Expulsion or extradition cases
II. RELEVANT DOMESTIC LAW AND PRACTICE A. Domestic law on expulsion 47. Pursuant to Chapter 1, Article 8 of the Penal Code ( Brottsbalken, 1962:700), a crime may, apart from ordinary sanctions, result in special consequences defined by law. Expulsion on account of a criminal offence constitutes such a consequence and the decision in this respect is made by the court in which the criminal proceedings take place. 48. Provisions on expulsion on this ground are laid down in the Aliens Act ( Utlänningslagen, 2005:716 – hereafter “the 2005 Act”) which replaced the old Aliens Act ( Utlänningslagen, 1989:529) on 31 March 2006. However, the rules on expulsion on account of a criminal offence remain the same in substance under the 2005 Act as under the old Aliens Act. Thus, in the following, reference will only be made to the 2005 Act. 49. According to Chapter 8, sections 8 and 11 of the 2005 Act, an alien may not be expelled from Sweden on account of having committed a criminal offence unless certain conditions are satisfied and the person ’ s links to Swedish society have been taken into account. 50. Moreover, the court must have regard to the general provisions on impediments to the enforcement of an expulsion decision. Thus, pursuant to Chapter 12, section 1 of the 2005 Act, there is an absolute impediment to expelling an alien to a country where there are reasonable grounds for believing that he or she would be in danger of suffering capital or corporal punishment or of being subjected to torture or other inhuman or degrading treatment or punishment. Furthermore, a risk of persecution generally constitutes an impediment to enforcing an expulsion decision. 51. A decision to expel an alien on account of having committed a criminal offence is, according to Chapter 12, section 14 § 3(2) of the 2005 Act, enforced by the police authority. If the police authority finds that there are impediments to the enforcement, it shall notify the Migration Board, which shall refer the matter to the Government to examine whether the expulsion can be executed (Chapter 12, section 20 of the 2005 Act). If there are no impediments to the enforcement, the alien shall normally be sent to his or her country of origin or, if possible, to the country from which he came to Sweden (Chapter 12, section 4 of the 2005 Act). 52. According to Chapter 8, section 14 of the 2005 Act, if the Government find that a judgment or decision to expel a person on account of having committed a criminal offence cannot be executed or if there are otherwise special reasons not to enforce the decision, the Government may repeal, in part or completely, the judgment or decision of the court. When considering whether to repeal an expulsion order, the Government shall above all take into account any new circumstances, namely circumstances that did not exist at the time of the courts ’ examination of the criminal case. In the travaux préparatoires to this provision (Government Bill 1988/89:86, p. 193), strong family ties and severe illness are given as examples of such “special reasons” that may warrant revocation of an expulsion order. The Government may also, in accordance with Chapter 11, Article 13, of the Instrument of Government ( Regeringsformen ), pardon or reduce a penal sanction or other legal effect of a criminal act. 53. In cases where the expulsion order is not revoked, the Government may still grant a temporary residence permit and work permit. For as long as such a permit is valid, the expulsion order may not be executed (Chapter 8, section 14 of the 2005 Act). B. Swedish policy on asylum seekers from Iraq and expulsion to Iraq 54. In a judgment of 26 February 2007 (MIG 2007:9), the Migration Court of Appeal ( Migrationsöverdomstolen ) found that, at that time, the security situation in Iraq was very serious but that it did not amount to an internal armed conflict, as defined by international law. Moreover, it noted that it was practically possible to return to Iraq voluntarily and that some Iraqis indeed did so. In these circumstances, an individual assessment of each asylum seeker ’ s personal grounds for requesting asylum and a residence permit in Sweden had to be carried out. This conclusion has been reiterated by the Migration Court of Appeal on several occasions during the last year (see, for example, MIG 2007:22 and MIG 2007:33). Furthermore, on 24 April 2008, in a leading decision concerning three Christian asylum seekers from Mosul (a mother and her two minor children), the Director-General for Legal Affairs of the Migration Board made the assessment that the general situation for Christians in Iraq, and in the province of Nineve (where Mosul is situated), was not so serious that this group could be considered to be in need of protection in Sweden. An individual assessment had to be made in each case of the reasons invoked by the asylum seeker. 55. On 18 February 2008 the Swedish Government signed a Memorandum of Understanding with the Iraqi Government, whereby the two countries “resolve to cooperate in order to assist the voluntary, dignified, safe and orderly return to and successful reintegration in Iraq of Iraqis now in Sweden ”. Although primarily focusing on voluntary returns, the Memorandum also allowed for forced returns of failed asylum seekers. THE LAW I. ALLEGED VIOLATION OF ARTICLES 2 AND 3 OF THE CONVENTION 72. The applicant claimed that an expulsion to Iraq would subject him to a real risk of being killed or subjected to torture or inhuman and degrading punishment, in violation of his rights under Articles 2 and 3 of the Convention. These provisions read, in relevant parts, as follows: Article 2 “1. Everyone ’ s right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law. ... ” Article 3 “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.” The Court finds that the issues raised in the present case under Articles 2 and 3 of the Convention are indissociable and will therefore examine them together. A. The parties ’ submissions 1. The applicant 73. The applicant argued that, if forced to return to Iraq, he would face a real and serious risk of being sentenced to death by an Iraqi court or of being killed extrajudicially, primarily by Shi ’ a militia groups. 74. He claimed that he had told the Swedish Security Police, when they had interviewed him in 1993, that he had participated in about fifteen battles during the Iran-Iraq war and during the internal “cleansing” operations in southern and northern Iraq in 1991. He had been trained as an infantry soldier and had been active as such from 1980 to 1988. Thus, he had been taught how to handle weapons and hand-to-hand fighting. In 1988 he had reached the rank of officer and thereafter he had been working with logistics. During this period he had also had to write reports on Shi ’ a insurgency leaders which had led to the execution of two of them. According to the applicant, the Shi ’ as considered these two persons martyrs and there were “people ’ s committees” within the Mahdi Army, and other Shi ’ a militias, which reported on the whereabouts of all former officers belonging to the Republican Guard and executed them. It was irrelevant whether the applicant had personally killed any of these or not. 75. Furthermore, the applicant strongly objected to any claim that he was not credible. For instance, he had never alleged that he had belonged to Saddam Hussein ’ s inner circle and he had stated all along that he had never even met him. However, he maintained that he was well known and that the Shi ’ as by way of their various militias were actively looking for persons with the applicant ’ s background and killing them. The fact that a long time had elapsed since he had served in the Republican Guard was irrelevant. 76. In the applicant ’ s view, it was also possible that he might be tried again in Iraq for the murder of his wife. This was particularly so since he had been sentenced to forensic psychiatric care and not to imprisonment. 77. Finally, he stressed that, according to estimates, before 2003 approximately 1% of Iraq ’ s twenty-six million inhabitants were Christians but that more than half of these had now left the country because they had been targeted. He was Christian and, as such, risked being killed in Iraq. 78. Thus, the applicant was convinced that on the basis of all of the above grounds, he would face a real risk of being killed or tortured or ill-treated contrary to Articles 2 or 3 of the Convention if forced to return to Iraq. 2. The Government 79. The Government considered that the application did not disclose any violation of Articles 2 or 3 of the Convention. 80. They submitted that, although the situation in Iraq was still problematic, Iraqis did return to their home country, in particular to Baghdad and that, during the first four months of 2008, almost 300 Iraqis had returned voluntarily to Iraq from Sweden. In any event, for a violation to be established, the general situation in the country of destination was not enough. It had to be shown that the applicant would run a real and personal risk of being subjected to treatment contrary to Articles 2 or 3 of the Convention if returned to Iraq. 81. In this respect, the Government questioned the applicant ’ s general credibility, pointing out that his statements to the Government and to the Court had, generally, been very vague and sweeping and had been unsupported by further details, particulars, facts or examples. They submitted that the information given by the applicant during the asylum interviews in 1993/94, namely that he had held a relatively subordinate position in a non-combat unit in the Iraqi army more than fourteen years earlier, had to form the basis for an assessment of whether he risked execution or torture or other ill-treatment if returned to Iraq. 82. Consequently, the Government doubted the veracity of the applicant ’ s claim that he had been close to Saddam Hussein or that he had held a prominent position within the Ba ’ ath Party since these claims had been put forward late in the proceedings. Before that, he had consistently stated that he had been an “advanced sympathiser”. In any event, the Government noted that it had not been unusual to be a member of the Ba ’ ath Party, but more or less a prerequisite for anyone who had wanted to advance in any way in Iraq. 83. The Government further observed that the applicant ’ s claim that he had participated in combat during the war against Iran, in the first Gulf war and against the Shi ’ a insurgency was contrary to his previous statements that he had not participated in battle as he had been responsible for transporting vehicles and food. Furthermore, they observed that he had offered no explanations or circumstances in support of why any charges might be brought against him, reiterating that the applicant had repeatedly stated that he had not participated in battle or killed anyone. Thus, the Government argued that he had failed to show that he might be brought to justice before an Iraqi court, let alone that it would give him a death sentence. 84. In any event, they argued that the sole fact that a person had served in the Iraqi military under Saddam Hussein did not subject him to a risk of capital punishment or torture but that the individual risk depended on the person ’ s position, military rank and the activities in which he had been involved. They gave the example of the Iraqi Minister of Defence, Mr Abdu Alqadir Al-Ubaydi, who had been in the military since 1973 and had led an armoured brigade during the Iran-Iraq war. Moreover, the Government pointed out that, in June 2008, over 14,000 applications had been received from former Ba ’ ath Party members for reinstatement or pensions under the Accountability and Justice Law. Hence, there was nothing to suggest that the applicant would be at risk in Iraq. Anyhow, the Government noted that the applicant had not claimed that he was personally wanted, or searched for, by the Iraqi authorities. 85. In line with the above, the Government submitted that the applicant did not face a real risk of being killed extrajudicially. In their view, it was unlikely that the reintegration of former officers now taking place in Iraq would be possible if everyone who had been in Saddam Hussein ’ s army risked extrajudicial killing solely on this account. Also, considering the large number of members of the Ba ’ ath Party during the old regime, it was not likely that the applicant ’ s low position in the party would now, more than fourteen years after he left the country, attract any interest in Iraq or subject him to a risk of fatal retaliation from different interest groups, including from Shi ’ a militia groups. 86. As concerned the issue of whether the applicant might risk being sentenced in Iraq a second time for the murder of his wife in Sweden, the Government referred to the Iraqi Penal law from 1969 and stressed that the applicant had fully served the sentence imposed on him in 1995 in Sweden and that there was no reason to expect the Iraqi authorities to have an interest in pursuing the applicant in a new trial in Iraq for the same crime. 87. The Government further submitted that the sole fact that someone was a Christian could not be considered to entail an additional risk of being exposed to violence. They claimed that the applicant had not described himself as actively religious in Sweden or in Iraq in such a way that people would associate him with Christianity and he would be personally targeted because of this in Iraq. 88. Hence, in conclusion, the Government contended that the applicant had not shown that he would face a real and personal risk of treatment contrary to Articles 2 or 3 of the Convention if expelled to Iraq. B. The Court ’ s assessment 89. The Court observes that Contracting States have the right as a matter of international law and subject to their treaty obligations, including the Convention, to control the entry, residence and expulsion of aliens ( Üner v. the Netherlands [GC], no. 46410/99, § 54, ECHR 2006 ‑ .... ). However, expulsion by a Contracting State may give rise to an issue under Article 3, and hence engage the responsibility of that State under the Convention, where substantial grounds have been shown for believing that the person concerned, if deported, faces a real risk of being subjected to treatment contrary to Article 3. In such a case, Article 3 implies an obligation not to deport the person in question to that country ( Saadi v. Italy [GC], no. 37201/06, § 125, ECHR 2008 - ... ). 90. It further notes that a general situation of violence will not normally in itself entail a violation of Article 3 in the event of an expulsion (see H.L.R. v. France, 29 April 1997, § 41, Reports of Judgments and Decisions 1997 ‑ III ). However, the Court has never excluded the possibility that the general situation of violence in a country of destination may be of a sufficient level of intensity as to entail that any removal to it would necessarily breach Article 3 of the Convention. Nevertheless, the Court would adopt such an approach only in the most extreme cases of general violence, where there was a real risk of ill-treatment simply by virtue of an individual being exposed to such violence on return ( see NA v. the United Kingdom, no. 25904/07, § 115, 17 July 2008 ). 91. In the present case, the Court recognises the problematic security situation in Iraq. However, it notes that the situation has improved over the last year which is demonstrated, inter alia, through the progressive relinquishment of security responsibility over Iraqi provinces from US forces to Iraqi forces, the indefinite cease -fire declared by the Madhi Army in August 2008, a significant decrease in civilian deaths and the fact that some Iraqis are voluntarily starting to return to their homes, encouraged by the Iraqi Government ’ s financial incentives and subsidy programme. Although the Court is aware that the UNHCR, UN and IOM recommend that countries refrain from forcibly returning refugees to Iraq, they have stated that they are committed to providing assistance to those who return. Moreover, the Court observes that their recommendations are partly based on the security situation and partly due to practical problems for returnees such as shelter, health care and property restitution. 92. In this connection, the Court stresses that it attaches importance to information contained in recent reports from independent international human rights organisations or governmental sources (see, among others, Saadi v. Italy, cited above, § 131). However, its own assessment of the general situation in the country of destination is carried out only to determine whether there would be a violation of Article 3 if the applicant were to be returned to that country. Consequently, where reports are focused on general socio-economic and humanitarian conditions, the Court has been inclined to accord less weight to them, since such conditions do not necessarily have a bearing on the question of a real risk to an individual applicant of ill-treatment within the meaning of Article 3 ( see NA v. the United Kingdom, cited above, § 122). 93. Hence, in the present case, the Court concludes that whilst the general situation in Iraq, and in Baghdad, is insecure and problematic, it is not so serious as to cause, by itself, a violation of Article 3 of the Convention if the applicant were to return to that country. The Court therefore has to establish whether the applicant ’ s personal situation is such that his return to Iraq would contravene Articles 2 or 3 of the Convention. 94. In the case before it, the Court observes that the applicant has invoked several grounds for his fear of returning to Iraq, namely his Christian faith, his background as a member of the Republican Guard and the Ba ’ ath Party which would put him at risk of being sentenced to death or of being killed by Shi ’ a militia groups, and a risk of being convicted a second time for the murder of his wife. 95. The Court acknowledges that, owing to the special situation in which asylum seekers often find themselves, it is frequently necessary to give them the benefit of the doubt when it comes to assessing the credibility of their statements and the documents submitted in support thereof. However, when information is presented which gives strong reasons to question the veracity of an asylum seeker ’ s submissions, the individual must provide a satisfactory explanation for the alleged discrepancies (see, among other authorities, Collins and Akasiebie v. Sweden (dec.), no. 23944/05, 8 March 2007, and Matsiukhina and Matsiukhin v. Sweden (dec.), no. 31260/04, 21 June 2005). In principle, the applicant has to adduce evidence capable of proving that there are substantial grounds for believing that, if the measure complained of were to be implemented, he would be exposed to a real risk of being subjected to treatment contrary to Article 3 (see N. v. Finland, no. 38885/02, § 167, 26 July 2005). Where such evidence is adduced, it is for the Government to dispel any doubts about it. 96. In order to determine whether there is a risk of ill-treatment, the Court must examine the foreseeable consequences of sending the applicant to Iraq, bearing in mind the general situation there and his personal circumstances (see Vilvarajah and Others v. the United Kingdom, judgment of 30 October 1991, Series A no. 215, § 108 in fine ). 97. The Court will first consider the applicant ’ s claim that he would risk being killed because he belongs to the Christian faith. In this respect, the Court observes that Iraqi national identity cards explicitly note the holder ’ s religion. Thus, even if the applicant were not to manifest his religious beliefs openly, it is likely that his religious affiliation would become known to others as he would have to show his identity card to the authorities in the course of everyday life. The Court also takes into account that there have been several incidents directed against Christians in Iraq, as recently as October 2008 twelve Christians were killed in attacks in the town of Mosul. However, Christian congregations are still functioning in Iraq and, from the general information available, it can be seen that the Iraqi Government has condemned all attacks against this group and that they intervened with police and military following the October attack to ensure their safety. Hence, it is clear that there is no State - sanctioned persecution of Christians and, since the attacks were also condemned by Islamic groups and no one has accepted responsibility for them, it appears that the reported attacks were carried out by individuals rather than by organised groups. In these circumstances, the Court finds that the applicant would be able to seek the protection of the Iraqi authorities if he felt threatened and that the authorities would be willing and in a position to help him. Thus, the Court considers that he would not face a real risk of persecution or ill-treatment on the basis of his religious affiliation. 98. Next, the applicant alleged that he would risk being sentenced to death by an Iraqi court as he had been a member of the Republican Guard and the Ba ’ ath Party. 99. Although the Court does not question that the applicant has been a member of the Republic Guard and served in the Iraq-Iran war and the First Gulf War, it observes that the applicant, during the asylum interviews in 1993 and 1994, consistently held that he had never participated in combat or killed anyone since his tasks had mainly consisted in ensuring the functioning of transports and support to the front line. He also stated that he had never had any influence himself but only carried out orders from his superiors and that he had deserted from the army when ordered to carry out attacks on the Shi ’ as in 1992. The Court observes that the applicant has essentially maintained this account, stating that in 1988 he had been promoted to officer and thereafter he had been working with logistics. Furthermore, the applicant has at no point claimed that he is sought or wanted by the Iraqi authorities for any crime, indeed, he has consistently held that he left the country when ordered to carry out acts against international law. On the basis of this information, and noting that some former Republican Guards have been integrated into the new Iraqi army, the Court finds nothing to indicate that the applicant would risk being charged with any type of crime before the Iraqi courts, let alone the IHT/SICT, for having served in the Republican Guard. Consequently there is no real risk that he would be sentenced to death. 100. As concerns the applicant ’ s membership in the Ba ’ ath Party, the Court observes that he has claimed to have been an “advanced sympathiser” and not a full member of the party, but that he had been given a “Friends of Saddam” card which entitled him to certain privileges. In his submissions before the Government in 2005, the applicant alleged that he had held a prominent position within the Ba ’ ath Party and that he was well-known and hated by many. Further, in his submission of 13 September 2006 to the Court, he specified that he had been an “advanced sympathiser” which meant that he had held a high position in the hierarchy. Here, the Court observes that there is relatively little information about the structure of the Ba ’ ath Party (see above § 5 7 ) but that it would appear that, on the one hand, an “advanced sympathiser” was not a full member of the party and rather low in the hierarchy whereas, on the other hand, a holder of a “Friends of Saddam” card was a person who had been a Party member for at least ten years. Thus, the Court finds that, on the basis of the information and evidence presented to it, it is not possible to establish whether or not the applicant was a full member of the Ba ’ ath Party or, if he was, what exact level he had attained within it. However, having regard to the fact that the applicant has consistently held that he has never met Saddam Hussein or been involved in any political activities, as well as his statement that most officers within the Republican Guard and some officers in the regular army received this special card, the Court considers it highly unlikely that he belonged to any of the higher levels of the Ba ’ ath Party. In any event, the Court observes that the Accountability and Justice Act has opened the door for most former Ba ’ ath Party members to apply for reinstatement into civil service positions. Moreover, the Act has introduced an element of personal responsibility thereby removing the idea of a “collective guilt” of all Ba ’ ath Party members. The Court further observes that the Iraqi parliament adopted an Amnesty Law in February 2008 (see above § 6 1 ) which has resulted in the release, so far, of over 120,000 detainees in Iraq. Having regard to the aforementioned and to the above finding of the Court that the applicant did not risk being charged with any type of crime before the Iraqi courts, the Court considers that the applicant does not face a real risk of being persecuted, and even less of being sentenced to death, for having been a member of the Ba ’ ath Party. 101. The applicant has further alleged that he would risk being killed extrajudicially by Shi ’ a militia groups because he had been in the Republican Guard. In his submission of 13 September 2006 to the Court, the applicant claimed that Shi ’ a militia groups have tried to find and kill all officers who had fought for Saddam Hussein in the war against Iran or against the Shi ’ as in southern Iraq in 1991. Moreover, in his later submission to the Court he has added that, while working with logistics, he had had to write reports on Shi ’ a insurgency leaders which had led to the execution of two of them. 102. As concerns this complaint, the Court first reiterates that, owing to the absolute character of the right guaranteed, Article 3 of the Convention may apply where the danger emanates from persons or groups of persons who are not public officials. However, it must be shown that the risk is real and that the authorities of the receiving State are not able to obviate the risk by providing appropriate protection ( H.L.R. v. France, cited above, § 40). The Court recognises that several Shi ’ a militia groups, and in particular the Mahdi Army, have sought revenge for previous wrong-doing against the Shi ’ a population without the Iraqi authorities having been able to prevent it. However, the Mahdi Army has, more than one year ago, introduced a cease-fire which is now in force for an indefinite period of time and, as a consequence, the sectarian violence has decreased significantly. 103. In relation to the applicant, the Court considers that the very late addition to his submissions, about having written reports about Shi ’ a insurgency leaders, is not very credible as he did not mention this before the Swedish authorities or courts at any point but only in his last submission to the Court. In any event, the Court observes that the applicant has maintained all along, including before the Court, that from 1988 until he left Iraq, he had been working in a transport division with logistics and that he had deserted from the army because he did not want to take part in the attacks against the Shi ’ as in Al Ahwar. To the Court, this rather indicates that the applicant did not personally carry out any violent or criminal acts against the Shi ’ a population for which they would seek revenge. The mere fact of him having been in the Republican Guard is not sufficient to establish that he would face a real risk of being persecuted or attacked by Shi ’ a militia groups. This is in particular so having regard to the Mahdi Army ’ s cease-fire and the facts that it is more than 15 years since the applicant left Iraq and that he did not hold a prominent position within the Republican Guard or the Ba ’ ath Party. 104. Lastly, the applicant has expressed his fear of being convicted a second time in Iraq for the murder of his wife. However, the Court reiterates that the crime took place in Sweden, that the applicant was tried and convicted in Sweden and that he has purged his sentence in Sweden. The Court also notes that, despite some uncertainties surrounding its current status, the Iraqi Penal Code of 1969 prohibits retrial in Iraq of a person who has been convicted by final judgment in another country (see above § 31). In any event, the Court considers that the applicant has not submitted sufficient evidence as concerns the alleged possibility of his retrial in Iraq and therefore this complaint is unsubstantiated. 105. Having regard to all of the above, the Court concludes that substantial grounds for believing that the applicant would be exposed to a real risk of being killed or subjected to treatment contrary to Articles 2 or 3 of the Convention if deported to Iraq, have not been shown in the present case. Accordingly, the implementation of the deportation order against the applicant would not give rise to a violation of Articles 2 or 3 of the Convention. II. RULE 39 OF THE RULES OF COURT 106. The Court recalls that, in accordance with Article 44 § 2 of the Convention, the present judgment will not become final until (a) the parties declare that they will not request that the case be referred to the Grand Chamber; or (b) three months after the date of the judgment, if reference of the case to the Grand Chamber has not been requested; or (c) the Panel of the Grand Chamber rejects any request to refer under Article 43 of the Convention. 107. It considers that the indication made to the Government under Rule 39 of the Rules of Court (see above § 4) must continue in force until the present judgment becomes final or until the Panel of the Grand Chamber of the Court accepts any request by one or both of the parties to refer the case to the Grand Chamber under Article 43 of the Convention.
The Court decided to apply Rule 39 of the Rules of Court, requesting the Swedish Government to refrain from deporting the applicant until further notice. The application of Rule 39 was lifted when the Court’s judgment finding that the implementation of the deportation order against the applicant would not give rise to a violation of Articles 2 or 3 of the Convention became final.