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AL HAMDANI v. BOSNIA AND HERZEGOVINA - 31098/10 [2012] ECHR 229 (7 February 2012)
URL: http://www.bailii.org/eu/cases/ECHR/2012/229.html
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[2012] ECHR 229
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FOURTH
SECTION
CASE OF AL HAMDANI v. BOSNIA AND HERZEGOVINA
(Application
no. 31098/10)
JUDGMENT
STRASBOURG
7
February 2012
This
judgment will become final in the circumstances set out in Article 44
§ 2 of the Convention. It may be subject to editorial
revision.
In the case of Al Hamdani v.
Bosnia and Herzegovina,
The
European Court of Human Rights (Fourth Section), sitting as a Chamber
composed of:
Lech Garlicki, President,
Päivi
Hirvelä,
Ledi Bianku,
Zdravka
Kalaydjieva,
Nebojša Vučinić,
Vincent
A. De Gaetano,
Ljiljana Mijović, judges,
and
Lawrence Early, Section
Registrar,
Having
deliberated in private on 17 January 2012,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
The
case originated in an application (no. 31098/10) against Bosnia and
Herzegovina lodged with the Court under Article 34 of the
Convention for the Protection of Human Rights and Fundamental
Freedoms (“the Convention”) by an Iraqi national, Mr
Fadhil Al Hamdani (“the applicant”), on 10 May 2010.
The
applicant was represented by Mr O. Mulahalilović and Vaša
prava, a local non-governmental organisation. The
Bosnian-Herzegovinian Government (“the Government”) were
represented by their Agent, Ms M. Mijić.
The
applicant alleged, in particular, that his deportation would expose
him to the risk of treatment contrary to Article 3 of the Convention
and that his detention amounted to a breach of Article 5 § 1 of
the Convention.
On
4 October 2010 the President of the Fourth Section of the Court
decided, in the interests of the parties and the proper conduct of
the proceedings, to indicate to the Government that the applicant
should not be expelled to Iraq until 21 January 2011 (Rule 39 of the
Rules of Court).
On
16 December 2010 a Chamber of the Fourth Section of the Court decided
to give notice of the application to the Government. It also decided
to rule on the admissibility and merits of the application at the
same time (Article 29 § 1) as well as to extend the interim
measure mentioned above pending the termination of the proceedings
before the Court.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
A. Relevant background to the present case
It
would appear from the case file that the salient fact in the domestic
proceedings was the applicant’s association with the mujahedin
in Bosnia and Herzegovina (“BH”).
The term mujahedin has been widely used to refer to foreigners –
mainly from the Arab world – who came to BH during the war in
support of Bosnian Muslims.
However, the same term has been used to describe local Muslims who
joined the foreign mujahedin, endorsed their ideology and adjusted to
their way of dressing. The phenomenon has been explained by the
International Criminal Tribunal for the former Yugoslavia (“ICTY”)
in HadZihasanović and Kubura, IT-01-47-T, §§ 411 18,
15 March 2006, and Delić, IT-04-83-T, §§
166-199, 15 September 2008, as follows.
The first foreign mujahedin arrived in BH in the summer
of 1992 via Croatia and with the assistance of the Croatian
authorities. It would appear that their arrival was welcomed by the
BH authorities. While the presence of at least some foreign mujahedin
seems to have been motivated by a desire to provide humanitarian
assistance to the Bosnian Muslim population, most of them actively
supported the military struggle against the Bosnian Muslims’
adversaries, ready to conduct a jihad or “holy war”. As
stated by Ali Hamad, an ICTY witness of Bahraini origin who came to
BH in 1992, some of the mujahedin were members of al-Qaeda who had
the aim of “creating a base that would allow them to increase
their area of operations”. Some of them also came to perform
missionary work.
Upon
arrival, foreign mujahedin settled in various locations and did not
form a homogeneous entity. Towards the end of 1992, Bosnian Muslims
started to join the foreign mujahedin. The locals were provided with
military training and participated in combat action. They were also
given religious instruction. A number of groups comprising foreign
and/or local mujahedin were active. Notwithstanding instances of
participation in combat alongside each other, it appears that these
groups were anxious to maintain their distinct identities. There were
religious and ideological differences between them, which resulted in
occasional violent clashes.
On
13 August 1993 the foreign mujahedin were organised into a unit
within the local ARBH (Army of the Republic of Bosnia and
Herzegovina) forces.
The unit, named “El Mujahedin”, was based in
Zenica. Following its establishment, the unit significantly grew in
size. By 1995, it consisted of around 1,000 fighters. Although the
original idea had been to replenish the unit with foreign mujahedin
only, locals soon outnumbered its foreign members. The factors that
motivated locals to join it included: its stricter regimental
discipline; a better degree of organisation; superior equipment and
combat morale; its religious dedication; and material benefits. The
unit received funds and assistance from many organisations and
individuals from the Islamic world, including the Al-Haramain Islamic
Foundation
and the Benevolence International Foundation.
The Islamic Cultural Institute in Milan provided logistical support.
El
Mujahedin had a number of features setting it apart from regular
ARBH units. It was led by foreign mujahedin who were not appointed by
the ARBH. At the top of the hierarchy was an emir, who has
been described as the highest-ranking person within the unit. Abu
Haris, a Libyan, was its first emir. In December 1993, he was
succeeded by an Algerian, Abu Maali, who remained in that position
until the end of the war. A different person from the emir,
the military commander, headed the military council and was
responsible for the conduct of combat operations. In 1993, this post
was held by an Egyptian named Vahidin or Wahiuddin. After his death
in October 1993, another Egyptian, Muatez, succeeded him. Muatez was
killed in September 1995. The unit had a religious council, the
shura, which was its supreme decision-making body. It
consisted of approximately twenty prominent members of the unit,
mostly of Arab origin. The emir was elected by and answerable
to the shura. At the end of 1994, Sheikh Shaban joined the
leadership of the unit. He was the head of the Islamic Cultural
Institute in Milan and known to be an extremist who was
well-connected with Islamic fundamentalists all over the world (the
ICTY relied in that regard on a judgment of the Milan Criminal Court
of 1 January 2006). He facilitated the recruitment of volunteers from
Arab countries for the struggle in BH. Although Sheikh Shaban did not
hold an official function within the unit, its members considered him
to be the political authority and even the real emir within
the unit. He could issue binding rulings (fatwa) and his
authority was never challenged by the shura. Sheikh Shaban was
killed, together with Abu Haris, at an HVO (Croatian Defence
Council)
military checkpoint on 14 December 1995.
The
General Framework Agreement for Peace, which ended the war in BH, was
initialled at a military base near Dayton, the United States, on
21 November 1995 and signed in Paris, France, on 14 December
1995. Article III of Annex 1A to that Agreement called for the
withdrawal of all foreign forces, including individual advisors,
freedom fighters, trainers, volunteers, and personnel from
neighbouring and other States, irrespective of whether they were
legally and militarily subordinated to any of the local forces. In
view of that, on 14 December 1995 the ARBH disbanded El Mujahedin
and ordered its foreign members to leave the country by 10 January
1996. Despite initial resistance, the shura accepted that the
unit be disbanded. It would appear that awards, such as the “Golden
Lily”, were given to its members as an incentive for foreigners
to leave. Members of the unit were also provided with ARBH
certificates of service, which assisted its foreign members to
acquire BH citizenship. Whereas most of the unit’s foreign
members left BH, some of them (such as the present applicant) applied
for BH citizenship and continue to live in BH to date.
After
the attacks of 11 September 2001, the official attitude towards
foreign mujahedin changed dramatically. Many lost their BH
citizenship or were deported from BH after being declared a threat to
national security.
B. The present case
The
applicant was born in Iraq in 1960.
He
went to Bosnia and Herzegovina to pursue his studies in 1979. He
first studied in Sarajevo and in 1983 moved to Zenica. In 1987 the
applicant married a citizen of Bosnia and Herzegovina. They have five
children together.
During
the 1992-95 war in Bosnia and Herzegovina, the applicant joined El
Mujahedin unit mentioned above.
The applicant acquired citizenship of Bosnia and
Herzegovina (“BH citizenship”) on three occasions: on 23
March 1992, on 12 January 1995 (under the name of Awad Fadhil) and
again on 20 February 1995. He has visited Iraq twice since the
1992-95 war, in 2003 and 2004. The applicant possesses an Iraqi
passport, issued by the Iraqi Embassy in Vienna on 23 January
2007, which was valid until 22 January 2011.
On
30 August 2006 the competent administrative authorities established
that the applicant’s BH citizenship had been acquired by means
of fraudulent conduct, false information and concealment of some
relevant facts (notably, the fact that he already possessed BH
citizenship when he lodged the second application for naturalisation
and that he had used documents issued in two different names) and
quashed the decisions of 23 March 1992 and 20 February 1995. On
12 January 2007 the Court of Bosnia and Herzegovina (“the State
Court”) quashed the part of the decision of 30 August 2006
concerning the decision of 20 February 1995 and remitted the case for
retrial.
Meanwhile, on 6 June 2007 the applicant filed a
request for a temporary residence permit. On 28 September 2007 the
Aliens Service suspended those proceedings pending the final
resolution of the applicant’s citizenship status.
On
27 November 2008 the competent administrative authorities quashed the
decision of 20 February 1995 again. On 3 December 2009 the State
Court upheld that decision. On 1 February 2010 the applicant appealed
to the Constitutional Court of Bosnia and Herzegovina (“the
Constitutional Court”). It appears that those proceedings are
still pending. This does not, however, prevent the applicant’s
potential deportation, as he became an unlawful resident from the
moment of the notification of the decision of 27 November 2008.
The applicant, on the other hand, claimed that he still possesses BH
citizenship based on a decision of 12 January 1995 (see paragraph 16
above). That decision was, however, issued in the name of another
person (Awad Fadhil) and cannot, therefore, confer any rights on the
applicant, as was confirmed in the Government’s observations on
the admissibility and merits of the case.
On 23 June 2009 the Aliens Service established that the applicant was
a threat to national security and placed him in Istočno Sarajevo
Immigration Centre. It relied on secret intelligence reports. On 30
June 2009 the State Court, having assessed the secret evidence,
upheld that decision. On 17 September 2009 the Constitutional Court
dismissed the applicant’s appeal as manifestly ill-founded. The
initial detention period had been extended on a monthly basis until
April 2011 when the applicant was released (see paragraph 26 below).
After
the decision revoking the applicant’s citizenship of
27 November 2008 had become final, the proceedings before the
Aliens Service concerning a request for a temporary residence permit
were resumed at the applicant’s request (see paragraph 18
above). On 8 January 2010 the Aliens Service refused his request and
granted him a period for voluntary departure of fifteen days. On 2
March 2010 the Ministry of Security upheld that decision. On 1 June
2010 the State Court upheld the decision of 2 March 2010. On 21 April
2011 the applicant appealed to the Constitutional Court. It would
appear that those proceedings are still pending.
On
17 February 2010 the applicant claimed asylum. He maintained that
Iraqi citizens who had joined the foreign mujahedin during the war in
Bosnia and Herzegovina were treated in Iraq as suspected terrorists
and were subjected to ill-treatment. He added that his friend had
informed him that his name was on a “black list” and that
his family was subjected to threats and ill-treatment due to their
affiliation with the Ba’ath Party. The applicant also claimed
that he would be persecuted by Shia Muslims and Kurds upon his return
to Iraq (Kirkuk) because he is a Sunni Muslim.
On 23 February 2010 the Asylum Service interviewed the
applicant in the presence of his lawyer and a UNHCR representative.
It also had regard to reports of the US Department of State, the
UNHCR, the International Organization for Migration and the UK Border
Agency on Iraq. At the interview the applicant stated that he has
visited Iraq twice since the change of regime, in 2003 and 2004.
During both visits he stayed with his family in Kirkuk. In 2003 he
went to visit his sick father and stayed for one and a half months.
He took care of his father and accompanied him to the hospital on
several occasions. In 2004 the applicant went to Kirkuk to hold a
commemoration for his father and remained there for the whole month
of Ramadan and the Bayram holiday. However, he claimed that during
these visits he had been forced to hide in fear of the Kurdish
authorities as his friend had told him that he was under surveillance
and that his name was on a “black list”. The applicant
further claimed that in his subsequent contact with his family, after
he had returned to Bosnia and Herzegovina, they had told him that the
Kurds had searched their home looking for him. On 4 March 2010 the
Asylum Service refused the asylum claim and granted him a period for
voluntary departure of fifteen days. The Asylum Service held that the
applicant’s statements were contradictory and that he had not
provided any evidence in support of his claims.
On 26 May 2010 the State Court quashed that decision
and remitted the case for a retrial stating that the Asylum Service
should make a more thorough assessment of the applicant’s
claim. On 21 June 2010 the Asylum Service refused the applicant’s
request for asylum and granted him a period for voluntary departure
of fifteen days. On 22 September 2010 the Court of Bosnia and
Herzegovina upheld that decision. On 19 November 2010 the applicant
appealed to the Constitutional Court against that decision. On
9 February 2011 the Constitutional Court dismissed the
applicant’s appeal as manifestly ill-founded. It held that,
although the general situation in Iraq was insecure and problematic,
the applicant had not proved that there was a real risk of treatment
contrary to Article 3 of the Convention on account of his personal
circumstances.
On 8 November 2010 the Aliens Service issued a
deportation order accompanied with an entry ban for a period of five
years. It stated, however, that removal directions would not be
issued for as long as the Court’s interim measure was in force.
On 3 December 2010 the Ministry of Security upheld that decision. On
16 March 2011 the State Court also upheld the deportation order. An
appeal is pending before the Constitutional Court.
On 5 April 2011 the State Court ordered the
applicant’s immediate release from the
immigration centre, quashing the last extension order (of 21 March
2011) as unlawful. It held that the relevant authorities had not
provided any new evidence as a basis for the applicant’s
continued detention. Furthermore, it prescribed the lesser measure of
surveillance limiting the applicant’s freedom of movement to
his home address in Zenica with the obligation to report daily to the
Aliens Service field office in Zenica. It also ordered the
confiscation of the applicant’s Iraqi passport and other
personal documents he might use in an attempt to leave the country.
The applicant was released from detention on 7 April 2011.
II. RELEVANT DOMESTIC LAW
A. Secret Data Act 2005
The
Secret Data Act 2005 (Zakon o zaštiti tajnih podataka,
Official Gazette of Bosnia and Herzegovina nos. 54/05 and 12/09)
entered into force on 17 August 2005. Section 5 of that Act provides
that the judges of the State Court and the Constitutional Court have
access to all levels of secret data without any formalities (such as
security clearance or special authorisation), if such access is
required for exercising their duties.
B. Aliens Act 2008
1. Eligibility for international protection (refugee
status and subsidiary protection) and for leave to remain on
humanitarian grounds
The
Aliens Act 2008 (Zakon o kretanju i boravku stranaca i azilu,
Official Gazette of Bosnia and Herzegovina no. 36/08) entered into
force on 14 May 2008. Section 105 thereof provides that a refugee is
an alien who, owing to a well-founded fear of being persecuted for
reasons of race, religion, nationality, political opinion or
membership of a particular social group, is outside his or her
country of nationality and is unable or, owing to such fear, is
unwilling to avail himself or herself of the protection of that
country, or a stateless person, who, being outside the country of
former habitual residence, is unable or, owing to such fear, is
unwilling to return to it. The same provision defines a person
eligible for subsidiary protection as an alien who does not qualify
as a refugee but in respect of whom substantial grounds have been
shown for believing that he or she would face a real risk of the
death penalty or execution, torture or inhuman or degrading treatment
or punishment in the country of origin or in the country of habitual
residence, or there is a serious, individual threat to a civilian’s
life or person by reason of indiscriminate violence in situations of
international or internal armed conflict, and who is unable, or,
owing to fear, is unwilling to avail himself or herself of the
protection of that country.
The
principle of non-refoulement is incorporated in section 91 of
the Act, which reads as follows:
“An alien shall not be returned or expelled in any
manner whatsoever to the frontiers of territories where his or her
life or freedom would be threatened on account of race, religion,
nationality, membership of a particular social group or political
opinion, regardless of whether or not the person concerned has been
granted international protection. The prohibition of return or
expulsion (non-refoulement) shall also apply to persons
in respect of whom there is a reasonable suspicion for believing that
they would be in danger of being subjected to torture or other
inhuman or degrading treatment or punishment. An alien may not be
returned or expelled to a country where he or she is not protected
from being sent to such a territory either.”
Pursuant
to section 118 of the Act, an alien whose claim for international
protection has been refused will nevertheless be granted leave to
remain on humanitarian grounds, if his or her removal would breach
the principle of non-refoulement. However, the alien concerned
must be placed in detention if it has been established that he or she
constitutes a threat to public order or national security.
2. Deportation order and removal directions
Under section 88(1)(h) of the Aliens Act 2008 the
deportation of an alien can be ordered if it has been established
that he or she constitutes a threat to public order or national
security. An appeal against a deportation order suspends deportation
(section 87 of that Act). A claim for international protection and an
application for judicial review against a refusal of such a claim
equally suspend deportation (sections 92, 109(9) and 117 of that
Act). Pursuant to section 93 of that Act, once an alien has become
expellable, removal directions are issued within seven days. An
appeal against removal directions does not suspend deportation.
3. Detention of aliens
30. In accordance with section 99(2)(b) of the 2008 Act, an
alien must be detained if it has been established that he or she
constitutes a threat to public order or national security,
irrespective of whether a deportation order has been issued. Once a
deportation order has been issued, the alien concerned may also be
detained under section 99(1)(a) of that Act. An initial detention
order is valid for 30 days (section 100(3) of that Act). It may be
extended any number of times for up to 30 days at a time. However,
the total period of detention may only exceed 180 days in exceptional
circumstances, such as if an alien prevents his or her removal or if
it is impossible to remove an alien within 180 days for other reasons
(see section 102 of that Act).
III. INTERNATIONAL TEXTS
A. Concerning Bosnia and Herzegovina
The
General Framework Agreement for Peace, which put an end to the
1992-95 war in Bosnia and Herzegovina, was initialled at a military
base near Dayton, the United States, on 21 November 1995 and signed
in Paris, France, on 14 December 1995. It entered into force on the
latter date.
Pursuant
to Article III of Annex 1A to that Agreement, all foreign forces,
including individual advisors, freedom fighters, trainers,
volunteers, and personnel from neighbouring and other States,
irrespective of whether they were legally and militarily subordinated
to any of the local forces, had to be withdrawn from Bosnia and
Herzegovina by 13 January 1996.
B. Concerning Iraq
The
relevant part of the 2010 Human Rights Report on Iraq, published by
the Human Rights Office of the United Nations Assistance Mission in
Iraq (UNAMI), reads as follows:
“The human rights situation in Iraq remains
fragile as the country continues to emerge from years of
dictatorship, warfare and violence. While the government continues to
take some measures aimed at improving the protection and provision of
human rights and its citizens, given the challenges that the country
faces, progress is slow. Iraq continues to transition from a conflict
to post-conflict country which faces enormous development challenges
that the Government and people of Iraq must now address. Widespread
poverty, economic stagnation, lack of opportunities, environmental
degradation and an absence of basic services constitute “silent”
human rights violations that affect large sectors of the population.
Other factors that affected the human rights environment in 2010
included the inconclusive results of the general elections leading to
a long process of government formation that was not concluded until
December 2010. It is believed that this fuelled instability, but also
led to a degree of inactivity in relation to implementing reforms and
other measures aimed at ensuring the respect, protection and
provision of human rights to the Iraqi population. Also affecting
security was the withdrawal of all USF-I combat troops during the
year which was completed in August 2010.
...
Armed violence continued to impact negatively on
civilians and civilian infrastructure. Civilians were subjected to
arbitrary loss of life and injury, but also limiting access to, and
enjoyment of, other basic rights, including, but not limited to, the
right to access basic humanitarian services, and the right of
assembly, freedom of expression, freedom of religion, etc. It also
negatively impacted on economic development. Arbitrary or deliberate
targeting of civilians also constitutes serious violations of
applicable rules of human rights law and international humanitarian
law. The number of civilians who died from armed violence in 2010
range from 2,953 killed and 14,398 wounded according to UNAMI to
3,254 dead and 13,788 wounded according to figures provided by the
Ministry of Human Rights (MoHR) of the Government of Iraq.
...
Minorities suffered from various attacks throughout Iraq
during 2010. In particular Christians, Yezidi and Shabaks, among
other minorities, continued to be directly targeted during the year –
resulting in some displacement of members of minority groups within
the country and internationally, particularly of Christians.”
The
United Nations and the International Organisation for Migration (IOM)
have stated that, although they “do not necessarily encourage
return at this time because of security concerns, both are committed
to providing assistance to those who do decide to return” (IOM,
Assessment of Iraqi Return, August 2008). Moreover, the Iraqi
Government have initiated a financial incentive and subsidy programme
for returnee families and they are working to develop their capacity
to register and assist the increasing number of returnees (IOM, cited
above). The IOM has further noted that the rate of displacement in
Iraq has slowed and that the rate of return has accelerated, mostly
to Baghdad (IOM, Review of Displacement and Return in Iraq,
February 2011). According to the IOM, general insecurity is the
primary reason preventing Iraqis from returning home.
C. Reports on the security situation in Kirkuk
According
to a report of 18 December 2006 by the United Nations High
Commissioner for Refugees (UNHCR Return Advisory and Position on
International Protection Needs of Iraqis Outside Iraq), no forcible
return of Iraqis from Southern or Central Iraq should take place
until there was a substantial improvement in the security and human
rights situation in the country.
In
a follow-up report of August 2007 (UNHCR’s Eligibility
Guidelines for Assessing the International Protection Needs of Iraqi
Asylum-Seekers), the UNHCR encouraged the adoption of a prima
facie approach for Iraqi asylum-seekers from Central and Southern
Iraq and stated that they should be considered as refugees based on
the 1951 Convention relating to the Status of Refugees in
signatory countries. In its more recent Eligibility Guidelines of
April 2009, the UNHCR observed that in view of the serious
human rights violations and ongoing security incidents which were
continuing in the country, most predominantly in the five Central
Governorates of Bagdad, Diyla, Kirkuk, Ninewa and Salah-Al-Din, the
UNHCR continued to consider all Iraqi asylum seekers from these five
Central Governorates to be in need of international protection and
stated that, in signatory countries, they should be considered as
refugees based on the 1951 Convention criteria (see paragraph 12 of
the Guidelines). The Guidelines observed inter alia:
“27. In the context of the Central
Governorates of Baghdad, Diyala, Kirkuk, Ninewa and Salah Al-Din
where, even though the security situation has improved in parts,
there is still a prevalence of instability, violence and human rights
violations by various actors, and the overall situation is such that
there is a likelihood of serious harm. Armed groups remain lethal,
and suicide attacks and car bombs directed against the MNF-I/ISF
[Multinational Forces in Iraq/Iraqi Security Forces], Awakening
Movements and civilians, in addition to targeted assassinations and
kidnappings, continue to occur on a regular basis, claiming the lives
of civilians and causing new displacement. These methods of violence
are usually targeted at chosen areas where civilians of specific
religious or ethnic groups gather, including places of worship,
market places, bus stations, and neighbourhoods. Violence appears
often to be politically motivated and linked to ongoing struggles
over territory and power among various actors. As clarified above,
even where an individual may not have personally experienced threats
or risks of harm, events surrounding his or her areas of residence or
relating to others, may nonetheless give rise to a well-founded fear.
There is also more specific targeting of individuals by extremist
elements of one religious or political group against specific
individuals of another, through kidnappings and execution-style
killings.”
As regards Kirkuk, the
Guidelines included the following observations (footnotes omitted):
“202. Most violence in the Governorate is linked
to the yet unresolved administrative status of Kirkuk and related
power struggles between the various Arab, Kurdish and Turkmen actors.
Security conditions in Kirkuk Governorate, and in particular in
Kirkuk City, tend to worsen during political events related to the
status of Kirkuk as armed groups aim at influencing political
decisions. For example, during intense negotiations over a provincial
elections law in summer 2008, a suicide attack on demonstrating Kurds
resulted in an outbreak of inter-communal violence, in which more
than 25 people were killed and over 200 injured. Conversely, tensions
and sporadic violence can complicate future status negotiations. With
the postponing of provincial elections in Kirkuk, the security
situation has somewhat stabilized. However, simmering inter-communal
tensions are prone to erupt into new violence ahead of decisions to
be taken in relation to Kirkuk’s unresolved status. Some
observers note that tensions among ethnic groups over the unresolved
status of Kirkuk could turn into another civil war. Insurgent groups
such as AQI [Al-Qaeda in Iraq] also aim at stirring inter-communal
violence by attacking proponents of ethnic/religious groups.
Furthermore, it has been reported that community groups in Kirkuk are
arming themselves in preparation for future clashes.
203. Kirkuk’s Arab and Turkmen communities
complain of harassment, intimidation, arbitrary arrests and
demographic manipulation at the hands of the Kurds, who dominate the
Governorate’s political and security institutions. Kurdish law
enforcement personnel and political leaders are in turn popular
targets for assassination. PUK and KDP offices are also a regular
target of attacks. Recently, two members of the Kurdistan Communist
Party have been killed in their homes in Kirkuk. The brother of a
high-ranking member of the same party was also killed. Religious and
ethnic minorities often find themselves caught up in the middle of
struggles for power and territory.
204. In Kirkuk Governorate, there are regular roadside
bombings, shootings, and occasional car bombs and suicide attacks. On
11 December 2008, a suicide bomber killed 46 people and wounded
nearly 100 when he detonated his explosive vest in a restaurant
packed with government officials, women and children during lunch
near Kirkuk City. There are also targeted kidnappings and
assassinations, including of security officials, tribal leaders/SoI
[Sons of Iraq], government officials and employees, (mostly Kurdish)
party officials, members of minority groups [referring notably to two
incidents of attacks against Christians], journalists and other
professionals. Dead bodies continue to be found occasionally in
Kirkuk Governorate.”
In
July 2010 the UNHCR issued a Note on the Continued Applicability of
the April 2009 UNHCR Eligibility Guidelines for Assessing the
International Protection Needs of Iraqi Asylum-Seekers. It contained
the following information on security developments (footnotes
omitted):
“Under the Status-of-Forces Agreement (SOFA) of 30
June 2009, the Iraqi authorities have taken over full responsibility
for the security of the country. The former Multinational
Forces-Iraq/United States Forces-Iraq (former MNF-I/USF-I) have
withdrawn from Iraqi cities, towns and villages and operate from
their military bases at the request of the Iraqi Government.
Currently, the US is drawing down all combat forces and is expected
to complete this process by 31 August 2010. The Iraqi Security Forces
(ISF) have almost reached their intended end strength of about
680,000 members. Since spring 2009 the Iraqi Government has been
fully responsible for managing and integrating the largely Sunni
Awakening Councils or Sons of Iraq (SoI) groups into the ISF and
Iraqi government employment. This process is still ongoing and by
April 2010, of the 94,000 SoI, some 9,000 had transitioned into the
ISF and over 30,000 into other government employment.
The Iraq Body Count (IBC), a project which maintains
data on civilian deaths, reported that in 2009 the annual civilian
death toll was 4,644. Reports for 2010 indicate that some 2,000
Iraqis were killed and some 5,000 others were injured during the
first five months of 2010. An upsurge in violence was noted since the
7 March 2010 elections and casualty statistics for the months of
April and May 2010 reflect an increase in the numbers of Iraqis
killed and wounded in violence. Reports show that in 2009 and early
2010, insurgents carried out several mass-casualty attacks, including
on high-profile, highly guarded targets such as Iraqi government
institutions, prominent hotels and foreign embassies. The assaults
resulted in hundreds of civilians killed or injured in the attacks.
Al-Qa’eda in Iraq claimed responsibility for the attacks
against embassies in Baghdad and residential targets in mainly Shi’a
districts of the capital in early April 2010. The reported incidents
mostly took place in the central governorates of Baghdad, Diyala,
Kirkuk, Ninewa and Salah Al-Din as well as in Al Anbar, which
has seen an increase in violence since the summer of 2009. The
relatively stable security situation in the Southern governorates is
reportedly occasionally disrupted by mass-casualty attacks and low
level violence mainly in areas close to Baghdad. The Kurdistan Region
remains relatively stable, though there have been reported assaults
on journalists and political opponents.
Among other security related developments worth noting
is the start of the implementation of an interim joint security plan
for Kirkuk and other internally disputed areas by the USF-I. The plan
is based on joint action and coordination by the Iraqi Army and
Police as well as the Kurdistan Regional Government (KRG) Peshmerga.
Thus far, the joint security plan has resulted in the establishment
of a network of checkpoints and joint patrols around major cities,
and the training of security personnel. Addressing the overall issue
of the status of the “disputed areas” is among the
challenges that await the new Government. Crucial matters to be
resolved in this area include administrative boundaries, the control
of oil resources, minority rights and other matters.
Since early 2010, the ISF, with the help of the USF-I,
have arrested or killed a large number of senior insurgent leaders,
in particular members of Al-Qa’eda in Iraq. Ongoing attacks
illustrate that the groups are still intent on, and capable of,
attacks.
Reports indicate that the targeting of Government of
Iraq officials, members of the Iraqi security forces, Awakening
Council members and prominent citizens continue unabated. Among the
frequently targeted are Shiite civilians and pilgrims as well as
religious sites in different areas, religious and ethnic minority
groups mainly in Ninewa and Kirkuk Governorates (Yazidis, Turkmen,
Shabak and Kaka’i), and the Christian minority, mainly in
Ninewa, which includes 5,000 Christians displaced from Mosul in early
2010. Compared to 2008, there has been a significant increase in the
use of magnetic and adhesive bombs attached to vehicles as a weapon
to assassinate particular individuals. Profiles targeted include, in
particular, government officials and employees, party officials,
members of the Awakening Councils or Sons of Iraq (SoI), members of
the ISF (including off-duty members), religious and ethnic minorities
[referring to several incidents of attacks against Christians and a
suicide truck bomber in, a Shi’ite Turkmen town 20 km south of
Kirkuk destroying homes and damaging another 100 homes, affecting 600
people], Sunni and Shi’ite clerics, journalists, academics,
doctors, judges and lawyers, human rights activists and Iraqis
working for NGOs or the USF-I and foreign companies, alcohol vendors
(which are commonly Christians or Yazidis), women and LGBT
individuals.
...
III. Conclusion
The situation in Iraq is still evolving. UNHCR will
continue to monitor developments in the country and will update the
April 2009 UNHCR Guidelines once it judges that the situation is
sufficiently changed. In the interim, UNHCR advises those involved in
the adjudication of international protection claims lodged by
asylum-seekers from Iraq and those responsible for establishing
government policy in relation to this population continue to rely on
the April 2009 UNHCR Guidelines. Accordingly, the current UNHCR
position on returns to Iraq also remains unchanged.”
The
Country of Origin Information Centre (Landinfo), an
independent human rights research body set up to provide the
Norwegian immigration authorities with relevant information, has in a
report of 28 October 2008 stated the following about the
security situation in Kirkuk city (footnotes and references omitted):
“It is generally recognized that the level of
violence in Kirkuk is by far lower than that in Baghdad and Mosul.
The majority of the security incidents in the city
appear to be attacks against police and military. Most frequent are
attacks against road patrols, and against checkpoints and personnel.
These attacks both take place on the roads between Kirkuk and
surrounding areas and inside the city. Occasional civilian casualties
result from such attacks ... .
There are also occasional indiscriminate attacks aimed
directly at civilians, such as suicide attacks at crowded places
inside the city.
Additional types of targets have been recorded by
Landinfo since October 2005. These targets are very diverse.
There have been attacks on local Kurdish political leaders and their
families, on engineers and building contractors, oil business
executives, private security guards, gas station workers, churches,
Shiite mosques, polling stations, and at a Turkmen political party
office. In October 2008 an Iraqi journalist was killed.
The intensity of attacks against all target groups seems
to have remained quite stable over the years. Between September 2005
and March 2006, 44 reported incidents were recorded ... . During
November and December 2006, a total of 30 individuals were reported
killed in violent incidents (DMHA 2006).
In March 2008, it was reported that violence had gone up
since 2006, and that security remained highly unstable ... .
According to the US military commander in Kirkuk, by the summer of
2008 violence had dropped by two thirds as compared to the summer of
2007 ... . Figures indicate that since August 2008, violence remains
stable through October ... .
We do not have figures for the summer of 2007, nor do we
know for how long period of time ‘summer’ refers to. What
the sources indicate, however, is that violence went up by March
2008, then down again by summer the same year, and that it seems to
have stabilized somewhat afterwards. With the reservation that we
don’t have exact figures to substantiate this trend, we do see,
however, that the occurrence of violence is unstable through a fairly
short period of time.
The factors accounting for the security problems
continue to be present for the foreseeable future. Accordingly, an
unstable level of violence may be expected to continue”.
A
Thematic Note by Landinfo on the Security Situation in Kirkuk
City and the Surrounding Areas (Temanotat IRAK:
Sikkerhetssituasjonen i Kirkuk by og områdene rundt), dated
16 March 2010, summarised the situation as follows:
“During the last two years, the security situation
in Kirkuk has shown a decreasing level of activity on the part of
armed groups, in spite of a persistent high level of political
tension connected to the disputed political status of the city.
Still, both Kirkuk city and Kirkuk province continue to be plagued by
persistent political violence. There are no clear signs of open
conflict between the Kurds, Arabs and Turkmen population groups, but
widespread mutual mistrust seems to prevail along with a possibly
increasing physical segregation between them. In this environment,
militants continue to carry out attacks.
The armed groups operating in Kirkuk, Hawija and Tuz
Khormatu are all Sunni Moslem. They appear as periodically connected
to each other logistically, and to be coalescing over time.”
In Section 2 of the Note
it was observed inter alia that the conflict related violence in
Kirkuk had continuously decreased since 2007 and had in 2009 reached
its lowest level since 2004. Nonetheless, politically motivated
violence still occurred on a daily basis. There were otherwise no new
patterns of acts of violence. It was still the situation that such
acts were primarily targeting authorities, the army and the political
milieu. However, the casualties among the civilian population were
considerably higher than those of the target groups. The level of
political violence appeared relatively low in view of the continuous
political tensions related to the unclear political status of the
city. At the same time, the political violence was directly linked to
unresolved political questions. Both Kurdish regional authorities and
the national central authorities claimed a right to governance in the
city. There was little information available which systematically
presented the situation in the province for each of the three ethnic
groups – Kurds, Arabs and Turkmens. According to the newspaper
Today’s Zaman of 10 February 2010, the local police was
composed of 36% Kurds, 39% Arabs and 26% Turkmens. In the
Kurdish areas of the city there were both Kurdish and Turkmen
officers. In the Hawija district west of Kirkuk, the officers were
Arabs. Even though the different groupings were reasonably well
represented within public administration and education, distrust
between them had frequently been reported since 2003.
The
UK Border Agency (Home Office) Country of Origin Information Report
of 30 August 2011 provided the following information (footnotes
omitted):
“8.80 The UNSC [United Nations Security Council]
Report July 2010, dated 29 July 2010, covering events since 14 May
2010 noted that: ‘Kirkuk has been generally stable since the
previous reporting period. On 8 June [2010], shots were fired at a
USF-I/United Nations convoy travelling in Kirkuk, resulting in one
USF-I soldier being wounded. No UNAMI staff members were injured and
the convoy immediately returned to Forward Operating Base Warrior.’
However the subsequent UNSC Report November 2010,
published 26 November 2010, observed that: ‘[t]he withdrawal of
the United States Forces in Iraq is likely to have a short- to
medium-term effect on the security situation’.
8.81 The Danish FFM Report on Security and Human Rights
in South/Central Iraq conducted February – April 2010,
published 10 September 2010 citing a reliable source in Iraq stated:
‘... that Kirkuk, with its unique status, is a completely
different matter. The situation is fragile and Iraqi Security Forces
(ISF) and US forces have a strong presence in the area. AQIs [Al
Qaeda in Iraq] and insurgent groups’ presence contribute to
making the situation particularly volatile, and there are reports
that AQI is using children as suicide bombers or combatants in
Kirkuk.’
See also the section heading on Northern Iraq which
highlighted that in February 2011 Kurdish Peshmerga troops
entered Kirkuk governorate in violation of agreed security procedures
in place between Kurdish and Iraqi forces.”
The
third report of the UN Secretary-General to the UNSC, pursuant to
paragraph 6 of resolution 1936 (2010), included inter alia the
following observations:
“II. Summary of key political developments
pertaining to Iraq
A. Political developments
...
8. In Kirkuk, Kurdish
parties holding the two most senior political posts, Governor and
Chairman of the Provincial Council, agreed to give up the latter, as
a gesture of goodwill in order to move the political process forward
and to accommodate a long-standing demand by Turkmen and Arab
components. Hassan Turan (Turkmen) was elected to the post of
Chairman, Najmaldin O. Karim (Kurdish) was appointed as the new
Governor and Rakan Sa’id al-Jubouri (Arab) remained Deputy
Governor.
9. On 31 March,
Kurdish Peshmerga troops that had been deployed around the city of
Kirkuk since 25 February 2011 withdrew and returned to the Kurdistan
region. The incident served as a reminder of the challenges that
remain as the United States Forces in Iraq draw down and the combined
security mechanism comes to an end. The combined security mechanism
was established to encourage Iraqi security forces and Kurdish
Peshmerga troops to coordinate their operations, set up joint patrols
and checkpoints and exchange information under the auspices of the
United States Forces. The Government of Iraq and the Kurdistan
Regional Government have yet to agree on the future of the combined
security mechanism or any successor arrangements that could be put
into place after the departure of the United States Forces.
10. The United States
Forces in Iraq have continued their planned withdrawal from the
country with the intention of completing their departure by 31
December 2011, as envisaged under the status-of-forces agreement
signed between the Governments of Iraq and the United States of
America. Discussions have been ongoing regarding the possibility of
some United States forces remaining beyond 2011 to provide training
and support. The Prime Minister has stated that the issue would be
decided on a consensus basis through dialogue among the political
blocs, as formal agreement would require approval by the Council of
Representatives.
...
III. Activities of the United Nations Assistance
Mission for Iraq
A. Political activities
21. The standing
consultative mechanism met several times during the reporting period.
This initiative, which was launched in March 2011 under the auspices
of UNAMI, brings together representatives of key political blocs to
discuss outstanding issues related to disputed internal
territories, including Kirkuk. The participants include
representatives of the three main political blocs: Deputy Prime
Minister Rowsch Shaways (Kurdistan Alliance), Member of Parliament
Hassan al-Sunaid (National Alliance) and Finance Minister Rafi
al-Issawi (Iraqiya). The participants agreed to focus on the
following issues: (a) Kirkuk, including powersharing issues and
conducting provincial council elections; (b) Ninewa, the current
political stalemate, power-sharing and security issues; (c) the
future of the combined security mechanism; and (d) the census. On 25
April, participants agreed that subsequent meetings would be expanded
to include local stakeholders from the Kirkuk and Ninewa
governorates. On 16 June, a meeting was held that brought together
for the first time all members of the Council of Representatives from
Kirkuk in order to discuss issues related to power-sharing and the
prospects of holding provincial council elections in Kirkuk.
...
E. Human rights activities
41. The reporting period witnessed a significant rise in
assassinations of political leaders, government officials and
security personnel. ... Assassination attempts were carried out
against a Turkmen Member of Parliament from Kirkuk ... on 12 ... May
....
42. Honour crimes committed against women are a
continuing source of concern. UNAMI recorded the deaths in suspicious
circumstances of nine women between April and May in Kirkuk. Police
informed UNAMI that three of the deaths were listed as suicides and
four as murders carried out by unknown persons, while the causes of
death of the other two women were unconfirmed but regarded as
suspicious. ...
43. There continue to be sporadic reports of children
experiencing acts of indiscriminate violence and abductions. ... On 2
April, in Kirkuk, criminal gangs abducted a 6-year-old girl who was
later released after a ransom was paid. On 21 April, a
12-year-old boy was abducted in Kirkuk; his fate remains unknown.
44. During the reporting period, a number of public
demonstrations were held, most of them peaceful. ...
F. Security, operational and logistical issues
50. During the reporting period, the United Nations
continued to operate in a challenging security environment. On 5 May,
a car bomb targeted the Iraqi police headquarters in Hilla, killing
30 policemen. In another incident on 19 May, a complex attack on the
Kirkuk Provincial Joint Coordination Centre left 20 people dead and
80 injured, including Iraqi police and civil defence members. This
particular attack is believed to have been in response to the recent
successful efforts by Iraqi security forces to locate weapons caches
and key personnel wanted for terrorist attacks. ...
52. During the reporting period, UNAMI has been working
on the transition of security support from the United States Forces
to the Iraqi security forces. On 24 April, the Iraqi National
Security Council requested that the Office of the High Commander of
the Armed Forces, in coordination with the Ministry of Defence and
the Ministry of the Interior, support UNAMI protection requirements.
53. During the reporting period, UNAMI also took steps
to put in place the necessary logistical arrangements to substitute
the support of the United States Forces. UNAMI is also continuing
preparations to ensure that it is able to sustain its presence in
Kirkuk and Basra.
54. With support from the United Nations standing police
capacity, a start-up team of four UNAMI police liaison personnel have
been deployed to Baghdad, Erbil and Kirkuk to engage and coordinate
UNAMI operations with the Ministry of the Interior and Iraqi police.
...
IV. Observations
...
60. Although the status of Kirkuk and other disputed
internal territories remain
divisive issues, I am encouraged by recent efforts by key
Iraqi stakeholders to find common ground. Through the standing
consultative mechanism under UNAMI auspices, political leaders,
members of parliament and local representatives of Kirkuk have
engaged in a dialogue on critical issues that will affect the future
of Kirkuk and other disputed areas, including future security
arrangements. I encourage the Government of Iraq and the Kurdistan
Regional Government to continue to use this important forum to find
mutually acceptable solutions that ultimately serve the interests of
national reconciliation and long-term stability. The United Nations
stands ready to assist in this process upon the request of the
Government.”
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION
The
applicant alleged that his deportation to Iraq would expose him to a
risk of treatment contrary to Article 3, which reads as follows:
“No one shall be subjected to torture or to
inhuman or degrading treatment or punishment.”
The
Government maintained that this complaint should be rejected as
premature as the case was still pending before the Constitutional
Court.
The
Court notes that, in the meantime, the Constitutional Court examined
the applicant’s complaint concerning Article 3 of the
Convention and dismissed it as manifestly ill-founded (see paragraph
24 above). The Government’s objection must therefore be
dismissed.
The
applicant alleged that he would be perceived as a terrorist and a
traitor by the Iraqi authorities because of his association with the
foreign mujahedin in Bosnia and Herzegovina, the fact that he had
been declared a threat to national security in Bosnia and Herzegovina
and because he had refused to join the Iraqi army during the war with
Iran. In his observations of June 2011, the applicant claimed that
his father had died in 2003 as a result of beatings inflicted by
Peshmerga, Kurdish security forces. He also claimed that his brother,
a war invalid since 1984, had died because the Kurdish authorities
had prevented him from receiving his medication. Some other members
of his family had also allegedly been beaten to death by Peshmerga or
had had to flee the country to an unknown location owing to their
affiliation with the Ba’ath party. The applicant further
alleged that his family was constantly subjected to ill-treatment and
threats on account of being Sunni Arabs and that the Kurds had
forcibly entered their house on several occasions. The applicant
claimed that, being a Sunni Muslim, he feared both Shia Muslims and
Kurds, who are in the majority in Kirkuk.
The
Court reiterates that as a matter of well-established international
law and subject to its treaty obligations, including those arising
from the Convention, a Contracting State has the right to control the
entry, residence and expulsion of aliens (see, among many other
authorities, Üner v. the Netherlands
[GC], no. 46410/99, § 54, ECHR 2006 XII). The right to
asylum is not contained in either the Convention or its Protocols
(Salah Sheekh v. the Netherlands, no. 1948/04, § 135, 11
January 2007). Expulsion by a Contracting State may, however, 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 expelled,
faces a real risk of being subjected to ill-treatment. In such a
case, Article 3 implies an obligation not to expel that person to the
country in question (see Saadi v. Italy [GC], no. 37201/06,
§ 125, 28 February 2008). Since the prohibition of torture
or inhuman or degrading treatment or punishment is absolute, the
conduct of applicants, however undesirable or dangerous, cannot be
taken into account (ibid., §§ 127 and 138).
The
assessment of the existence of a real risk must be rigorous (see
Chahal v. the United Kingdom, 15 November 1996, § 96,
Reports of Judgments and Decisions 1996 V). As a rule, it
is for applicants to adduce evidence capable of proving that there
are substantial grounds for believing that, if the measure complained
of were to be implemented, they would be exposed to a real risk of
being subjected to treatment contrary to Article 3 (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. The Court will take as its basis all the material placed
before it or, if necessary, material obtained on its own initiative.
It will do so particularly when an applicant – or a third party
within the meaning of Article 36 of the Convention – provides
reasoned grounds which cast doubt on the accuracy of the information
relied on by the respondent Government. The Court must be satisfied
that the assessment made by the authorities of the Contracting State
is adequate and sufficiently supported by domestic materials, as well
as by materials originating from other reliable and objective sources
such as, for instance, other Contracting or non-Contracting States,
the United Nations’ agencies and reputable non-governmental
organisations (NA. v. the United Kingdom, no. 25904/07, §
119, 17 July 2008).
If
an applicant has not yet been deported when the Court examines the
case, the relevant time will be that of the proceedings before the
Court (Saadi v. Italy, cited above, § 133). A full and
up-to-date assessment is called for, as the situation in a country of
destination may change in the course of time. While the historical
position is of interest in so far as it may shed light on the current
situation and its likely evolution, it is the present conditions
which are decisive and it is hence necessary to take into account
information that has come to light after the final decision taken by
domestic authorities (see Salah Sheekh, cited above, §
136).
The
Court 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,
cited above, § 115, and Sufi and Elmi v.
the United Kingdom, nos. 8319/07 and 11449/07,
§§ 217-218 and §293, 28 June 2011).
Turning
to the present case, the Court notes that the applicant has visited
Iraq twice since the change of regime, in 2003 and 2004. However, the
applicant claimed that during these visits he had been forced to hide
in fear of the Kurdish authorities as his friend had told him that he
was under surveillance and that his name was on a “black list”,
and that, after he had left Iraq, the Kurds searched his family’s
home looking for him. On the other hand, not only did he not provide
any evidence in support of these statements, they also seem to be in
contradiction to what he previously said about his visits (see
paragraph 23 above). From his previous statements it would appear
that he moved freely in and out of public buildings and on the
streets during his visits (taking his sick father to hospital and,
afterwards, holding a commemoration for him). Moreover, on both
visits the applicant stayed in Kirkuk for more than one month. It
should be noted that the security situation in Iraq was much more
dangerous at the time of the applicant’s visits than it is now
(according to Iraq Body Count there were 12,087 civilian deaths
reported in 2003, 11, 072 in 2004 and 4,045 in 2010;
www.iraqbodycount.org
as downloaded on 16 November 2011). The Court has already had an
opportunity to assess the general security situation in Iraq (see
F.H. v. Sweden, no. 32621/06, § 9320, January 2009). In
that case, the Court held that while the general situation in Iraq
was insecure and problematic, it was not so serious as to cause, by
itself, a violation of Article 3 if that applicant, a Christian
and a member of the Ba’ath party, were to be returned there
(see also Müslim v. Turkey, no. 53566/99, 26 April 2005;
for a recent assessment of the security situation in Kirkuk, see
Agalar v. Norway (dec.), no. 55120/09, 8 November 2011).
Furthermore,
the applicant’s asylum claim was considered in detail and
rejected by the domestic authorities. The Court notes that their
assessment was adequate and sufficiently supported by domestic
materials as well as by materials originating from other reliable and
objective sources. Although the Court is aware that the UNHCR, the UN
and the 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. 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 are substantial grounds
for believing that the applicant would be at a real risk of being
subjected to treatment prohibited by Article 3 if he 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,
cited above, § 122).
Hence,
in the present case, having regard to the above considerations and
the fact that the applicant visited Iraq twice, at the time of the
upsurge of violence in that country, without any consequences, the
Court concludes that he did not adduce any evidence capable of
proving that there are substantial grounds for believing that, if
deported, he would be exposed to a real risk of being subjected to
treatment contrary to Article 3. Therefore, this complaint is
manifestly ill-founded and must be rejected pursuant to Article 35 §§
3 (a) and 4 of the Convention. In view of this conclusion, it is
appropriate to discontinue the application of Rule 39 of the Rules of
Court.
II. ALLEGED VIOLATION OF ARTICLE 5 § 1 OF THE
CONVENTION
The
applicant also contested the lawfulness of his detention relying on
Article 5 § 1 of the Convention, the relevant part of which
reads as follows:
“1. Everyone has the right to liberty and
security of person. No one shall be deprived of his liberty save in
the following cases and in accordance with a procedure prescribed by
law:
...
(f) The lawful arrest or detention of a person to
prevent his effecting an unauthorised entry into the country or of a
person against whom action is being taken with a view to deportation
or extradition.”
The
Government submitted that the applicant’s detention was in
keeping with domestic law, pursuant to which an alien must be
detained if it has been established that he or she constitutes a
threat to national security (see paragraph 30 above), and with
Article 5 § 1 (f) of the Convention. They further argued
that the period complained of was partly covered by the Court’s
interim measure under Rule 39 of the Rules of Court.
A. Admissibility
The
Court notes that this complaint is not manifestly ill-founded within
the meaning of Article 35 § 3 (a) of the Convention. It further
notes that it is not inadmissible on any other grounds. It must
therefore be declared admissible.
B. Merits
Article
5 enshrines a fundamental human right: the protection of the
individual against arbitrary interference by the State with his or
her right to liberty. The text of Article 5 makes it clear that the
guarantees it contains apply to “everyone”.
Sub-paragraphs (a) to (f) of Article 5 § 1 contain an exhaustive
list of permissible grounds on which persons may be deprived of their
liberty and no deprivation of liberty will be lawful unless it falls
within one of those grounds. One of the exceptions, contained in
sub-paragraph (f), permits the State to control the liberty of aliens
in an immigration context (see, among other authorities, A. and
Others v. the United Kingdom [GC], no. 3455/05, §§
162-63, 19 February 2009).
Sub-paragraph (f) of Article 5 § 1 does not
demand that the detention be reasonably considered necessary, for
example to prevent a person from committing an offence or fleeing. In
this respect, it provides a different level of protection from
sub-paragraph (c) of Article 5 § 1. All that is required under
this provision is that deportation proceedings be in progress and
prosecuted with due diligence (see Chahal, cited above, §§
112-13). The deprivation of liberty must also be “lawful”.
Where the “lawfulness” of detention is in issue,
including the question whether “a procedure prescribed by law”
has been followed, the Convention refers essentially to national law
and lays down the obligation to conform to the substantive and
procedural rules of national law. Compliance with national law is
not, however, sufficient: any deprivation of liberty should, in
addition, be in keeping with the purpose of protecting the individual
from arbitrariness – and the notion of “arbitrariness”
in Article 5 § 1 extends beyond lack of conformity with national
law, so that a deprivation of liberty may be lawful in terms of
domestic law but still arbitrary and contrary to the Convention (see
Saadi v. the United Kingdom [GC], no. 13229/03, §
67, ECHR 2008).
The
Government contended that the present applicant was lawfully detained
as a person against whom action was being taken with a view to
deportation under the second limb of Article 5 § 1 (f). However,
the Court notes that deportation proceedings against the applicant
were instituted on 8 November 2010 (see paragraph 25 above),
whereas the applicant was detained on 23 June 2009. Since detention
under Article 5 § 1 (f) is justified only for as long as
deportation proceedings are pending, the first period of the
applicant’s detention (lasting from 23 June 2009 until 8
November 2010) was clearly not justified under Article 5 § 1
(f).
The
Government emphasised that it had been established that the applicant
posed a threat to national security and that the domestic authorities
had therefore had no other option but to detain him pursuant to
section 99(2)(b) of the Aliens Act 2008 (see paragraph 30 above).
However, the Court has held that sub-paragraphs (a) to (f) of Article
5 § 1 amount to an exhaustive list of exceptions and that only a
narrow interpretation of these exceptions is compatible with the aims
of Article 5: detention on security grounds only is accordingly not
permitted (A. and Others, cited above, § 171). In
any event, at the time of his arrest the domestic authorities had the
ability to issue a deportation order against the applicant under
section 88(1)(h) of the Aliens Act 2008 and then detain him for
deportation purposes under section 99(1)(a) of that Act (see
paragraphs 29 and 30 above). The Government failed to offer any
explanation as to why this was not done.
The
matter has also been examined under the other sub-paragraphs of
Article 5 § 1, which were not pleaded by the Government. The
Court reiterates in this connection that sub-paragraph (c) does not
permit a policy of general prevention directed against a person or a
category of persons who are perceived by the authorities, rightly or
wrongly, as being dangerous or having propensity to unlawful acts. It
does no more than afford the Contracting States a means of preventing
offences which are concrete and specific as regards, in particular,
the place and time of their commission and their victims (see
Guzzardi v. Italy, 6 November 1980, § 102, Series A
no. 3; M. v. Germany, no. 19359/04, § 89
and 102, 17 December 2009; and Shimovolos v. Russia,
no. 30194/09, § 54, 21 June 2011).
Detention to prevent a person from committing an offence must, in
addition, be “effected for the purpose of bringing him before
the competent legal authority” (see Lawless v. Ireland (no.
3), 1 July 1961, § 14, Series A no. 3). Sub-paragraph (c)
thus permits deprivation of liberty only in connection with criminal
proceedings (see Ciulla v. Italy, 22 February 1989, § 38,
Series A no. 148, and Schwabe and M.G. v. Germany, nos.
8080/08 and 8577/08, § 72, 1 December
2011, not yet final). Since neither the domestic authorities
nor the Government mentioned any concrete and specific offence which
the applicant had to be prevented from committing, his detention was
not covered by sub-paragraph (c). The other sub-paragraphs of Article
5 § 1 are obviously not relevant.
The
Court therefore concludes that there was a violation of Article 5 § 1
of the Convention with regard to the period of the applicant’s
detention from 23 June 2009 to 8 November 2010.
As
regards the subsequent period, the Court notes that a deportation
order was issued on 8 November 2010. The Court further notes that
since 4 October 2010 the Government have refrained from
deporting the applicant in compliance with the request made by the
Court under Rule 39 of the Rules of Court (see Chahal, cited
above, § 114). The Court reiterates in that regard that the
Contracting States are obliged under Article 34 of the Convention to
comply with interim measures indicated under Rule 39 (see Mamatkulov
and Askarov v. Turkey [GC], nos. 46827/99 and 46951/99,
§§ 99-129, ECHR 2005 I).
That
being said, the implementation of an interim measure following an
indication by the Court to a State Party that it would be desirable
not to return an individual to a particular country does not in
itself have any bearing on whether the deprivation of liberty to
which that individual may be subject complies with Article 5 § 1
(see Gebremedhin [Gaberamadhien] v. France, no. 25389/05, §
74, ECHR 2007 II). In other words, the domestic authorities must
still act in strict compliance with domestic law (ibid., § 75).
The Court notes that it has been established by the domestic
authorities that the present applicant constitutes a threat to
national security. His detention was accordingly authorised and was
indeed mandatory pursuant to section 99(2)(b) of the Aliens Act 2008
(see paragraph 30 above). Furthermore, the applicant’s
detention has been extended on a monthly basis, as envisaged by
domestic law.
Having
regard to the above, the Court concludes that the deportation
proceedings, although temporarily suspended pursuant to the request
made by the Court, have nevertheless been in progress and are in
strict compliance with domestic law (compare S.P. v. Belgium
(dec.), no. 12572/08, 14 June 2011; contrast Ryabikin v.
Russia, no. 8320/04, § 132, 19 June 2008, and
Abdolkhani and Karimnia v. Turkey, no. 30471/08, §
134, ECHR 2009 ...). Since there is no indication that the
authorities have acted in bad faith, that the applicant has been
detained in unsuitable conditions or that his detention has been
arbitrary for any other reason (see Saadi v. the United Kingdom,
cited above, §§ 67-74), there has been no violation of
Article 5 § 1 in respect of the applicant’s detention from
8 November 2010 until 7 April 2011.
III. ALLEGED VIOLATION OF ARTICLES 5 § 4 AND 13 OF
THE CONVENTION
The
applicant further complained that he did not have at his disposal an
effective procedure by which he could challenge the lawfulness of his
detention, as required by Articles 5 § 4 and 13 of the
Convention. Article 5 § 4 reads as follows:
“4. Everyone who is deprived of his liberty
by arrest or detention shall be entitled to take proceedings by which
the lawfulness of his detention shall be decided speedily by a court
and his release ordered if the detention is not lawful.”
Article
13 reads as follows:
“Everyone whose rights and freedoms as set forth
in [the] Convention are violated shall have an effective remedy
before a national authority notwithstanding that the violation has
been committed by persons acting in an official capacity.”
The
Government contested that argument.
The
Court notes that this complaint is linked to the one examined above
and must therefore likewise be declared admissible.
Having
regard to its above finding under Article 5 § 1, the Court
considers that it is not necessary to examine separately whether, in
this case, there has also been a violation of Articles 5 § 4 and
13 of the Convention (see, among other authorities, Tokić and
Others v. Bosnia and Herzegovina, nos. 12455/04, 14140/05,
12906/06 and 26028/06, § 70, 8 July 2008).
IV. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION
The
applicant further complained that his right to respect for his family
life would be violated in the event of his deportation to Iraq. He
relied on Article 8 of the Convention, which provides:
“1. Everyone has the right to respect
for his private and family life, his home and his correspondence.
2. There shall be no interference by a public
authority with the exercise of this right except such as is in
accordance with the law and is necessary in a democratic society in
the interests of national security, public safety or the economic
well-being of the country, for the prevention of disorder or crime,
for the protection of health or morals, or for the protection of the
rights and freedoms of others.”
The
Court has earlier established that an appeal to the Constitutional
Court of Bosnia and Herzegovina is, in principle, an effective remedy
for the purposes of Article 35 § 1 of the Convention (see
Mirazović v. Bosnia and Herzegovina (dec.), no. 13628/03,
16 May 2006, and Alibašić v. Bosnia and Herzegovina
(dec.), no. 18478/08, 29 March 2011). Since this complaint is still
pending before that court and the Convention does not require
that an applicant complaining about his or her deportation under
Article 8 should have access to a remedy with automatic suspensive
effect (in contrast to such complaints under Article 3), the
complaint is premature. It must therefore be
rejected pursuant to Article 35 §§ 1 and 4 of the
Convention.
V. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION
The
applicant further complained of the unfairness of the proceedings
concerning his citizenship, residence permit and asylum. He relied on
Article 6 § 1 of the Convention, the relevant part of which
reads as follows:
“1. In the determination of his civil
rights and obligations or of any criminal charge against him,
everyone is entitled to a fair and public hearing within a reasonable
time by an independent and impartial tribunal established by law...”
The
Court observes that this complaint was not included in the initial
application, but was raised in the applicant’s observations of
June 2011. It was thus not raised early enough to allow an exchange
of observations between the parties (see Melnik v. Ukraine,
no. 72286/01, §§ 61 63, 28 March 2006; Maznyak
v. Ukraine, no. 27640/02, § 22, 31 January 2008; Kuncheva
v. Bulgaria, no. 9161/02, § 18, 3 July 2008; Lisev v.
Bulgaria, no. 30380/03, § 33, 26 February 2009; and
Tsonyo Tsonev v. Bulgaria, no. 33726/03, § 24, 1
October 2009). Nevertheless, the Court does not have to decide
whether it is appropriate to take this matter up separately at this
stage as the complaint is in any event inadmissible for the following
reason. The Court reiterates that Article 6 § 1 of the
Convention does not apply to proceedings regulating a person’s
citizenship and/or the entry, stay and deportation of aliens, as such
proceedings do not involve either the “determination of his
civil rights and obligations or of any criminal charge against him”
within the meaning of the this Article of the
Convention (see, among other authorities,
S. v. Switzerland
no. 13325/87, Commission decision of 15 December 1988,
Decisions and Reports 59, p. 256, at p. 257;
Šoć v. Croatia (dec.), no. 47863/9,
29 June 2000; Naumov v. Albania
(dec.), no. 10513/03, 4 January 2005; Maaouia
v. France [GC], no. 39652/98, §§ 36-40,
ECHR 2000-x). This complaint is accordingly incompatible
ratione materiae with the provisions of the Convention and
must be rejected pursuant to Article 35 §§ 3 (a) and 4 of
the Convention.
VI. APPLICATION OF ARTICLE 41 OF THE CONVENTION
Article 41 of the Convention provides:
“If the Court finds that there has been a
violation of the Convention or the Protocols thereto, and if the
internal law of the High Contracting Party concerned allows only
partial reparation to be made, the Court shall, if necessary, afford
just satisfaction to the injured party.”
A. Damage
The
applicant claimed 10,500 euros (EUR) in respect of pecuniary damage
(lost earnings in the amount of EUR 500 per month spent in detention)
and EUR 189,000 in respect of non-pecuniary damage. The applicant
also claimed EUR 60,000 to be paid to his wife and two daughters in
respect of non-pecuniary damage and EUR 4,200 in respect of the
travel expenses they incurred by coming from Zenica to visit him in
detention.
The
Government considered the amounts claimed to be excessive and
unsubstantiated.
As
regards compensation in respect of pecuniary damage, the Court notes
that the applicant did not submit any evidence about his employment
prior to detention or about the monthly income he would have made had
he not been detained. Therefore, in the absence of any evidence that
he would have indeed earned EUR 500 per month, the Court rejects this
claim. On the other hand, the Court accepts that the applicant
suffered distress as a result of the breach found, which justifies an
award in respect of non-pecuniary damage. Making its assessment on an
equitable basis, as required by the Convention, the Court awards the
applicant EUR 2,000 in respect of non-pecuniary damage, plus any tax
that may be chargeable.
As
regards compensation claimed in respect of the applicant’s wife
and daughters, the Court recalls that they were not parties in the
present case before it; thus, it rejects this claim.
B. Costs and expenses
The
applicant also claimed EUR 65,000 for the costs and expenses incurred
before the domestic courts and the Court.
The
Government considered that amount to be excessive.
In
accordance with the Court’s case-law, an applicant is entitled
to the reimbursement of costs and expenses only in so far as it has
been shown that these have been actually and necessarily incurred and
are reasonable as to quantum. That is to say, the applicant must have
paid them, or be bound to pay them, pursuant to a legal or
contractual obligation, and they must have been unavoidable in order
to prevent the breaches found or to obtain redress. The Court
requires itemised bills and invoices that are sufficiently detailed
to enable it to determine to what extent the above requirements have
been met. In the present case, regard being had to the fact that one
of the applicant’s representatives is a non-profit organisation
providing free legal aid and that no bills and invoices have been
submitted in relation to the other applicant’s representative,
the Court rejects the claim for costs and expenses.
C. Default interest
The
Court considers it appropriate that the default interest rate should
be based on the marginal lending rate of the European Central Bank,
to which should be added three percentage points.
FOR THESE REASONS, THE COURT
Declares unanimously the complaints concerning
Article 5 §§ 1 and 4 and Article 13 of the Convention
admissible and the remainder of the application inadmissible;
2. Holds by six votes to one that there has been a
violation of Article 5 § 1 of the Convention in respect of the
applicant’s detention from 23 June 2009 until 8 November 2010;
3. Holds unanimously that there has been no violation of
Article 5 § 1 of the Convention in respect of the applicant’s
detention from 8 November 2010;
Holds unanimously that there is no need to
examine the complaints under Articles 5 § 4 and 13 of the
Convention;
5. Holds by six votes to one
(a) that
the respondent State is to pay the applicant, within three months
from the date on which the judgment becomes final in accordance with
Article 44 § 2 of the Convention, EUR 2,000 (two
thousand euros) in respect of non-pecuniary damage, to be converted
into convertible marks at the rate applicable on the date of
settlement;
(b) that
from the expiry of the above-mentioned three months until settlement
simple interest shall be payable on the above amount at a rate equal
to the marginal lending rate of the European Central Bank during the
default period plus three percentage points;
6. Dismisses unanimously the remainder of the applicant’s
claim for just satisfaction.
Done in English, and notified in writing on 7 February 2012, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Lawrence Early Lech Garlicki
Registrar President
In accordance with Article 45 § 2 of the Convention and Rule 74
§ 2 of the Rules of Court, the dissenting opinion of Judge
Mijović is annexed to this judgment.
L.G.
T.L.E.
DISSENTING OPINION OF JUDGE MIJOVIĆ
The
applicant, contesting the lawfulness of his detention, relied on
Article 5 § 1 of the Convention.
As
emphasised in my dissenting opinion in Al Husin v. Bosnia and
Herzegovina, no. 3727/08, 7 February 2012, this complaint should
have been dealt with under Article 5 § 1 (c), whereas
the Chamber chose to deal with it under Article 5 § 1
(f). To avoid repetition, I refer to the detailed reasoning contained
in that opinion.
