EIT:lta kahdeksan tuomiota irakilaisten turvapaikanhakijoiden palauttamisesta Irakiin

28.6.2013 | Oikeusuutiset

Markku Fredman

Euroopan ihmisoikeustuomioistuin (EIT) on eilen antanut Ruotsia koskevat kahdeksan tuomiota, jotka ovat koskeneet kysymystä siitä, voidaanko kielteisen turvapaikkapäätöksen saaneita henkilöitä palauttaa Irakiin.

Vastaus on jaoston ratkaisuissa ollut äänestyksen jälkeen myönteinen. EIT kuitenkin määräsi, että ns. Rule 39-täytäntöönpanokielto on edelleen pidettävä voimassa, kunnes ratkaisut ovat tulleet lopullisiksi tai EIT toisin määrää.

EIT:n lehdistötiedotteesta:

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.

Vähemmistöön jääneet tuomarit totesivat mm. tapauksessa A.G.A.M. seuraavaa:

For the reasons set out in my dissenting opinion in the case of
M.Y.H. and Others v. Sweden, I voted
against the majority in finding that Article 3 would not be breached in the event that the deportation order made in respect of this applicant were to be
executed. My dissent was based on the failure of the majority to test whether
the requisite guarantees required by the Court’s case law prior to a deportation
based on internal flight options, were established in this case.

However, apart from that question of
principle in relation to internal flight options, I have serious doubts as to
whether the applicant’s deportation would, in any event, be in compliance with
Article 3 of the Convention.

The applicant is a 45-year-old man from
Baghdad who was and is an active member of the Syrian Orthodox church. He lived
with his wife and two children in Baghdad. He has had a particularly severe
history of suffering during the war in Iraq because of his religious belief. In
February 2007 his wife received threatening letters warning her to leave her job teaching Arabic at an Iraqi university. His family was required to go into
hiding. His son was abducted and strangled and his remains were dumped on a
street. The police authorities were informed but little was done. A similar
threat was then made on his daughter’s life. Eventually, the applicant and his
family fled to Syria in September 2007 and, thereafter, the applicant went to
Sweden to seek asylum.

In the meantime, and having regard to
the deteriorating situation in Syria, the applicant’s wife returned to Baghdad
in 2010 in search of work. She was kidnapped, attacked and raped by a group of
men. She finally came to Sweden with her daughter where both of them were
granted asylum.

Clearly, the applicant and his wife and
daughter were separated for some time, not least, as a consequence of the legacy
of war in their home country. However, it is equally clear that the applicant
has since reunited with his wife and daughter and that they have been living
together for some time. A third child has been born of their marriage in October 2012.

Having regard to what the applicant has
already endured—the loss of his home, the death of his son, the flight of his
family, the assaults upon his wife, the fracturing of their relationship and the
ultimate reunification of his family—the suffering that would be imposed upon
him by separating him, once again, from his family and his
newborn child and by forcing him
to return to Iraq—would, to my mind, cross the threshold of suffering required
by Article 3.

I appreciate that the applicant’s claim
is not brought under Article 8 of the Convention. I also recognise that the
threat under Article 3 must be assessed in terms of future risk. However, when
assessing future risk one has to have regard to the individual circumstances of
each case and to the level of suffering to which an individual has already been
exposed. Such previous experience may be sufficient to break a person’s moral or psychological resistance in the event that he or she is further exposed to
additional suffering.

To my mind, given what this applicant
has already endured it would be inhuman and degrading to separate him once again
from his immediate family, which he has finally managed to hold together despite
the trauma of war. The additional suffering that this would entail would be
sufficient, to my mind, to break his moral and psychological resistance and
would extend beyond the level permitted by Article 3 of the
Convention. The expulsion of a person on the basis
that internal flight relocation is available may, in altogether different
circumstances, be compatible with Article 3. However, having regard to the
circumstances of this applicant’s case, his expulsion to Iraq would not, in my
view. be compatible with that Article of the Convention.

It is formalistic in the extreme to
expect that the applicant should be forced to leave his wife and children, once
again, purely for the purposes of travelling to the Kurdish region so that, from
there, he may contact a Swedish Embassy and apply for family

Therefore, both for the reasons set out
in my dissenting opinion in
M.Y.H. and Others v Sweden and on the merits of this case, I consider that the applicant’s
removal to Iraq would violate Article 3.

Koko lehdistötiedote, jossa myös linkit kaikkiin tuomioihin, löytyy täältä:
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