Religion – Weltanschauung – Recht [ RWR ]

In today’s Chamber judgments in the cases of 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), which are not final, the European Court of Human Rights held, by five votes to two, that: the applicants’ deportation to Iraq would not be in violation of Article 2 (right to life) and/or Article 3 (prohibition of inhuman and degrading treatment) of the European Convention on Human Rights. All eight cases concerned the deportation of failed asylum-seekers, originally from Baghdad, Mosul and Kirkuk, to Iraq.

The two applicants in the cases D.N.M. and S.A. alleged in particular that, if deported to Iraq, they would be at risk of being the victims of an honour-related crime following their relationships with women which had met with their families’ disapproval.

The applicants in the other six cases alleged that, if deported to Iraq, they would be at risk of persecution on account of their being Christians, a religious minority in the country.

The Court found in particular that, if removed to Iraq, the applicants would not be at risk as a result of the general situation in the country which was slowly improving. Furthermore, although there was evidence to show that the applicants’ personal circumstances (cases D.N.M. and S.A.) and their belonging to a vulnerable minority (the other six cases) would expose them to a real risk to their lives and/or of inhuman or degrading treatment if removed, the Court held that all ten applicants could reasonably relocate to other regions in Iraq such as Kurdistan in the north (in the six cases concerning Iraqi Christians) or to southern and central Iraq.

Continuation of interim measures

The Court also, decided to continue its indication to the Swedish Government, made under Rule 39 of the Rules of Court (in all eight cases except D.N.M.), that the applicants should not be removed until these judgments became final or until further decision.

Principal facts

The applicants are ten Iraqi nationals who mainly originate from Baghdad or Mosul (Iraq) and are currently living in Sweden.

D.N.M. and S.A.

In the case of D.N.M. the applicant, a Sunni Muslim and Kurd, alleges that he was in a secret relationship with a young Sunni woman and that he left his home town in Kirkuk, Tameem province in northern Iraq, in 2007 when he was caught hugging her and was attacked by her brothers with a pair of scissors. He was subsequently threatened and his shop burnt down. His father – also assaulted and under threat – gave permission for him to be killed. His asylum request, examined by the Migration Board and Migration Court, was ultimately rejected in August 2010 as they considered that he could safely relocate to other provinces.

In the case of S.A. the applicant alleges that he was in a relationship with a woman who was a Shiah Muslim which met with her family’s disapproval because he was a Sunni Muslim and that he left Iraq in 2008 following her being killed for eloping with him. He was also subsequently threatened and harassed. His asylum request, examined by the Migration Board and Migration Court, was ultimately rejected as it was presumed that the family must consider their honour to have been restored by their daughter’s death and that any further persecution of the applicant was therefore a matter for the domestic authorities.

A.G.A.M., M.K.N., M.Y.H. and Others, N.A.N.S., N.M.B. and N.M.Y. and Others

The applicants in the other six cases allege that they had to leave Baghdad and Mosul (Iraq) because they were being persecuted on account of their Christian beliefs. They all arrived in Sweden between 2007 and 2009, immediately claiming asylum.

The applicants in five of the cases (A.G.A.M., M.K.N., M.Y.H. and Others, N.A.N.S. and N.M.Y. and Others) allege that various Islamic groups harassed and threatened them and their families, demanding that they hand over money and that they convert to Islam otherwise they would be killed. Notably, in the case of A.G.A.M. the applicant was assaulted in 2007, his son kidnapped and found strangled a few days later on the street; in the case of M.K.N. the applicant himself was kidnapped in 2006 and his sister-in-law murdered in 2008, allegedly in retribution against the applicant and his family; in the case of M.Y.H. the son and brother of the applicants, a married couple and their daughter, was kidnapped in 2006 but managed to escape; in the case of N.A.N.S. the applicant’s father was shot and wounded in 2008 and his mother went missing in 2009 and has not been seen since; and, in the case of N.M.Y. the applicants, two sisters and their brother, were told by armed men who came to the family home that they would be killed if they did not convert to Islam.

The applicant in the case of A.G.A.M. also requested asylum on account of his family ties in Sweden, his wife and daughter having been granted permanent residence permits in 2011.

The applicant in the case of M.K.N. further alleges that he was at risk of persecution for having had a homosexual relationship, the Mujahedin having already killed his partner.

Lastly, in the case of N.M.B. the applicant, a professor at Baghdad University, alleges harassment for his involvement in a committee on research methods of whom the head was kidnapped and killed in July 2006. Notably, armed men attempted to kidnap his daughter in June 2006 and his father was kidnapped and tortured into giving his son’s whereabouts in 2008.

The applicants’ asylum requests were examined by the Migration Board and Migration Court and were all rejected between 2009 and 2012. In four of the cases (A.G.A.M., M.K.N., M.Y.H. and Others and N.M.Y. and Others) the requests were rejected in particular because the authorities considered that the incidents of which the applicants were victim were essentially related to the general security situation in Iraq at the time and that, a number of years having passed since then and the level of violence having declined, the applicants were no longer at risk. Nor were the applicant’s family ties in the case of A.G.A.M. considered to be strong enough, given the long separation with his wife and their on-going conflict. In the case of M.K.N. the authorities did not find convincing the applicant’s claim that he had been in a homosexual relationship as it had been made at a very late stage in the proceedings without any reasonable explanation. In the case of N.M.B. it was found that the applicant was not at risk either, his work on the university committee having been terminated for a number of years and in any case limited in scope. Nor was he involved in any political activity. In the case of N.A.N.S. it was found that the applicant had shown that he would be at risk of serious persecution if returned to Mosul due to the conflicts there and that he would not be given any protection by the local authorities. However, given that he was a young man in good health, relocation to the Kurdistan Region of Iraq was a reasonable alternative.

Complaints, procedure and composition of the Court

Relying on Article 2 (right to life) and Article 3 (prohibition of inhuman and degrading treatment), the applicants in the cases of D.N.M. and S.A. alleged that they would be at risk of being the victim of an honour-related crime if deported to Iraq.

The applicants in the other cases alleged that, if returned to Iraq, they would be at real risk of being subjected to torture or inhuman and degrading treatment contrary to Article 3 (prohibition of torture and of inhuman or degrading treatment).

The applications were lodged with the European Court of Human Rights between September 2010 and May 2011. Judgment was given by a Chamber of seven judges, composed as follows:

Mark Villiger (Liechtenstein), President,

Angelika Nußberger (Germany),
Boštjan M. Zupančič (Slovenia),
Ann Power-Forde (Ireland),
André Potocki (France),
Paul Lemmens (Belgium),
Helena Jäderblom (Sweden),

and also Claudia Westerdiek, Section Registrar.

Decision of the Court

Articles 2 and 3

The Court first noted that all the applicants’ claims had been examined by the Migration Board and the Migration Court, which both gave extensive reasons for their decisions that the applicants were not in need of protection in Sweden.

As concerned the general situation in Iraq the Court further noted that it was slowly improving and, taking into account the current international and national reports available, concluded that it was not so serious as to cause, by itself, a violation of Article 3 of the Convention in the event of a person’s return to that country. However, the applicants had not only claimed that the general situation in Iraq was too unsafe for their return, but also that they were at risk either from an honour-related crime or their belonging to the Christian minority.

In the cases of D.N.M. and S.A. the Court found that the events that had led the applicants to leave Iraq strongly indicated that they would be in danger upon return to their home towns, the more so considering the numerous sources which stressed the gravity of honour-related violence in Iraq. Nor did the Court find that the applicants would be able to seek protection from the authorities in their home regions or indeed that any protection provided would be effective. On the contrary, the Iraqi Penal Code allowed for lenient punishment of “honour killings” and such crimes were reported to be committed with impunity, including among law enforcement officials.

As concerned the situation of Christians the Court noted that they formed a vulnerable minority and that violence against them had escalated in recent years, either directly because of their faith or because of their perceived wealth or connections with foreign forces and countries or the practice of some of them of selling alcohol. The UK Border Agency had concluded in December 2011 that the authorities in central and southern Iraq were generally unable to protect Christians and other religious minorities.

However, the Court considered that relocation to other regions of Iraq was a reasonable alternative for all ten applicants.

In the cases of D.N.M. and S.A. the applicants could relocate to regions away from where they were persecuted by a family or clan, in southern and central Iraq for example. The Court was not convinced by the applicants’ claim that the women’s relatives had the means and connections to find them wherever they were in Iraq. Tribes and clans in Iraq being region-based powers meant that a person who was persecuted by a family or clan could be safe in another part of the country. There was no evidence to show that the clans or tribes in the applicants’ cases were particularly influential or powerful or that they had connections with the authorities and/or militia in Iraq. Furthermore, it was reasonable to assume that the passing of time had to some degree reduced the threat against the applicants.

More importantly, there was nothing to indicate that it would be impossible or even particularly difficult for Sunni Muslims – comprising a sizeable group, reportedly making up one third of the country’s population – to find a place to settle where they would constitute a majority or, in any event, be able to live in relative safety.

Lastly, as concerned the applicant in D.N.M. guidelines issued by the United Nations High Commissioner for Refugees (UNHCR) in 2012 did not show that Kurds were per se an enhanced risk category within Iraq.

In the other six cases concerning Iraqi Christians the applicants could relocate to three northern governorates – Dahuk, Erbil and Sulaymaniyah – forming the Kurdistan Region of northern Iraq which, according to international sources, was a relatively safe area where, the rights of Christians generally being respected, large numbers of this group had already found refuge. Indeed, members of the Christian group are given preferential treatment as compared to others wishing to enter the Kurdistan Region, as they are at particular risk of terrorist attacks in southern and central Iraq and are not considered to pose any terrorist threat themselves. Nor apparently was there any difficulty in obtaining identity documents to enter the three northern governorates. In conclusion, neither the general situation in that region, including that of the Christian minority, nor any of the applicants’ personal circumstances, which – without underestimating their seriousness – had all occurred in Baghdad or Mosul, indicated the existence of a risk of inhuman and degrading treatment.

As concerned A.G.A.M. the Court noted in particular that the applicant’s deportation would separate him from his wife – who was expecting another child in October 2012 – and daughter who had been granted permanent residence permits in Sweden but that he had not at any stage in the proceedings in his case before the European Court submitted a complaint under Article 8 (right to respect for private and family life). Should a future request for a residence permit based on family ties be rejected by the Swedish authorities the applicant was free therefore to submit a new application to the Court under Article 8.

Internal relocation inevitably involved certain hardship. Nevertheless, relocation was a viable alternative for all ten applicants. There was no evidence to show that the general living conditions either in southern or central Iraq for the applicants in the cases D.N.M. and S.A. or in Kurdistan for the applicants in the other six cases would not be reasonable. There were jobs available in Kurdistan and settlers have access to health care as well as financial and other support from the UNHCR and local authorities. In the cases of D.N.M. and S.A. the Court further noted that both applicants were young men without any apparent health problems. Consequently, in all eight cases the Court held that the applicants’ deportation to Iraq would not involve a violation of either Articles 2 or 3.

Separate opinions

Judge Power-Forde expressed a dissenting opinion joined by Judge Zupančič. These opinions are annexed to the judgments.

Press release ECHR 191 (2013) 27/06/2013