CASE OF J.K. AND OTHERS v. SWEDEN
Violation of Article 3 - Prohibition of torture (Article 3 - Expulsion) (Conditional) (Iraq);Pecuniary damage - claim dismissed (Article 41 - Pecuniary damage;Just satisfaction);Non-pecuniary damage - finding of violation sufficient (Article 41 - Non-pecuniary damage;Just satisfaction)
Alena Poláčková;Aleš Pejchal;András Sajó;André Potocki;Angelika Nußberger;Carlo Ranzoni;Dmitry Dedov;Guido Raimondi;Helena Jäderblom;Iulia Motoc;Jon Fridrik Kjølbro;Kristina Pardalos;Krzysztof Wojtyczek;Ledi Bianku;Luis López Guerra;Mark Villiger;Mirjana Lazarova Trajkovska;Síofra O’Leary;Vincent A. De Gaetano;Gabriele Kucsko-Stadlmayer;Pere Pastor Vilanova
8. The applicants, a married couple and their son, were born in 1964, 1965 and 2000 respectively. 9. The applicants were brought up in Baghdad. Since the 1990s the husband (the first applicant) had run his own construction and transport business with exclusively American clients and had had his office at the United States military base “Victoria camp” (seemingly referring to Camp Victory). Several of his employees had on occasion been warned not to cooperate with the Americans. 10. On 26 October 2004 the first applicant was the target of a murder attempt carried out by al-Qaeda. He had to stay in hospital for three months. There, unknown men asked for him, after which he was treated in three different hospitals. 11. In 2005 his brother was kidnapped by al-Qaeda members, who claimed that they would kill him because of the first applicant’s collaboration with the Americans. His brother was released through bribery a few days later and immediately fled from Iraq. The applicants fled to Jordan and stayed there until December 2006, before returning to Iraq. 12. Soon afterwards, al-Qaeda members placed a bomb next to the applicants’ house. However, it was detected by the first applicant’s wife (the second applicant), and the American forces arrested the perpetrator. During interrogation, the perpetrator confessed that he had been paid by al-Qaeda to kill the first applicant and disclosed the names of sixteen people who had been designated to watch the applicants. Thereafter, the applicants moved to Syria, although the first applicant continued his business in Iraq. During this time, al-Qaeda destroyed their home and the first applicant’s business stocks. 13. In January 2008 the applicants returned to Baghdad. In October 2008 the first applicant and his daughter were shot at when driving. The daughter was taken to hospital, where she died. The first applicant then stopped working and the family moved to a series of different locations in Baghdad. The first applicant’s business stocks were attacked four or five times by al-Qaeda members, who had threatened the guards. The first applicant stated that he had not received any personal threats since 2008 as the family had repeatedly moved around. The son (the third applicant) had spent most of his time indoors for fear of attacks and had only attended school for his final examinations. The applicants had never asked the domestic authorities for protection, fearing that the authorities lacked the ability to protect them and might disclose their address, on account of alQaeda’s collaboration with the authorities. The applicants maintained that, in the event of their return to Iraq, they risked persecution by al-Qaeda and that the first applicant appeared on al-Qaeda’s death list. 14. On 14 December 2010 the first applicant applied for asylum and a residence permit in Sweden. On 11 July 2011 his application was rejected since he was registered as having left the country. 15. On 25 August 2011 the first applicant applied anew for asylum and a residence permit in Sweden, as did the other applicants on 19 September 2011. As to their state of health, the first applicant still had an open and infected wound on his stomach where he had been shot in 2004. They submitted several documents, including identity papers, a death certificate for the first and second applicants’ daughter and a medical certificate for the first applicant’s injury. 16. All three applicants were given an introductory interview by the Migration Agency (Migrationsverket) on 26 September 2011. Subsequently, the first and second applicants were given a further interview on 11 October 2011, which lasted almost three and a half hours. The third applicant was interviewed briefly for a second time and the first applicant was interviewed a third time. The applicants were assisted by State-appointed counsel. 17. On 22 November 2011 the Migration Agency rejected the applicants’ asylum application. In respect of the Iraqi authorities’ ability to provide protection against persecution by non-State actors, the Agency stated: “... Every citizen should have access to police authorities within a reasonable visiting distance. During the past few years the police authorities have taken numerous measures to fight against corruption, clan and militia connections and pure criminality within the police. The current country information, however, shows that there are serious shortcomings in the police’s work on crime-scene investigations and inquests. One of the reasons is probably that many police officers are relatively new and lack experience, and that it takes time to introduce a new method of investigation based on technical evidence. This problem is naturally accentuated by the fact that many individual police officers live under a threat emanating from different terrorist groups, which is likely to diminish their effectiveness. Nevertheless, the current country information shows that the number of suspects who have been prosecuted during the past few years has increased significantly. Even if fewer than half of all suspects are eventually prosecuted, this is still an improvement. The Iraqi security forces have been reinforced significantly and no longer have any shortcomings in human terms. Instances of police infiltration, which were previously widespread, have decreased significantly. The leading representatives of the police authority have expressed both their willingness and their ambition to maintain general security in Iraq. The current country information also shows that it has become more difficult for al-Qaeda Iraq to operate freely in Iraq and that there has been a significant decline in sectarian violence. Today violence is mainly aimed at individual targets, especially civil servants, police, security forces and some minorities. ...” Regarding the assessment of the applicants’ refugee status, as well as their need for alternative protection, the Agency held as follows: “... The Migration Agency notes that [the first applicant] had a contract with the Americans until 2008. For this reason [the first applicant] has been exposed to two murder attempts, his brother has been kidnapped and [the first and second applicant]’s daughter has been killed. Furthermore, on several occasions, [the first applicant] has suffered physical damage to his house and stock. [The first and second applicants] are convinced that al-Qaeda is behind these abuses. The family are also afraid of al-Qaeda in the event of their return. The Migration Agency notes that [the first applicant] stopped working for the Americans in 2008 after his and [the second applicant]’s daughter was killed. The Migration Agency further notes that [the first applicant] stayed in Baghdad until December 2010 and that [the second and third applicants] lived in Baghdad until September 2011. During this period they were not exposed to any direct abuses. [The first applicant] has, however, been indirectly threatened on four or five occasions by the people who guard his stock. Also, his stock has been attacked. [The first and second applicants] explained that they had managed to escape from abuses because they were in hiding and living in different places in Baghdad. The Migration Agency notes that [the first and second applicants] have two daughters who live with their grandmother in Baghdad and a daughter who is married and lives with her family in Baghdad. These family members have not been exposed to any threats or abuses. The Migration Agency notes that the abuses which the family claim to be at risk of being exposed to are criminal acts which their home country’s authorities have a duty to prosecute. In order to decide whether the family can enjoy protection against the abuses they fear, the Migration Agency notes the following. In accordance with the principle that it is for an asylum-seeker to justify his or her need for protection and that it is primarily for the applicant to provide relevant information for the assessment in the case, the onus must be on the applicant to plead that he or she cannot or, owing to a severe fear of the consequences, for example, will not avail himself or herself of the protection of the authorities available in Iraq. In addition, the applicant must justify this. The shortcomings which still exist in the Iraqi legal system are then to be noted and evaluated in the context of the individual assessment of each asylum case. The circumstances on which an applicant relies in arguing that protection by the authorities is deficient are first of all examined in the usual way. In those cases in which the alleged risk of persecution or other abuses does not emanate from the authorities, which as a rule is the case in Iraq, the applicant must show what efforts he or she has made to be afforded protection by the authorities. The applicant can do this either by relying on evidence or by giving a credible account of events which appear plausible. When assessing the authorities’ ability to protect against threats of violence emanating from terrorist groups or unknown perpetrators in a specific case, the individual’s situation, as well as the severity of the violence or threats, their nature and their local reach, must be assessed individually (see Migration Agency, Legal opinion on protection by the authorities in Iraq, 5 April 2011, Lifos 24948). The Migration Agency considers that the family have been exposed to the most serious forms of abuses (ytterst allvarliga övergrepp) by al-Qaeda from 2004 until 2008. Such abuses, however, took place three years ago and nowadays it is more difficult for al-Qaeda to operate freely in Iraq. [The first and second applicants] never turned to the Iraqi authorities for protection. [The first applicant] has stated that the Iraqi authorities lack the capacity to protect the family. Further, he has stated that he did not dare to turn to the authorities because he would then have been forced to disclose his address, which could have resulted in al-Qaeda being able to find him. [The second applicant] has stated that al-Qaeda works together with the authorities. As stated earlier, the Migration Agency finds that there has been a significant decline in instances of police infiltration, which previously were widespread. Against the background of the fact that [the first and second applicants] have not even tried to seek the protection of the Iraqi authorities, the Migration Agency considers that they have not made a plausible case that they would not have access to protection by the authorities in the event of potential threats from al-Qaeda upon returning to Iraq. Against this background, the Migration Agency finds that [the first and second applicants] have not made a plausible case that the Iraqi authorities lack the capacity and the will to protect the family from being exposed to persecution within the meaning of Chapter 4, section 1, of the Aliens Act or to abuses within the meaning of Chapter 4, section 2, first subsection, first point, first line, of the Aliens Act. The Migration Agency notes in this context that there is no armed conflict in Iraq. The Migration Agency therefore finds that the family are not to be regarded as refugees or as being in need of alternative or other protection, for which reason the family do not have the right to refugee status or alternative protection status. The Migration Agency notes that fierce tensions between opposing factions are prevalent in Baghdad. Nevertheless, against the background of the above reasoning, the Migration Agency finds that the family also cannot be regarded as being otherwise in need of protection, within the meaning of Chapter 4, section 2a, first subsection, of the Aliens Act. The family do not therefore have any right to a status falling under any other need of protection. ...” In conclusion, the Migration Agency found that there were no grounds to grant the family residence permits. Against this background, the Migration Agency rejected the family’s application and ordered their deportation from Sweden on the strength of Chapter 8, section 1, of the Aliens Act. 18. The applicants appealed to the Migration Court (Migrationsdomstolen), maintaining that the Iraqi authorities had been and would be unable to protect them. They had contacted the police following the fire to their home and the first applicant’s business stock in 2006 and 2008 and the murder of the first and second applicants’ daughter in 2008, but thereafter they had not dared to contact the authorities owing to the risk of disclosing their residence. Together with their written submissions, they enclosed a translated written statement allegedly from a neighbour in Baghdad, who stated that a masked terrorist group had come looking for the first applicant on 10 September 2011 at 10 p.m. and that the neighbour had told them that the applicants had moved to an unknown place. The neighbour also stated that, just after the incident, the first applicant had called him and been told about the incident. The applicants also submitted a translated residence certificate/police report allegedly certifying that their house had been burned down by a terrorist group on 12 November 2011. Furthermore, the applicants submitted a DVD containing an audiovisual recording of a public debate on television concerning corruption and the infiltration of al-Qaeda members within the Iraqi administration. The applicants mentioned in that connection that the first applicant had participated in the public debate, which had been broadcast on the Alhurra channel in Iraq on 12 February 2008, that is to say, four years earlier. Finally, submitting various medical certificates, the applicants contended that the first applicant’s health had deteriorated and that he could not obtain adequate hospital care in Iraq. The Migration Agency made submissions before the Migration Court. It stated, among other things, that the documents submitted concerning the alleged incidents on 10 September and 12 November 2011 were of a simple nature and of little value as evidence. 19. On 23 April 2012 the Migration Court upheld the Migration Agency’s decision. Concerning the need for protection, the court held: “It is undisputed in the present case that the applicants’ grounds for protection must be examined in relation to Iraq. The general situation in Iraq is not such that as to confer the automatic right to a residence permit. Therefore, an individual assessment of the grounds for protection invoked by the applicants must be made. The applicants have alleged that they are in need of protection upon returning to Iraq as they risk being exposed to ill-treatment by al-Qaeda because [the first applicant]’s company did contract-based work for the Americans in Iraq until 2008. The Migration Court considers that the alleged events took place in the distant past, that it is difficult to see why there would still be a threat as [the first applicant] no longer performs such work, and that, in the event that some threats should still exist, it appears likely [framstår som troligt] that the Iraqi law-enforcement authorities are both willing and able to offer the applicants the necessary protection. In such circumstances, there are no grounds to grant the applicants any residence permit on the basis of a need for protection. ...” 20. The applicants appealed to the Migration Court of Appeal (Migrationsöverdomstolen). Their request for leave to appeal was refused on 9 August 2012. 21. On 29 August 2012 the applicants submitted an application to the Migration Agency for a re-examination of their case. They maintained that the first applicant was under threat from al-Qaeda because he had been politically active. They enclosed a video showing the first applicant being interviewed in English, a video showing a demonstration, and a video showing a television debate. 22. On 26 September 2012 the Migration Agency refused the applicants’ application. The applicants did not appeal to the Migration Court against that decision.