of the judgment), the reports appear not to be as conclusive when it comes to former independent providers of practical services untainted by ideological commitment. As the reports describe an ongoing threat from al-Qaeda towards certain collaborators it may be assumed that had any threats ended after the first applicant stopped providing his services, he and his family would no longer be under threat from that particular organisation. As regards other groups, such as ISIS, some country information has been cited in the judgment as regards their activities throughout Iraq. However, none of these reports describe a risk from ISIS that is any different from that of al-Qaeda as regards persecution of persons in Baghdad. Consequently, there appears to be no risk of persecution of the applicants on account of the activities of ISIS either.

To sum up, there is no disagreement between the parties that the applicants were subjected to persecution by al-Qaeda until the first applicant stopped providing services to the American forces in 2008. The applicants remained in Baghdad for a considerable length of time after their persecution ended in 2008. Their past ill-treatment can therefore not in itself serve as an indication of a future risk of being subjected to the same type of persecution as previously. It is therefore for the applicants to show that were they to be returned to Iraq in the present conditions there would be a real risk of ill-treatment emanating from al-Qaeda or any other group. They have not been able to do this. For these reasons we consider that there would not be a violation of Article 3 if the order to expel the applicants to Iraq were implemented.

I respectfully disagree with the majority that the applicants' expulsion to Iraq would give rise to a violation of Article 3 of the Convention. I cannot agree either with the general principles set out in paragraph 102 of the Grand Chamber judgment or with their subsequent application in the instant case.