Strasbourg court rules deportation of Iraqi nationals would violate article 3

In today’s Grand Chamber judgment in the case of J.K. and Others v. Sweden the European Court of Human Rights held, by ten votes to seven, that there would be: a violation of article 3 (prohibition of torture and inhuman or degrading treatment) of the European Convention on Human Rights if the order for the applicants’ deportation to Iraq were implemented.

The case concerned three Iraqi nationals who had sought asylum in Sweden and whose deportation to Iraq had been ordered. Accepting that the general security situation in Iraq did not as such prevent the removal of Mr J.K. and his wife and son, the court had to assess whether their personal circumstances were such that they would face a real risk of treatment contrary to article 3 if expelled to Iraq.

The court noted that the applicants’ account of events was generally coherent, credible and consistent with relevant country-of-origin information available from reliable and objective sources.

Given that the applicants had been subjected to ill-treatment by al-Qaeda, the court found that there was a strong indication that they would continue to be at risk from non-state actors in Iraq. Mr J.K. belonged to a group of persons who were systematically targeted because of their relationship with the American armed forces, and it was established that he had been ill-treated until 2008.

The court observed that the situation in Iraq had clearly deteriorated since 2011 and 2012, when the Migration Agency and the Migration court respectively had assessed the situation and the latter had concluded that the Iraqi law-enforcement authorities were likely to be both willing and able to offer the necessary protection to those seeking it.

Against a background of a generally deteriorating security situation, marked by an increase in sectarian violence and attacks and advances by ISIS, large areas of the territory were outside the Iraqi government’s effective control. In the light of the complex and volatile general security situation, the court found that the Iraqi authorities’ capacity to protect citizens had to be regarded as diminished. Although the current level of protection might still be sufficient for the general public in Iraq, the situation was different for individuals belonging to a targeted group. The cumulative effect of the applicants’ personal circumstances and the Iraqi authorities’ diminished ability to protect them had to be considered to create a real risk of ill-treatment in the event of their return to Iraq.

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