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Article Sweden/ECHR: Court Rejects Deportation of Iraqis Connected to U.S. Forces

(Oct. 20, 2016) On August 23, 2016, the Grand Chamber of the European Court of Human Rights (ECHR) issued a judgment against Sweden for attempting to deport three Iraqi citizens in violation of article 3 of the European Convention on Human Rights, which prohibits subjecting persons “to torture or to inhuman or degrading treatment or punishment.”  The judgment thereby overturned an earlier ECHR decision.  (Case of J.K. and Others v. Sweden, App. No. 59166/12, E.C.H.R. Grand Chamber, Aug. 23, 2016, HUDOC; Case of J.K. and Others v. Sweden, App. No. 59166/12  E.C.H.R. Fifth Section, June 4, 2015, HUDOC.)

Background  

The applicants, an Iraqi family, were denied asylum in Sweden in November of 2011 on the grounds that they had not demonstrated that they were “otherwise in need of protection.” (Case of J.K. and Others v. Sweden [2016], supra, ¶ 17.)  The family had claimed that they were individually persecuted by Al Qaeda and that the Iraqi police force could not protect them.  (Id.)  Specifically, the applicants claimed that their business and home had been destroyed in 2006, their daughter had been killed in 2008, and they had felt compelled to shift their location in Baghdad thereafter, from 2008-2011.  (Id. ¶ 13.)  The Swedish authorities, taking all the threats in sum, found that the family had been persecuted but  was not in need of immediate protection as it had not been in danger after 2008.  (Id. ¶ 17.)

The previous chamber decision agreed with the Swedish authorities’ assessment of the situation and came to the conclusion that the applicants had not sufficiently proven that a return to Iraq would put them at “a real risk of being subjected to treatment contrary to Article 3” of the Convention. (Id. ¶ 60.)

Judgment of the Grand Chamber 

The EHCR found that:

the fact of past ill-treatment provides a strong indication of a future, real risk of treatment contrary to Article 3, in cases in which an applicant has made a generally coherent and credible account of events that is consistent with information from reliable and objective sources about the general situation in the country at issue. In such circumstances, it will be for the Government to dispel any doubts about that risk. (Id. ¶ 102.)

The Grand Chamber, in determining the case, looked at the present-day dangers rather than those presented in 2011 (id. ¶ 113) and found, citing the U.S. Department of State, that the situation has deteriorated since 2011.  (Id. ¶ 120.)  The Court especially considered the fact that the family, because the father had done business with the United States at Victoria Camp, was part of “the group of persons systematically targeted for their relationship with American Forces.”  (Id. ¶ 117.)  Because they belonged to this group, and were not merely members of the public at large, the Court found the Iraqi government could not provide them sufficient protection;  instead, the situation creates “a real risk of ill-treatment in the event of their return to Iraq.”  (Id. ¶ 121.)

In conclusion, the Grand Chamber found “that substantial grounds have been shown for believing that the applicants would run a real risk of treatment contrary to Article 3 if returned to Iraq. Accordingly, the Court considers that the implementation of the deportation order in respect of the applicants would entail a violation of Article 3 of the Convention.”  (Id. ¶ 123.)

Dissent

Seven judges dissented from the decision, six of whom argued that although they agreed that there had been persecution of the applicants, the case hinged on whether the Swedish state “would be fulfilling its obligations under the substantive limb of Article 3 if it were to execute the authorities’ decision to expel the applicants to Iraq.” (Joint Dissenting Opinion of Judges Jäderblom, Gritco, Dedov, Kjølbro, Kucsko-Stadlmayer, and Polackova, Case of J.K and Others v. Sweden [2016], supra, at 57, ¶ 4.)  The dissent argued that the Swedish state’s judgment had not been sufficiently considered by the Court and found that the evidence presented by the applicants before the Swedish authorities did not substantiate, but rather undermined, their case; therefore the burden of proof did not shift to the Swedish state to “dispel any doubts about the risk of such persecution in the future.”  (Id. ¶ 7.)  They noted especially that the applicants had two daughters who were living in Iraq without needing to go into hiding.  (Id. ¶ 10.)

Dissenting Judge Ranzoni set out a test requiring the state to dispel any doubts on the risk of persecution only if the following conditions are met:

  1. if the asylum-seeker has made a coherent and credible account of events of past ill-treatment which met the Article 3 threshold;
  2. if the account is consistent with information from reliable and objective sources about the situation in the country at issue, providing a serious indication of a future, real risk of such ill-treatment; and
  3. if the asylum-seeker has indicated substantial and concrete grounds for believing that the risk of further such ill-treatment still persists. (Dissenting Opinion of Judge Ranzoni, id. at 61, ¶ 11.)

He considered that the standards of this test had not been met in the case at hand. (Id.)

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Chicago citation style:

Hofverberg, Elin. Sweden/ECHR: Court Rejects Deportation of Iraqis Connected to U.S. Forces. 2016. Web Page. https://www.loc.gov/item/global-legal-monitor/2016-10-20/swedenechr-court-rejects-deportation-of-iraqis-connected-to-u-s-forces/.

APA citation style:

Hofverberg, E. (2016) Sweden/ECHR: Court Rejects Deportation of Iraqis Connected to U.S. Forces. [Web Page] Retrieved from the Library of Congress, https://www.loc.gov/item/global-legal-monitor/2016-10-20/swedenechr-court-rejects-deportation-of-iraqis-connected-to-u-s-forces/.

MLA citation style:

Hofverberg, Elin. Sweden/ECHR: Court Rejects Deportation of Iraqis Connected to U.S. Forces. 2016. Web Page. Retrieved from the Library of Congress, <www.loc.gov/item/global-legal-monitor/2016-10-20/swedenechr-court-rejects-deportation-of-iraqis-connected-to-u-s-forces/>.