No violation of Article 3 - Prohibition of torture (Article 3 - Expulsion) (Conditional) (Iraq)

Aleš Pejchal;André Potocki;Ganna Yudkivska;Helena Jäderblom;Johan Hirschfeldt;Mark Villiger;Vincent A. De Gaetano

The applicant was born in 1978. She is from Baghdad and is of Mandaean denomination. She was once married, but divorced her husband in 1999, after which she lived with their son, born in 1998, in Iraq while her former husband moved to the United States.

The applicant arrived in Sweden on 27 August 2007 and applied for a residence permit the following day and for asylum on 21 January 2008. She stated that she and her son had left Iraq on 25 July 2007 and had then stayed with relatives in Amman, Jordan, for a month. In Amman she had left behind her son, because she had not been able to afford his trip. Later, her former husband had come to Jordan and brought the son back with him to the United States. To the Swedish authorities the applicant submitted an Iraqi citizenship certificate, an identity card, divorce documents and a membership card for Mandaeans regarding her and her son.

Assisted by legal counsel, the applicant stated in essence the following in support of her application. Her main reason for leaving Iraq was the generally insecure situation for Mandaeans in Iraq, which had affected her and her family personally. Her fears had led to her son going to school only sporadically during the past year. Moreover, at the beginning of June 2007 her mother had received a threatening phone call from someone who had wanted to contact the applicant, presumably to forcibly remarry her with another man. If they did not comply, the applicant understood that her family would have to leave the neighbourhood. They had taken the threats very seriously and she had moved immediately with her son to her grandmother’s house in the al-Dora neighbourhood of Baghdad, where they had stayed for a month. The applicant further stated that her only remaining relative in Iraq was her mother.

On 31 October 2008 the Migration Board (Migrationsverket) rejected the application and ordered the applicant’s deportation to Iraq. The Board held that she had not proved her identity, but that she had made it plausible that she was from Iraq. It further considered that the situation in Iraq as such did not constitute grounds for asylum. While noting that Mandaeans were an exposed minority, their general situation did not suffice either for an individual be granted protection, but his or her personal circumstances would have to be assessed. The Board went on to state that the applicant had not submitted any written evidence in support of her allegations of persecution. Furthermore, she had received a threat on only one occasion and it had not been shown that the person threatening her had referred to her religious beliefs. Nor was there any other indication that she had been ill-treated on account of those beliefs or that she had received other threats before leaving Iraq. The Board then noted that the applicant’s brother, who had also applied for asylum in Sweden, had had his application rejected and his deportation to Iraq ordered and that, consequently, the applicant would likely not lack a male network upon return to Iraq. In conclusion, the Board found that she had not made it probable that she was at personal risk of being subjected to serious ill-treatment if she returned to Iraq.

The applicant’s brother, who had arrived in Sweden on 18 December 2007, had his application for a residence permit rejected by the Migration Board on 2 October 2008.

The applicant appealed, adding the following to her story. Mandaeans, being the smallest and most vulnerable minority in Iraq, were subjected to extortion, kidnappings and murder. Mandaean women and children had been forced to convert to Islam, often after having been assaulted and raped. The Mandaeans were not a large enough community to be able to protect and support each other and there was no particular region where they could settle safely. This was enough to show that she was in need of protection. The applicant asserted that the threat against her had to be seen against this background. Her whole existence had been marked by the threatening atmosphere and demands directed at non-Muslim women and in particular the Mandaeans. Her situation had been further aggravated by the fact that she is a single woman without a social network in Iraq. Her mother had had the intention of leaving the country as well, but the applicant had no information on her whereabouts. Furthermore, in Sweden the applicant had met a Muslim man from Iraq together with whom she now lived. This situation would never be accepted in Iraq. Also, when she had talked about her new relationship in Sweden, her family had reacted very negatively and had virtually frozen her out.

On 14 December 2009 the Migration Court (Migrationsdomstolen) upheld the decision of the Board. The court acknowledged the difficult situation for Mandaeans in Iraq and stated that, consequently, a lower threshold was applied in assessing the individual risks than in Iraqi cases in general. The general situation for Mandaeans did not suffice of itself to be granted protection, however; an assessment of the applicant’s individual circumstances was necessary. In the absence of written evidence, the court went on to examine the statements made by the applicant. It considered that the threat received concerning forced marriage was primarily related to the general security situation in Iraq at the time. In the two years since the applicant had left the country, the security situation had improved. While the Mandaeans remained disadvantaged, there was no sign that she was still being searched for in Iraq. Nor was there anything to indicate that her mother’s possible exile had been caused by continued threats. The court further found that the negative reaction of the applicant’s family to her new relationship did not imply a need of protection. In that connection, it further noted that the asylum appeal lodged by her brother, who had not turned his back on her, had been rejected on the same day. Thus, she could return to Iraq with him and thereby have a social network in the country.

On 16 February 2010 the Migration Court of Appeal (Migrations-överdomstolen) refused the applicant leave to appeal. On 25 February 2010 it refused leave to appeal also in the applicant’s brother’s case.

Subsequently, the applicant, as well as her brother, claimed that there were impediments to the enforcement of their deportation orders. Their petition mainly concerned the brother’s period of active duty in the Iraqi army, during which he had gained knowledge of important people in the army and their illegal actions. This knowledge would put both the applicant and her brother at risk if they were returned. The applicant further claimed that her mother had been kidnapped.

On 8 May 2010 the Migration Board rejected the petition, finding that no new circumstances justifying a reconsideration had been presented. It considered that the claims made in relation to the brother did not in any way show that there were threats against him or the applicant. The allegation that the mother had been kidnapped was actually new, but it was unclear when this incident was supposed to have happened and there was nothing to conclude that the possible kidnapping had any personal connection to the situation of the applicant and her brother. The applicant did not appeal against the Board’s decision.

On 23 August 2010 the applicant submitted a letter to the Migration Board, which was perceived by the Board as a new petition for reconsideration. The applicant stated that, if she were forced to return to Iraq, she would have to do so without her current partner or her brother, who were both in Sweden. Her partner had been issued a visa to Syria, as he was born in Damascus, and could not return to Iraq. Consequently, they would be separated, because she could not travel to Syria since she lacked a passport and would not be granted a visa. The applicant further asserted that she had no relatives in Iraq.

On 25 August 2010 the Migration Board decided not to reconsider the case. Although the fact that the applicant’s partner had been granted a visa to Syria was considered to be new, the Board stated that this fact did not constitute a lasting impediment to the enforcement of the deportation order. The applicant did not appeal against the Board’s decision.

The respondent Government have submitted the following notes to the Court, taken from the files of the Migration Board. The applicant’s mother was living with relatives and friends in Baghdad. When the applicant left Iraq, her grandmother and cousins were living in the al-Dora neighbourhood of Baghdad. In Sweden, the applicant has been living in the same flat as her brother and her partner from October 2009 onwards. Her partner left Sweden in October 2010 to be reunited with his family in Syria, whereas her brother is still in Sweden. Furthermore, in reply to the Government’s request for information in the case, the Migration Board had stated that it was likely that the applicant had a large number of relatives left in Baghdad.

The applicant has given the following additional account to the Court. Following her divorce in 1999, she went to live with her parents and her brother. Her father, under whose protection she was living, died in 2005. Her grandmother, with whom she had briefly lived after the threatening telephone call, died in 2008. To her knowledge, she has no relatives left in Iraq, cousins or others. Several relatives are living abroad, in Sweden, France, the Netherlands, the United Kingdom, Spain and Canada. Her sister is living in Denmark. After the applicant and her brother had left Iraq, their mother went to live with a Christian family in Baghdad, from whom she rented a room. In the beginning of 2010, the applicant and her brother received information about their mother’s disappearance. The family with whom the mother had lived called the applicant’s uncle in Sweden and said that they did not think that she had left voluntarily. A police report, sent to the uncle only in 2012, states that the report was filed on 7 June 2011 by the mother’s landlord, who had told the police that the mother had been missing since 5 December 2010. The applicant does not know why the landlord did not file a report earlier or why he did not state that her mother had been missing for several months before December 2010. The applicant is still unaware of what has happened to her mother following her disappearance. However, given the time that has passed without any contact with her, she assumes that she is dead. The applicant is still in a relationship with the man she met in Sweden, although he is now living in Syria. The people who disowned her because of that relationship were her relatives in Sweden, with the exception of her brother. The brother married a relative, who is a Swedish citizen, on 27 May 2012. He left Sweden and applied at the Embassy in Tehran for a Swedish residence permit based on his marriage. By a decision of 5 November 2013 the Migration Board granted him a residence permit until 5 November 2015.

The basic provisions applicable in the present case, concerning the right of aliens to enter and to remain in Sweden, are laid down in the Aliens Act (Utlänningslagen, 2005:716).

An alien who is considered to be a refugee or otherwise in need of protection is, with certain exceptions, entitled to a residence permit in Sweden (Chapter 5, section 1 of the Act). The term “refugee” refers to an alien who is outside the country of his or her nationality owing to a well-founded fear of being persecuted on grounds of race, nationality, religious or political beliefs, or on grounds of gender, sexual orientation or other membership of a particular social group and who is unable or, owing to such fear, is unwilling to avail himself or herself of the protection of that country (Chapter 4, section 1). This applies irrespective of whether the persecution is at the hands of the authorities of the country or if those authorities cannot be expected to offer protection against persecution by private individuals. By “an alien otherwise in need of protection” is meant, inter alia, a person who has left the country of his or her nationality because of a well-founded fear of being sentenced to death or receiving corporal punishment, or of being subjected to torture or other inhuman or degrading treatment or punishment (Chapter 4, section 2).

Moreover, if a residence permit cannot be granted on the above grounds, such a permit may be issued to an alien if, after an overall assessment of his or her situation, there are such particularly distressing circumstances (synnerligen ömmande omständigheter) to allow him or her to remain in Sweden (Chapter 5, section 6). Special consideration should be given, inter alia, to the alien’s health status. According to the preparatory works (Government Bill 2004/05:170, pp. 190-191), life-threatening physical or mental illness for which no treatment can be given in the alien’s home country could constitute a reason for the grant of a residence permit.

As regards the enforcement of a deportation or expulsion order, account has to be taken of the risk of capital punishment or torture and other inhuman or degrading treatment or punishment. According to a special provision on impediments to enforcement, an alien must not be sent 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 (Chapter 12, section 1). In addition, an alien must not, in principle, be sent to a country where he or she risks persecution (Chapter 12, section 2).

Under certain conditions, an alien may be granted a residence permit even if a deportation or expulsion order has acquired legal force. This is the case where new circumstances have emerged which indicate that there are reasonable grounds for believing, inter alia, that an enforcement would put the alien in danger of being subjected to capital or corporal punishment, torture or other inhuman or degrading treatment or punishment or there are medical or other special reasons why the order should not be enforced (Chapter 12, section 18). If a residence permit cannot be granted under these criteria, the Migration Board may instead decide to re-examine the matter. Such a re-examination shall be carried out where it may be assumed, on the basis of new circumstances invoked by the alien, that there are lasting impediments to enforcement of the nature referred to in Chapter 12, sections 1 and 2, and these circumstances could not have been invoked previously or the alien shows that he or she has a valid excuse for not having done so. Should the applicable conditions not have been met, the Migration Board shall decide not to grant a re-examination (Chapter 12, section 19).

Matters concerning the right of aliens to enter and remain in Sweden are dealt with by three instances: the Migration Board, the Migration Court and the Migration Court of Appeal.

A deportation or expulsion order may – save for a few exceptions of no relevance to the present case – be enforced only when it has acquired legal force. Thus, appeals to the courts against the Migration Board’s decision in ordinary proceedings determining the right to asylum and a residence permit have an automatic suspensive effect. If the alien subsequent to the ordinary proceedings having acquired legal force lodges a petition under Chapter 12, sections 18 or 19, it is up to the Board to decide whether to suspend the enforcement (inhibition) on the basis of the new circumstances presented. Accordingly, such a petition has no automatic suspensive effect, nor does an appeal to the courts against the Board’s decision taken under section 19 (no appeal lie against a decision pursuant to section 18).

In its Report on Human Rights in Iraq: July – December 2012, published in June 2013, the Human Rights Office of the United Nations Mission for Iraq (UNAMI) gave, inter alia, the following summary (at pp. vii-viii):

“Violence and armed violence continued to take their toll on civilians in Iraq. According to the Government of Iraq, 1,704 civilians were killed and 6,651 were injured in the second half of 2012, resulting in a total of 3,102 killed and 12,146 injured for 2012. According to UNAMI, 1,892 civilians were killed and 6,719 were injured in the last six months of 2012, resulting in a total of at least 3,238 civilians who were killed and 10,379 who were injured for the year. These figures indicate that the trend of recent years of a reduction in the numbers of civilian casualties has reversed and that the impact of violence on civilians looks set to increase in the near to medium future. Terrorists and armed groups continued to favour asymmetric tactics that deliberately target civilians or were carried out heedless of the impact on civilians.

Political instability and regional developments continued to impact negatively on the security situation in Iraq, with its concomitant toll on civilians. Although the Government takes the impact of violence on civilians extremely seriously and has taken measures to enhance security, more needs to be done to ensure the proper coordination of financial, medical and other forms of support for the victims of violence.

Women continue to suffer from domestic and other forms of violence, and to face discrimination and other barriers in accessing economic, social and educational opportunities. The law continues to permit ‘honour’ as a mitigating factor in crimes of violence committed against women and family members. There is still no effective system of shelters and coordinated care for the victims of domestic violence, and services available to victims remain inadequate. The family protection bill remains stalled in the Council of Representatives. Women’s representation at a senior level in political, governmental and judicial institutions remains low at the federal, governorate and district levels.

Iraq’s various ethnic and religious groups continued to be targeted by violence. In particular, members of the Turkmen community were subjected to various acts of violence, including kidnapping, murder, harassment, and other threats. Members of religious communities, including Yezidis, Christians and Shabaks, also suffered threats and acts of violence. Shi’a pilgrims attending various religious festivals and activities similarly came under attack in various parts of the country.”

In regard to the Kurdistan region, the report stated (at p. ix):

“The overall human rights situation in the Kurdistan Region continued to improve, although challenges remain, including concerns over respect for freedoms of assembly and expression, and the protection of journalists. The Kurdistan Region experienced almost no insurgent violence, although civilians living in areas close to the international borders continued to suffer from the effects of cross-border shelling and military operations conducted by foreign forces.

Progress was made towards full implementation of the Law on Combatting Violence Against Women, with the establishment of a high level inter-ministerial committee to oversee implementation of the law, and the adoption of a five-year plan to combat violence against women, along with other reforms and initiatives.”

In his report of 16 February 2011, the Representative of the (United Nations) Secretary-General on the human rights of internally displaced persons, Mr Walter Kälin, noted the following (at paras. 9-10) after a visit to Iraq in September/October 2010:

”Despite improvements in the overall security situation since 2006, the situation in Iraq is still characterized by continued indiscriminate attacks against civilians, including religious and ethnic minorities, arbitrary arrests, alleged ill-treatment while in detention, and sexual and gender-based violence. Moreover, impunity is reported as being widespread, while access to justice is largely absent due to fear of reprisals, lack of capacity among rule of law institutions, corruption and lack of awareness of accountability mechanisms.

In the Kurdistan Region of Iraq, while the security situation is considerably better than in the rest of the country, specific concerns have been raised with regard to, inter alia: serious violations of the rights of suspects and detainees by KRG [Kurdistan Regional Government] authorities; sexual and gender-based violence; and the impact of anti-terrorism legislation on human rights, including specifically the practice of keeping persons in de facto unlimited administrative detention.”

The UK Border Agency Iraq Operational Guidance Note of December 2011 noted (at paras. 2.3.4 and 2.3.5):

“Violence, albeit still far above what ought to be tolerable, has levelled off in the past two years. Iraqi security forces have taken the lead in several important operations. Recently, they have withstood three noteworthy tests: the departure of close to 100,000 US troops since January 2009; the March 2010 parliamentary elections; and, over the past several months, political uncertainty prompted by institutional deadlock. If insurgents remain as weak as they are and find no fresh opportunity to exploit political fractures, security forces operating at less-than-optimal levels still should face no serious difficulty in confronting them.

It has been reported that although oversight by the MOI [Ministry of Interior] and MOD [Ministry of Defence] has increased, problems continue with all security forces, arising from sectarian divisions, corruption, and unwillingness to serve outside the areas in which personnel were recruited. ...”

In its July – December 2012 report, UNAMI noted, inter alia, the following:

“While there have been some improvements in terms of security for Iraq’s ethnic and religious groups, their situation remains precarious. During the second half of 2012, UNAMI continued to receive reports of attacks directed at persons on account of their ethnic or religious affiliations. UNAMI has particular concerns regarding the situation of the Turkmen community in the disputed areas, Christian families that migrated from Baghdad to Erbil following attacks against the community in 2010, and the rising tension between the Shabak and the Christian minorities in Ninewa. Figures collected by UNAMI indicate that members of minority groups are still leaving their homes in many areas on account of insecurity and acts of violence perpetrated against their communities, compounded by lack of access to basic services and poor economic opportunities.”

This report does not contain any information on the Mandaean community, but UNAMI’s 2011 report, published in May 2012, noted the following about their situation in the Kurdistan Region (at p. 32):

“The numbers of Sabian Mandaean families have fallen to approximately 75 in the Kurdistan Region due to migration of members of the group. Some community representatives informed UNAMI that they do not face any threat or persecution in the Kurdistan Region and they are supported by the Government, but most are migrating for economic reasons.”

The Minority Rights Group International described the Mandaeans in Iraq thus (Iraq’s Minorities: Participation in Public Life, November 2011, p. 9):

“Sabean Mandaeans, whose religion is one of the oldest surviving Gnostic religions in the world, have existed in Iraq for more than two millennia. Many of the 60,000–70,000 present in the Middle East once lived in Iraq, but today, their numbers there have dwindled to around 5,000 people, mainly through displacement, but also through killings. Traditionally, many Sabean Mandaeans have worked as goldsmiths; the resulting perception that they are wealthy has contributed to their being targeted for kidnapping. They are forbidden by their faith to marry outside the religion, which has contributed to their reduced numbers since 2003.”

In regard to minority women, the Minority Rights Group International gave, inter alia, the following account (ibid., p. 25):

“For minority women, the situation again follows the general trend, with the added security risk that comes from being from a minority. Fifty-seven per cent of respondents to the IMC [Iraqi Minorities Council] survey said that they believed that women needed to hide their religious affiliation, either by not wearing their religious symbols or traditional makeup, by covering their heads even if they are secular or non-Muslims, or by not speaking in their traditional languages ... . A number of Faili Kurd, Sabean-Mandaean and Christian women stated that they avoid speaking their language (e.g. Assyrian, Armenian) or wearing clothes that indicate their community belonging when in public. Non-Muslim minority women in particular complain of pressure to modify their dress. ...

Overall, only 25 per cent of respondents surveyed said that they thought that women felt safe when leaving the home. Sabean-Mandaean women have reported being pressured to convert to Islam; they also report physical and verbal abuse on the street from university staff, or, if in employment, for not covering their heads and not adhering to an Islamic dress code.”

On 31 May 2012 the United Nations High Commissioner for Refugees (UNHCR) issued the latest Eligibility Guidelines for Assessing the International Protection Needs of Asylum-Seekers from Iraq (hereafter “the UNHCR Guidelines”). The situation for members of religious minorities is summarised as follows (at p. 27):

Iraq are likely to be in need of international refugee protection on the grounds of religion, (imputed) political opinion or membership in a particular social group.

Christian converts are likely to be in need of international refugee protection in the whole country, including the Kurdistan Region.”

In regard to minority women, UNHCR states (at p. 27):

“Minority women are likely the most vulnerable section of Iraqi society, facing violence and discrimination from a variety of actors on account both of their gender and their religious affiliation. Minority women’s freedom of movement and freedom to express their religious identity through the way they dress has been severely restricted by ongoing threats of violence and growing religious intolerance. This, in turn, restricts their access to health services, employment and education.”

UNHCR give the following information relating to the Mandaean community (at p. 29):

“The Sabaean-Mandaean religion is a gnostic religion with John the Baptist as a central figure and considered a prophet. Its adherents cannot marry outside the faith and they do not accept converts. Before 2003, there were an estimated 50,000 to 70,000 Mandaeans living in Iraq many of whom were well educated and worked as doctors, engineers, dentists and jewelers. After the fall of the former regime, Sunni and Shi’ite armed groups, as well as criminals, have singled out Sabaean-Mandaeans on the basis of their religion, profession and (perceived) wealth. Some Sabaean-Mandaeans elders, who traditionally wear long beards, have reportedly been attacked by Shi’ite militants who have mistaken them for strictly observant Sunni Arabs or Wahhabists. Sabaean-Mandaeans are particularly vulnerable to attacks for several reasons. Unlike other groups in Iraq, the pacifist Mandaeans did not form militias to defend themselves. Further, the already small community lives mainly in scattered groups. Their disputed status as “people of the book”, which under the Qur’an would provide them with a level of protection, failed to dissuade extremist groups from targeting them. As a result of general violence and targeted attacks, large numbers of Mandaeans fled Iraq, mainly to Syria and Jordan. Currently, an estimated 3,500 to 7,000 Mandaeans remain in Iraq. Most of them live in Baghdad and southern Iraq, including in Amara, Basrah and Nassiriyah. According to a spokesman for the Mandaean community, there are currently about 500 Mandaean families in southern Iraq, mostly in the Governorate of Basrah.

Since 2003, Sabaean-Mandaeans have been subjected to threats, abductions and killings. There are also reports of forced conversions to Islam and some Sabaean-Mandaeans have reportedly been killed for refusing to do so. Most religious leaders have either been killed or fled the country. Eight Sabaean-Mandaeans were reportedly killed and five injured in 2010 in what were reported to be targeted attacks. In 2011, additional kidnappings and killings were reported by the Mandaean Associations Union. Sabaean-Mandaean goldsmiths reportedly continued to receive threats and suffer from attacks. Even in cases of kidnapping for ransom, the perpetrators may deliberately single out Sabaean-Mandaeans due to their vulnerable status as a religious minority, considered “infidel”. There have been reports of kidnapped Sabaean-Mandaeans killed or remaining missing despite the payment of ransom.

In addition to targeted violence perpetrated against Sabaean-Mandaeans, the community has also suffered from social marginalization and religious discrimination. There are no schools in southern and central Iraq that teach children in their language, Aramaic, and children are obliged to undertake Qur’anic studies at public schools. Sabaean-Mandaean women are pressured to observe the hijab in public in order to avoid physical and verbal abuse, although their religion does not require veiling. Reportedly, Sabaean-Mandaean women have been pressured to marry outside their faith in contradiction with their own religious customs and have been pressured to convert to Islam.”

In its International Religious Freedom Report for 2012, published on 20 May 2013, the United States Department of State summarises the religious situation in Iraq thus:

“The constitution provides for religious freedom and the government generally respected religious freedom in practice. The trend in the government’s respect for religious freedom did not change significantly during the year. The constitution recognizes Islam as the official religion, mandates that Islam be considered a source of legislation, and states that no law may be enacted that contradicts the established provisions of Islam. However, it also states that no law may contradict principles of democracy or the rights and basic freedoms stipulated in the constitution. The constitution guarantees freedom from intellectual, political, and religious coercion. Some apparent contradictions between the constitution and other legal provisions were tested in court during the year; the courts upheld full legal protection for religious freedom in those cases. Other contradictions remain untested. Officials sometimes misused their authority to limit freedom for religious groups other than their own. However, the government continued to call for tolerance and acceptance of all religious minorities, provided security for places of worship such as churches, mosques, shrines, and religious pilgrimage sites and routes, and funded the construction and renovation of places of worship for some religious minorities. Al-Qaeda in Iraq (AQI) and other terrorist and illegally armed groups commited violent attacks that restricted the ability of all believers to practice their religion.

There were reports of societal abuses and discrimination based on religious affiliation, belief, or practice. Sectarian violence occurred throughout the country, although to a lesser extent in the Iraqi Kurdistan Region (IKR), and restricted religious freedom. No reliable statistics on religiously motivated violence were available. The overwhelming majority of mass casualty terrorist attacks targeted Muslims. A combination of sectarian hiring practices, corruption, targeted attacks, and the uneven application of the law had a detrimental economic effect on minority non-Muslim communities, and contributed to the departure of non-Muslims from the country.”

Designating Iraq as a “country of particular concern” for the sixth year running, the United States Commission on International Religious Freedoms, in its 2013 Annual Report, published on 30 April 2013, made the following findings:

“Over the last several years the Iraqi government has made efforts to increase security for religious sites and worshippers, provide a stronger voice for Iraq’s smallest minorities in parliament, and revise secondary school textbooks to portray minorities in a more positive light. Nevertheless, the government of Iraq continues to tolerate systematic, ongoing, and egregious religious freedom violations, including violent religiously-motivated attacks. Violence against Iraqi civilians continued in 2012 at approximately the same level as in 2011. In addition, the government took actions that increased, rather than reduced, Sunni-Shi’i and Arab-Kurdish tensions, threatening the country’s already fragile stability and further exacerbating the poor religious freedom environment.

Shi’i Muslims experienced the worst attacks of any religious community during the reporting period, including against pilgrims participating in celebrations on or around important religious holidays. The government has proven unable to stop religiously-motivated attacks from occurring and lacks the will or capacity to investigate attacks and bring perpetrators to justice. This has created a climate of impunity, which in turn exacerbates a perpetual sense of fear for all religious communities, particularly the smallest ones. Large percentages of the country’s smallest religious minorities – which include Chaldo-Assyrian and other Christians, Sabean Mandaeans, and Yezidis – have fled the country in recent years, threatening these communities’ continued existence in Iraq. The diminished numbers that remain face official discrimination, marginalization, and neglect, particularly in areas of northern Iraq over which the Iraqi government and the Kurdistan Regional Government (KRG) dispute control. Religious freedom abuses continue towards women and individuals who do not conform to strict interpretations of religious norms or attacks on businesses viewed as “un-Islamic”. However, in a positive development, the Iraqi parliament shelved a problematic draft Information Crimes law that would have restricted the freedoms of religion and expression. Additionally the KRG parliament rejected a draft law to “protect sanctities,” which, if adopted, would violate these same freedoms. However, there are reports that KRG officials may still pursue legal action against the media for offending religion, Kurdish history, or national symbols.

Many of the non-Muslim minorities internally displaced by violence have gone to the north of the country, mainly to Nineveh governorate and the territory of the KRG, which is comprised of three other governorates. Northern Iraq, particularly the Nineveh Plains area of Nineveh governorate, is the historic homeland of Iraq’s Christian community, and the Yezidi community is indigenous to Nineveh and the KRG governorate of Dahuk. The three KRG governorates are relatively secure, but Nineveh governorate, particularly in and around its capital Mosul, remains extremely dangerous, and control over this ethnically and religiously mixed area is disputed between the KRG and the central Iraqi government.

Religious and ethnic minorities in these areas, including non-Muslims and ethnic Shabak and Turkomen, have accused Kurdish forces and officials of engaging in systematic abuses and discrimination against them to further Kurdish territorial claims. These accusations include reports of Kurdish officials interfering with minorities’ voting rights; encroaching on, seizing, and refusing to return minority land; conditioning the provision of services and assistance to minority communities on support for Kurdish expansion; forcing minorities to identify themselves as either Arabs or Kurds; and impeding the formation of local minority police forces. The minorities also accuse both Arab and Kurdish officials of ignoring these vulnerable communities as they focus on their fight for territorial control.”

The Representative of the UN Secretary-General stated in the above-mentioned report of 16 February 2011 (at para. 65):

”In the Kurdistan Region of Iraq, the Representative acknowledges that KRG has received and provided safety to IDPs [internally displaced persons] from all over Iraq regardless of their origin, particularly in the aftermath of the sectarian violence in the country 2006. Stronger coordination and cooperation mechanisms between the Central Government and KRG are necessary however, to address the situation of IDPs in this region, including vulnerable groups, as well as a number of administrative and financial assistance issues, such as difficulties in transferring PDS cards [Public Distribution System food ration cards] and receiving pensions, which are adversely affecting the rights and standard of living of IDPs. As well, while improved social, security, and economic conditions prevail in this region, continued cross border attacks continue to cause periodic displacement of its border populations. The Representative believes that stronger cooperation between the Government of Iraq and KRG, as well as concerted diplomatic efforts and border dialogues with relevant neighbouring countries, must be undertaken in order to prevent and raise awareness of the impact of cross-border attacks on civilian populations.”

The UNHCR Guidelines contain the following observations (at pp. 27 and 48-51):

“In the Kurdistan Region, the rights of religious minorities are generally respected and groups can worship freely without interference. The KRG Ministry of Education funds public schools at the elementary and high school level in the Aramaic language. The curriculum in the Kurdistan Region does not contain religion or Qur’an studies. A significant number of religious minorities, in particular Christians, have sought refuge in the region.

A large number of persons from the central governorates have found refuge in the three northern governorates since 2006. Commensurate with the sharp decrease in new displacements generally, the flow of new arrivals has decreased significantly; however, only a few of those previously displaced have to date returned to their places of origin. The influx of IDPs has had an important impact on the host communities, including increasing housing and rental prices, additional pressure on already strained public services and concerns about security and demographic shifts. At the same time, the three northern governorates have also benefited from the migration of professionals bringing skills and disposable incomes that boost the local economy. Unskilled IDPs have provided a source of affordable labour for the construction industry.

The KRG authorities continue to implement stringent controls on the presence of persons not originating from the Kurdistan Region. Depending on the applicant, particularly his/her ethnic and political profile, he/she may not be allowed to relocate to or take up legal residence in the three northern governorates for security, political or demographic reasons. Others may be able to enter and legalize their stay, but may fear continued persecution as they may still be within reach of the actors of persecution or face undue hardship. Therefore, despite the hospitable attitude of the KRG authorities towards a considerable number of IDPs, the availability of an IFA/IRA [internal flight/relocation alternative] must be carefully assessed on a case-by-case basis ...

Since the fall of the former regime, the KRG authorities are very vigilant about who enters the Kurdistan Region and have introduced strict security measures at their checkpoints. However, there are no official and publicly accessible regulations concerning procedures and practices at the entry checkpoints into the Kurdistan Region. An ad hoc and often inconsistent approach can be expected in terms of who is granted access, varying not only from governorate to governorate, but also from checkpoint to checkpoint. The approach at a particular checkpoint may be influenced by several factors including the overall security situation, the particular checkpoint and its staff, the instructions issued on that day and the particular governorate where the checkpoint is situated. UNHCR has repeatedly sought to obtain information and clarification from the KRG authorities on checkpoint practices and entry/residence in the Kurdistan Region, without success. Therefore, persons seeking to relocate to the Kurdistan Region depend on informal information with regard to entry procedures.

Individuals/families wishing to enter the Kurdistan Region can seek to obtain a tourist, work or residence card. The tourist card, which is commonly given to persons from central and southern Iraq who seek to enter the Kurdistan Region, allows the holder to stay for up to 30 days. Depending on the person’s profile, but also the checkpoint and the officer in charge, persons seeking to enter as tourists may be required to produce a sponsor. Arabs, Turkmen and Kurds from the disputed areas are usually requested to have a sponsor, while Kurds (not from the disputed areas) and Christians are able to enter without a sponsor.

Alternatively, persons who have a proof of employment (letter of appointment) can obtain a work card, which is valid for 10-15 days and is, in principle, renewable. Persons seeking to stay more than 30 days should in principle obtain a residence card. Long-term stays always require a sponsor. UNHCR is not aware of any IDPs who have received the residence card.

The sponsorship process lacks clarity and there is no uniform procedure in place. In some cases, the sponsor is required to be physically present at the checkpoint to secure the person’s entry. In other cases, it seems to suffice that a person seeking to relocate to the Kurdistan Region produces a letter notarized by a court clerk attesting to the person’s connection to the sponsor. In some cases, the officer at the checkpoint will simply make a phone call to the sponsor to verify the acquaintance. Iraqis without sufficiently strong ties to the Kurdistan Region and who, therefore, are unable to find a sponsor, may be denied entry into the Kurdistan Region. There are reportedly also different requirements as to the nature of the sponsor.

UNHCR is aware of individuals who have been refused entry into the Kurdistan Region. Arabs, Turkmen and certain profiles of Kurds will likely face extensive questioning and may be denied entry at the checkpoint, mostly due to security concerns. In particular, single Arab males, including minors, are likely either to be denied entry into the Kurdistan Region or to be allowed entry only after a lengthy administrative procedure and heavy interrogation. Checkpoints reportedly maintain “blacklists” of individuals banned from entering the Kurdistan Region, including those considered a security risk, but also those who have previously overstayed or did not renew their residence permits. Christians, especially those who fled due to targeted attacks, reportedly do not face difficulties in entering the Kurdistan Region.

Persons not originating from one of the three northern governorates intending to remain in the Kurdistan Region for more than 30 days must approach the neighbourhood security station (Asayish) in the area of relocation to obtain a permit to stay (“information card” or karti zaniyari). As with the entry procedures, there are no official rules or regulations concerning the issuance of information cards. Generally, in all three governorates, a sponsor is required in order to obtain the information card. This means that those that were able to enter without a sponsor are, at this stage, obliged to find a sponsor. Families, provided they have a sponsor from the governorate concerned and the necessary personal documentation, are usually able to secure the information card. Single people apparently face more difficulties. Persons who do not have a sponsor will not be able to regularize their continued stay and may be forced to leave.

Persons fleeing persecution at the hands of the KRG or the ruling parties will almost always not be able to find protection in another part of the Kurdistan Region. Persons fleeing persecution at the hands of non-state actors (e.g. family/tribe in the case of fear from “honour killing” or blood feud) may still be within reach of their persecutors. The same applies for persons fearing persecution by armed Islamist groups.”

As regards the acquisition of identity documents, the UK Border Agency maintained (Iraq Operational Guidance Note of December 2011, para. 2.4.5, and of December 2012, para. 2.4.4):

“It is not necessary for an individual to return to their registered place of residence to transfer documents to a new area of Iraq. It is possible for example to apply at a registration office in Baghdad, to have documents transferred from elsewhere in Iraq. However the MoDM [Ministry of Displacement and Migration] have said that in practice this does not happen because it is now safe enough for someone to return to their registered place of residence to arrange to transfer documents. The processes and procedures were the same throughout governorates across south and central Iraq.”

Disagreeing with the UNHCR as to the possibility of internal relocation for Iraqi asylum seekers, the Border Agency further stated (Iraq Operational Guidance Note of December 2011, para. 2.4.14):

“We do not however accept UNHCR’s conclusions on internal relocation from the central governorates and consider that there is likely to be considerable scope for internal relocation that achieves both safety and reasonableness in all the circumstances. We consider UNHCR’s position is tied in with general policy considerations (e.g. about managing the rates of return) deriving from their general and Iraq-specific remit; we do not consider that in the light of the evidence taken as a whole that mere civilian returnees are at real risk of persecution under the Refugee Convention or of serious harm under either the [EU] Qualification Directive or Article 3 [of the European Convention on Human Rights] currently.”

In its December 2012 note (at para. 2.4.17), the Border Agency added the conclusions drawn by the UK Upper Tribunal (see the following paragraph).

In a country guidance determination, MK (documents – relocation) Iraq CG [2012] UKUT 00126 (IAC), delivered on 25 April 2012, the UK Upper Tribunal (Immigration and Asylum Chamber) concluded, among other things, the following (at para. 88):

“Entry into and residence in the KRG can be effected by any Iraqi national with a CSID [Civil Status ID], INC [Iraqi Nationality Certificate] and PDS, after registration with the Asayish (local security office). An Arab may need a sponsor; a Kurd will not.

Living conditions in the KRG for a person who has relocated there are not without difficulties, but there are jobs, and there is access to free health care facilities, education, rented accommodation and financial and other support from UNHCR.”

The findings in MK were endorsed in a recent country guidance determination, HM and others (Article 15(c)) Iraq CG [2012] UKUT 00409 (IAC), of 13 November 2012. Having particular regard to the Danish/UK report extensively quoted below (at § 42), the Upper Tribunal stated (at para. 348):

“Taking the evidence as a whole, we consider that if anything, it tends to show that no-one needs a sponsor, rather than, as was concluded in MK, that a Kurd will not and an Arab may. By needing a sponsor we refer not only to entry but also to residence in the KRG. ...”

On the issue of identity documents, it further noted (at para. 358):

“... [In MK] the Tribunal commented that there was nothing to show that it was, or perhaps ever had been, the case that a central register in Baghdad had been kept. [F]urther evidence [now presented] requires us to modify that position. Given the current state of the evidence in this regard, we consider that we can add to the guidance in MK by noting the existence of the Central Archive retaining civil identity records on microfiche, providing a further way in which a person can identify themselves and obtain a copy of their CSID, whether from abroad or within Iraq.”

The Finnish Immigration Service and the Swiss Federal Office for Migration published on 1 February 2012 the Report on Joint Finnish-Swiss Fact-Finding Mission to Amman and the Kurdish Regional Government (KRG) Area, May 10-22, 2011 (“the Finnish/Swiss report”). In summarising the situation (at p. 3), it noted, among other things, the following:

“At the time of the FFM [Fact-Finding Mission], there seemed to be little discrimination against ethnic or religious minorities. The flight of Christians from Central Iraq to the KRG area has continued since the bomb attack on a church in Baghdad in October 2010. Internally displaced persons (IDPs) and refugees are better off in the KRG area than in the rest of Iraq and generally felt safe in the region at the time of the FFM. At the same time, some suffer from poverty, remain unregistered, and lack access to proper housing, education, health care, and employment.”

It further stated (at pp. 49-50):

“Interviewed sources confirmed that the KRG is open and liberal toward religious minorities and normally also toward ethnic minorities. The areas controlled by the KRG can be considered safe for minorities. In the Iraqi Kurdish areas, a majority of Kurds live close to minorities such as Christians, Arabs, Turkmen, Yazidis, Fayli Kurds, Shabak, Kakai, and Mandaeans / Sabaeans. Fayli Kurds, Yazidis, Kakai, and Shabak are perceived as Kurds and therefore are generally not persecuted, but they can be under social pressure for assimilation.”

On the subject of entry procedures at the KRG area border, the report gave the following account (at pp. 59-60):

“The fact-finding mission learned that there have been no relevant, recent changes to KRG entry and screening procedures. UNHCR Iraq in Erbil indicated that there are no government statistics available on who has entered the KRG area and who has been denied access. There are four main entry checkpoints to the KRG area, which are controlled by the KRG Security Protection Agency. The checkpoints apply basically the same entry procedures.

At the same time, some international organizations, NGOs, and the UNHCR claimed that the guidelines on entry practices are not consistent between the three northern governorates of the KRG or between checkpoints leading to a single governorate. There are also no published instructions or regulations on entry procedures, as these would be against the Iraqi Constitution. According to the UNHCR, entry often depends on the commander on duty and the commander’s daily instructions at the checkpoint. The procedures can be tightened or relaxed according to the current security situation in the area.

Several NGOs and the UNHCR have surveyed IDPs at different times concerning entry procedures to the KRG region at different checkpoints. A comparison of the results shows differences in entry practices between governorates and time periods. For instance, the surveys show that the need for a sponsor / guarantor has essentially ceased at a Dohuk governorate entry checkpoint, but that even at one checkpoint congruency can lack at different times.

People who are denied entry to the KRG area are often not of Kurdish ethnicity. Kurds and Christians are generally allowed entry, whereas single male Sunni Arabs without a sponsor in the KRG area are refused. The UNHCR noted that female Arabs have also had trouble entering the KRG area. Single females are also at higher risk of harassment by authorities. However, a source mentioned that Arabs from Central and Southern Iraq who invest in the KRG area are welcomed to the region. According to another source, IDPs with money are able to move to Erbil and start a business.

Anyone wishing to enter the KRG area who does not originate from the region typically needs to know someone there (a so-called sponsor / guarantor) or have a letter of reference from an employer in the KRG area. A sponsor is needed if the person wants to stay in the KRG area for more than 10 days or wants to register and seek residency in the region. If someone enters the KRG area and subsequently commits a crime, his or her sponsor will be punished and may even face a prison sentence.

A member of the immediate family or some other relative often acts as the sponsor. An institution such as an university can also act as a sponsor. The fact-finding mission received conflicting information during interviews on whether or not a church can act as a sponsor. The policy applied to Christians was said to have been relaxed after the bomb attack at a church in Baghdad in October 2010. Christians may currently be able to nominate senior clerics as sponsors. The fact-finding mission heard that it is easier for Kurds originating outside the KRG area than for persons of other ethnicities to find a sponsor in the region.”

Published in March 2012, the Joint Report of the Danish Immigration Service / UK Border Agency Fact Finding Mission to Erbil and Dahuk, Kurdistan Region of Iraq (KRI), conducted 11 to 22 November 2011 (“the Danish/UK report”) gave the following information:

“1.02 According to the Director of an international NGO in Erbil, all Iraqis irrespective of ethnic origin or religious orientation are free to enter KRI through the KRG external checkpoints by presenting their Iraqi Civil ID Card [and] there were thousands of persons of Arab origin living in KRI, many living with their families, whilst others had come to KRI for work, including individuals.

1.08 [The Director of the Bureau of Migration and Displacement (BMD) of the Ministry of Interior in Erbil explained that at] present approximately 40,000 IDP families from [southern and central] Iraq and the disputed areas reside in all three governorates of KRI, i.e. Erbil, Suleimaniyah and Dohuk governorates.

1.10 ... [The Director of BMD stated that] there are large numbers of IDPs from religious minority communities in [southern and central] Iraq and the disputed areas. These are mostly Christians and Saebaens who were displaced following sectarian violence.

2.04 [The Head of the Private Bureau of General Security (Asayish)] explained that it was important the KRG authorities knew who was entering KRI and therefore the Asayish had good levels of cooperation with Iraqi intelligence, sharing details of persons who they were required to arrest and stop. In addition the Asayish maintained their own classified information on terrorist groups, such as Ansar-e-Islam or Al Qaeda in Iraq. [He] explained there were two security lists in operation, the “black list”, which included persons who had an arrest warrant outstanding for their detention and a second list, i.e. the “stop list”.

2.16 According to [the Head of Asayish,] at KRG external checkpoints, documents would be required to prove the identity of a person[. T]his could include their Civil ID Card, Nationality Card, passport or, if they worked for a government department, their departmental ID card. However[, he] further explained that a person would not necessarily be denied entry into KRI because he or she lacked some identification documents, as the system is computerised. [He] went on to explain that a person already on their database system would be logged with their photo and name recorded onto the system. Consequently such a person could even enter KRI with only a driving licence or a similar document which proved the individual’s identity and Iraqi citizenship.

2.28 [The General Manager of Kurdistan checkpoints in the Kurdistan Regional Security Protection Agency, KRG Ministry of Interior, Erbil] explained [that] after a person had finished providing information about their identity to Asayish at the KRG external checkpoint, they would then undergo a second procedure at the checkpoint to apply for the appropriate entry card. There existed three entry cards: a Tourism Card, a Work Card, and an Information Card/Residency Card for those seeking to reside in KRI. Once the relevant card had been issued, the person would then be free to travel throughout KRI, including travel between the three KRI governorates, without being required to show any further form of documentation. [He] stated that this procedure made it easy for anyone to move freely within KRI.

2.30 During a visit by the delegation to the Mosul-Erbil checkpoint, ... [w]hen asked what would happen if a person did not have an address or know anyone in KRI, [the major who had overall operational responsibility for the checkpoint] explained that such a person would still be allowed to enter and the majority of those coming into KRI were migrant workers in search of employment with no reference in KRI.

2.31 PAO [Public Aid Organisation, the UNHCR Protection and Assistance Centre partner in Erbil] outlined the entry procedures at the KRG external checkpoints and noted that persons seeking to enter the KRI would be questioned and asked to provide their identification, usually a Civil ID Card or Nationality Card, after which they would obtain one of three cards for entry – a Tourism Card, valid for 1 day or up to 1 month and which was renewable; a Work Card valid for 10 – 15 days which was also renewable; or an Information Card/Residency Card for those seeking to reside in KRI. PAO did not know how long this card, issued at the checkpoint, would be valid for.

3.05 The Director of an international NGO in Erbil explained that whenever there are specific security concerns and/or threats of terrorist attacks the security and entry procedures will be adapted to the situation. Such procedures only related to security concerns and not to any other factor and these procedures are normal even in Europe.

3.06 When asked if there would be variations in applied entry procedures at KRG checkpoints, an international organization (A) stated that such variations are only related to security concerns and precautions and nothing else.

3.07 According to Harikar NGO, all entry procedures are only related to security considerations and nothing else. Harikar NGO emphasized that its cooperation with the Asayish is good and that the Asayish comply with the law, including the procedures applied at KRG checkpoints. Harikar NGO has not noticed any irregularities or arbitrary practices at the checkpoints.

3.08 [The Head of Asayish] clarified that the policy requiring a person to provide a reference at the KRG external checkpoint, i.e. before entry, existed when the security situation was more precarious, but was abandoned around two or three years ago. However[, he] added there may still be some instances in which a person was asked by Asayish at the checkpoint to make a telephone call to somebody they knew, to verify their identity.

3.09 During a tour of the Mosul-Erbil checkpoint [the major who had overall operational responsibility for the checkpoint] explained that there was no longer a requirement for a reference to be present at the KRG external checkpoint and [that] this procedure was abolished around four years ago.

3.11 The Director of an international NGO in Erbil explained that the former requirement that a reference should be present at the KRG checkpoint in order for a person to enter KRI has been abolished.

3.12 Harikar NGO stated that there is no requirement for a reference to be present at a KRG checkpoint in order for an Iraqi from outside KRI to enter.

4.34 When asked how persons without genuine identity documents would be treated by the KRG authorities when seeking to enter KRI, an international organization (B) explained that a Kurd without personal ID documents may be treated more sympathetically and be permitted entry because they would normally know someone in KRI who could identify him or her or they would have a known family/clan name which was recognised. With regard to Christians, the entry arrangements were significantly easier and such persons may even be able to enter KRI without providing any documentation at all. This was because Christians were not considered a terrorist threat to the region – the KRG authorities were very lenient towards Christians. However, the international organization (B) concluded that a person of Arab origin without genuine documents to identify themselves would not be permitted entry.

4.41 According to the Director of an international NGO in Erbil, all Iraqis irrespective of ethnic origin or religious orientation are free to enter KRI through the KRG external checkpoints by presenting their Iraqi Civil ID Card. The Director added that Iraqi Turkmen, Christians and Faili Kurds normally enter through these checkpoints without any difficulties. On the other hand Iraqis of Arab origin would normally be required to undergo greater scrutiny, requested to present their Civil ID Card at the checkpoint and explain the nature and intention of their visit to KRI. However, this procedure was unproblematic and did not require that a reference should be present at the checkpoint. According to [the Director] all persons would be required to routinely show their Civil ID Card at the entry checkpoint and persons of Arab origin faced no problems in staying in the KRI. However the same source clarified that persons of Arab origin would normally have their Civil ID Card photocopied as an extra security precaution. The Director emphasized that persons of Arab origin do not need a reference to be present at the checkpoint.”


CASE OF FAZLI ASLANER v. TURKEY [Extracts]

Remainder inadmissible;Violation of Article 6 - Right to a fair trial (Article 6 - Administrative proceedings;Article 6-1 - Impartial tribunal);Pecuniary damage - claim dismissed;Non-pecuniary damage - award

András Sajó;Egidijus Kūris;Guido Raimondi;Helen Keller;Nebojša Vučinić

The applicant was born in 1963 and lives in Ankara.

In 1993 the applicant, who was a court registrar (zabıt kâtibi) in the registry of the Ankara Tax Court, passed a local competitive examination organised by the Ankara Judicial Committee for the post of head registrar (yazı işleri müdürü) at the Ankara State Security Court. However, since his ranking (15th place) in the competition was insufficient for him to obtain the post, he was placed on the reserve list drawn up at the close of the competition. The first successful candidate was appointed to the post in question. The second successful candidate was subsequently appointed to a position as head registrar in the second section of the Ankara State Security Court.

On 20 August 1997 the applicant applied to the Ministry of Justice to be appointed to the post of head registrar at the Eskişehir Administrative Court.

The authorities having refused his request, he lodged an application for judicial review with the Ankara Administrative Court (“the Administrative Court”).

By a judgment of 17 September 1998 the Administrative Court upheld the applicant’s claims. The court found that of the candidates who had passed the aforementioned competition, seven who had done better and eleven who had done less well than the applicant had been appointed head registrars in other judicial districts, and concluded that the authorities’ refusal had had no basis in law.

The Ministry of Justice appealed on points of law against that judgment.

As the appeal lacked suspensive effect, the Ministry proceeded to appoint the applicant to the post of head registrar in Eskişehir, in compliance with the judgment.

On 20 December 2000 the Fifth Administrative Proceedings Division of the Supreme Administrative Court (“the Fifth Division”) quashed the impugned judgment, contrary to the submissions of the Advocate-General, Ms A.Ö. The Fifth Division pointed out that the competitive examination organised by the Ankara Judicial Committee had been intended to fill a post in the Ankara State Security Court and that registration on the reserve list had not entitled the candidate in question to a post as head registrar in a court within the jurisdiction of a different judicial committee. It explained that an appointment could only be made to another judicial district at the request of the judicial committee in question or else in order to meet current judicial needs, upon a decision from the Ministry of Justice, which had discretionary powers in this field.

The bench comprised five judges, including Ms T.Ç. and Mr M.R.Ü., and was presided over by Mr E.Ç.

On 21 March 2002 the same division dismissed a request by the applicant for rectification of the judgment, on the grounds that none of the preconditions for recourse to this remedy as set out in the Code of Administrative Procedure had been met.

On 1 July 2002 the Administrative Court decided to maintain the position set out in its initial judgment, thus electing to disregard that adopted by the Fifth Division of the Supreme Administrative Court (ısrar kararı).

Following a fresh appeal on points of law lodged by the authorities, the case was referred automatically to the General Assembly of the Administrative Proceedings Divisions of the Supreme Administrative Court (Danıştay İdari Dava Daireleri Genel Kurulu; “the General Assembly”) owing to the resistance of the court of first instance.

On 17 January 2003 the said General Assembly quashed the judgment delivered by the Administrative Court by twenty-two votes to nine. Mr E.Ç. and Mr M.R.Ü. were on the bench, which was presided over by Ms T.Ç. in her capacity as Vice-President of the Supreme Administrative Court, a post to which she had recently been elected. The bench also included three judges who had adjudicated on the request for rectification of the Fifth Division’s judgment of 20 December 2000.

On an unspecified date the applicant submitted a request for rectification of the General Assembly’s judgment.

On 11 December 2003 the General Assembly rejected that request on the grounds that none of the conditions set out in the Code of Administrative Procedure had been met. Ms A.Ö., who had recently been promoted to the Supreme Administrative Court, sat on the bench, alongside other judges who had previously adjudicated in the case.


No violation of Article 3 - Prohibition of torture (Article 3 - Expulsion) (Conditional) (Kyrgyzstan)

Aleš Pejchal;André Potocki;Angelika Nußberger;Ganna Yudkivska;Helena Jäderblom;Mark Villiger;Vincent A. De Gaetano

The applicant was born in 1985 and is currently in Sweden.

In December 2009 the applicant arrived in Sweden and applied for asylum and a residence permit. Before the Migration Board (Migrationsverket), he submitted essentially the following. He is an ethnic Uyghur from Bishkek, Kyrgyzstan. He had run a business in his home country and had bought goods from his business partner, also an ethnic Uyghur, in China. In August 2009 the business partner had been arrested and since he had been in the possession of a receipt from the applicant, they had both been indicted on suspicion of financially supporting the Uyghur disturbances in China. In September 2009 the applicant had been arrested by the Kyrgyz police. His health had deteriorated while he was in custody and, after his release, he had been hospitalised because of his kidney problems. The doctors had informed him that he needed to have blood dialysis but that there was a two-year waiting list. After having been pressured by the authorities, the doctors had informed the applicant that he would not receive any blood dialysis. Moreover, his family had informed him that the police had come to his house looking for him several times after he had left the country. He suffered from chronic kidney failure and was in need of dialysis three times per week.

The Board held a supplementary interview with the applicant in June 2010 where he claimed that, during his detention, the Kyrgyz police had taken his passport, forced him to sign a travel ban and had also ill-treated him. He had been summoned to appear in court a few times and, after the second summons, he had left the country. He had received written summonses but he had not brought them with him to Sweden and he could not contact his family since he feared their telephone was tapped. The applicant further believed that the Chinese authorities had contacted the Kyrgyz authorities and that for this reason he had been refused medical treatment. However, he also claimed that he had been refused treatment already in the spring of 2009, before being called by the police.

On 17 June 2010, the Migration Board rejected the application. It first noted that the applicant had failed to submit any written evidence in support of his claims. It further found it noteworthy that central parts of the applicant’s story had only been provided at the supplementary interview and not at the initial interview or in written submissions. It therefore considered that he had escalated the threat against him during the asylum proceedings. The Board further noted that the applicant had submitted contradictory information as to when he had been denied health care. First he had stated that he had been refused dialysis after his detention in the autumn of 2009 while, during the supplementary interview, he had stated that he had been refused treatment already in the spring of 2009. In any event, the Board observed that there had been a regime change in Kyrgyzstan since the applicant had left the country and that there was nothing to indicate that the present regime would have any specific interest in him. Thus, the Board concluded that the applicant was not in need of international protection.

As concerned the applicant’s health, the Board noted that the applicant had submitted a medical certificate according to which he suffered from chronic kidney failure secondary to chronic glomerulonephritis and received blood dialysis three times per week. Without the dialysis he would die within two to three weeks. The Board found that, according to the applicant’s own submissions, blood dialysis was available in Kyrgyzstan and, since he had not been found credible, he had also failed to substantiate that he would be denied proper treatment upon return. Consequently, he could not be granted a residence permit and was to be expelled from Sweden.

The applicant appealed to the Migration Court (Migrationsdomstolen), maintaining his claims and adding that he had not given contradictory information about the refusal to treat him in Kyrgyzstan. He had been diagnosed during the spring of 2009 and then been informed about the two to three years’ waiting time. However, it was only after his arrest in September 2009 that the doctors told him that he would not receive any dialysis treatment at all. As concerned the regime change, there was no indication that the situation had improved for the Uyghur people. He further submitted new medical certificates confirming his illness and need for treatment.

The Migration Court decided to hold an oral hearing during which the applicant added, inter alia, the following. He had been questioned by the police twice. The first time, in September 2009, the police had asked him whether he financially supported the Uyghur disturbances in China and they had beaten him all over his body, including on the kidneys. When he had lost consciousness, the police had become scared and had released him. During the second questioning, the police had confiscated his passport and imposed a travel ban on him. He had later been summoned to court but had not attended. Instead, he had decided to leave the country and had paid a smuggler to help him. After arriving in Sweden, he had been in contact via telephone and internet with friends and family in Kyrgyzstan, who had informed him that the Kyrgyz authorities had been to his house looking for him and that he had received further summonses. In relation to his illness, he claimed that the Chinese would keep searching for him and that he would therefore not receive any treatment in his home country. He also submitted an extract from his Kyrgyz medical record which he had received when he was released from hospital in November 2009 and which he had brought with him to Sweden.

On 13 July 2011, the Migration Court rejected the appeal. It noted that the applicant had failed to substantiate his identity but accepted that he came from Kyrgyzstan. It further observed that he had not submitted any written evidence in support of his alleged need for protection for which reason his credibility was decisive for the outcome. However, the court considered that the applicant’s submissions were far-fetched, lacking in detail and that they contained contradictory information. For instance, as concerned the applicant’s submissions that the Chinese authorities suspected him of sponsoring the Uyghur disturbances in China, the court found this improbable since the applicant had had a clear business relationship with the person in China over several years. Moreover, he had submitted contradictory information as to when he had been refused medical treatment and how many times he had been summoned to court. Therefore, the court concluded that the applicant’s submissions were not credible and that he had failed to substantiate that he would be at risk of persecution upon return.

As to the applicant’s health, the court noted that it was undisputed that he suffered from chronic kidney failure and that he was in need of regular blood dialysis and medication to survive. Without the dialysis, he would die within a couple of weeks and, apart from regular treatment, the only other solution was a kidney transplant. His state of health was consequently extremely serious. Moreover, the court observed that it was clear that blood dialysis was available in Kyrgyzstan while, according to the applicant, kidney transplants were not carried out. According to the applicant’s own submissions, in the spring of 2009 he had been placed on a waiting list for dialysis and the waiting time had been two to three years. After having been arrested in September 2009, his name had allegedly been removed from the waiting list and he had been refused treatment. However, the court noted that, according to the extract from the applicant’s medical records, he had been hospitalised in Kyrgyzstan because of his kidney disease in April 2009 and again from 27 October to 5 November 2009, on the second occasion with the diagnosis of chronic terminal kidney failure. Since, according to the most recent Swedish medical certificate, a person with such a diagnosis would die within a couple of weeks without blood dialysis, the court concluded that the applicant had received medical care both before and after being arrested by the police. He had thus failed to substantiate that he would not receive adequate treatment within a reasonable time upon return to Kyrgyzstan.

Upon further appeal by the applicant, the Migration Court of Appeal (Migrationsöverdomstolen) refused leave to appeal on 24 November 2011. Hence, the expulsion order became enforceable.

On 23 December 2011 the applicant lodged his application with the Court and requested it to apply Rule 39 of the Rules of Court. On 18 January 2012, the acting President of the Section to which the case had been allocated acceded to the applicant’s request and indicated to the Government that the applicant should not be expelled to Kyrgyzstan for the duration of the proceedings before the Court. On the same date, the application was communicated to the Government.

In view of the Court’s indication to the Government, the Migration Court decided, on 19 January 2012, to stay the enforcement of the expulsion order against the applicant until further notice.

In the meantime, on 2 January 2012 the applicant requested the Migration Board to stay the enforcement of the expulsion order as there were impediments to it due his deteriorated health and to grant him a residence permit. He submitted a medical certificate, dated 29 December 2011, by a Chief Physician at the Kidney Medical Clinic of Karolinska University Hospital in Stockholm. It stated that the applicant had had a crisis reaction to the expulsion order against him and had not attended two dialysis sessions. As a result, his health had significantly deteriorated and he had been given emergency dialysis and had also met with a psychiatrist. He had been kept in hospital due to his poor mental and physical health. It would be completely unreasonable to expel him without ensuring that dialysis would be available to him upon return to his home country.

On 23 January 2012 the Migration Board rejected the request. It considered that the applicant had invoked no new circumstances concerning his health which could alter the assessment made by the Migration Court in the initial proceedings or which amounted to an impediment to the enforcement of the expulsion order.

In September 2012 the applicant again requested the Migration Board to stay the enforcement of the expulsion order and to grant him a residence permit in Sweden since the impediment to the enforcement was permanent. He had been in contact with his family in Kyrgyzstan and, through them, obtained a certificate from the Kyrgyz Ministry of Health, dated 9 July 2012, which confirmed that the applicant had been on the national waiting list for blood dialysis since 27 October 2009. It further stated that due to the lack of dialysis equipment and the increasing number of patients in need of treatment, there was currently no possibility to offer the applicant dialysis within the public health care system in the country. The applicant had also received from his family a certificate, dated 23 December 2011, and issued by the hospital where he had previously been treated, the National Centre for Cardiology and Treatment. It stated that the applicant had been treated at the Centre’s unit for nephrology for glomerulonephritis and final stages of chronical kidney failure. It further stated that due to the lack of equipment he could not go through the programme for dialysis. He had, however, been put on the national waiting list.

On 20 November 2012 the Migration Board rejected the request as it found that the new certificates did not alter the assessment made in the initial proceedings and that, consequently, there were no grounds on which to grant the applicant a residence permit.

In February 2014 the applicant’s father wrote to the Kyrgyz Ministry of Health requesting that the applicant be given treatment in Kyrgyzstan for his illness. He noted in the letter that he had had to send the applicant to Sweden to save his life but that they wanted him to be treated in Kyrgyzstan.

A week later, on 17 February 2014, the Ministry replied to the applicant’s father. However, the reply, which contains no specific addressee, would appear to be rather a request to the Swedish health care system to provide the applicant with proper treatment as it states that, due to the long waiting time and lack of dialysis equipment, it is not possible for them to treat the applicant in Kyrgyzstan and they are grateful for the invaluable contribution to the health care of a citizen of Kyrgyzstan.


Alvina Gyulumyan;Ján Šikuta;Johannes Silvis;Kristina Pardalos;Luis López Guerra

The applicant, Mr Blenis Shyti, is an Albanian national, who was born in 1983 and is currently detained in Poarta Albă Prison. He was represented before the Court by Ms A. Grigorescu, a lawyer practising in Bucharest.

The Romanian Government (“the Government”) were represented by their Agent, Ms I. Cambrea, of the Ministry of Foreign Affairs. The Albanian Government, who had been informed of their right to intervene in the proceedings, under Article 36 § 1 of the Convention, gave no indication that they wished to do so.

The facts of the case, as submitted by the parties, may be summarised as follows.

In December 2004 the applicant was placed in pre-trial detention on suspicion of aggravated theft, robbery, aggravated murder, human trafficking and unlawful possession of firearms.

On 5 April 2005 the applicant was indicted together with three other persons for human trafficking and unlawful possession of firearms. No information has been provided to the Court concerning the outcome of these proceedings before the courts.

On 6 June 2005 the applicant was indicted together with N.Ş., a Romanian citizen, for the crimes of aggravated theft and the robbery and aggravated murder of three persons, including an eight-year old girl.

In September 2005 the applicant’s trial started before the Constanţa County Court.

By a decision of the prison administration, issued on 29 July 2005 following an attempt to escape, the applicant was classified as “dangerous prisoner”. Between 13 October 2005 and 21 December 2010 this decision had been revised and maintained by the prison administration on twenty-three occasions, based on reasons such as the initial evasion attempt, the severity of the crimes for which the applicant was prosecuted and the fact that he had been also indicted for unlawful possession of firearms.

On 12 June 2008 the Constanţa County Court convicted both the applicant and N.Ş. for aggravated theft, aggravated homicide and robbery and sentenced them to life imprisonment. The court held that the applicant together with N.Ş. broke into the house of a family they were acquainted with, in order to rob and murder them. They strangled the woman and stabbed the man ten times and then buried their bodies in the woods. They also killed their eight-year old daughter by strangling her and then buried her while she was still alive. This judgment became final on 24 November 2009 when the High Court of Cassation and Justice rejected the appeals on points of law (recurs) submitted by the applicant and N.Ş.

According to the applicant he had to wear handcuffs during the public hearings throughout the entire criminal trial.

In a letter addressed to the Romanian Government’s Agent before the Court on 2 November 2011, the president of the Constanţa County Court submitted that, following verification of the entire file concerning the applicant starting from the confirmation of his pre-trial detention on 16 December 2004 and until the delivery of the final judgment on 24 November 2009, the use of handcuffs was discussed on the occasion of five hearings as follows:

– at the hearing of 3 March 2006 the applicant’s representative requested the court to allow that the applicant’s handcuffs were taken off since they interfered with his freedom of expression. The court rejected this request based on the applicant’s classification as dangerous prisoner by the prison authorities;

– at the hearing of 12 April 2006 the applicant’s representative renewed the request which was allowed by the court;

– at the hearing of 15 December 2006 the request was again renewed and allowed by the court;

– at the hearing of 23 November 2007 the applicant’s representative asked for the recusal of the trial judge alleging that he had submitted the applicant to ill-treatment by keeping him handcuffed during thirty-five hearings. This request was rejected as the reason invoked was not amongst the reasons provided by law for challenging the impartiality of a judge. The applicant was advised that a complaint of ill-treatment should be addressed to the competent authorities;

– at the hearing of 14 April 2008 the applicant’s representative again requested that the applicant’s handcuffs were taken off. The request was allowed by the court.

An overview of the relevant provisions in force at the relevant time concerning the use of handcuffs during detention, including pending trial, is presented in Costiniu v. Romania ((dec.), no. 22016/10, §§ 14-17, 19 February 2013).


Julia Laffranque;Nebojša Vučinić;Paul Lemmens;Stéphanie Mourou-Vikström;Ksenija Turković

The applicants, Mr Kemal Alemdar, Mr Şaban Alemdar, Ms Hafize Alemdar, Mr Nihat Alemdar, Mr Cihat Alemdar, Ms Kâniye Alemdar, Mr Cemal Alemdar, Ms Rabia Kahraman (Alemdar), Ms Saliha Gezgin (Alemdar), Ms Hatice Şirin (Alemdar), Ms Melahat Tıknaz, Mr Şakir Tıknaz, Mr Bahattin Tıknaz, Mr Fehmi Tıknaz, Mr Murat Tıknaz, Ms Aysel Örek (Tıknaz), Ms Samiye Özdemir and Ms Saniye Keskin Alemdar, are eighteen Turkish nationals. They were born in 1954, 1953, 1927, 1954, 1959, 1959, 1956, 1943, 1940, 1935, 1946, 1947, 1961, 1930, 1954, 1956, 1964 and 1959 respectively. They were represented before the Court by Ms Gülseren Çanga, a lawyer practising in Sakarya.

s, may be summarised as follows.

In 1983, Mahmut Alemdar and İsmail Alemdar, the applicants’ predecessors, purchased a plot of land in Sapanca, in the Uzunkum District of Sakarya, which had been registered in the land register as plot no. 9, parcel no. 317.

In 1993, the forest administration conducted a cadastral survey. On 9 April 1993, as a consequence of the survey, an annotation was made in the land register indicating that the applicants’ land could not be sold as it was classified as part of the public forest.

On 25 April 2001 the applicants instituted proceedings before the Sapanca Civil Court of First Instance seeking the annulment of the outcome of the cadastral survey.

On 26 September 2002 the Sapanca Civil Court of First Instance dismissed the applicants’ case, holding that the cadastral survey was in conformity with the law. An appeal and a request for rectification lodged by the applicants were subsequently dismissed by the Court of Cassation and the decision became final on 15 July 2005. The final decision was notified to the applicants on 17 August 2005.

Under Article 169 of the Turkish Constitution of 1982, ownership of public forests may not be transferred to others; public forests will be managed and exploited by the State in accordance with the law. Ownership of such forests cannot be acquired through adverse possession, nor may the forests be subject to any easement, unless it is considered to be in the public interest.

Under section 7 of Law no. 6831 of 31 August 1956, the cadastral commissions decide whether an area will be categorized as a public forest or a private forest. The same law governs the way in which the cadastral commissions operate (sections 7 to 12).

A full description of the relevant domestic law may be found in Turgut and Others v. Turkey (no. 1411/03, §§ 41-67, 8 July 2008) and Köktepe v. Turkey (no. 35785/03, §§ 36-65, 22 July 2008).

The object of Law no. 6384 was to provide for the settlement, by means of compensation, of applications lodged with the Court concerning length of judicial proceedings, and non-enforcement or delayed enforcement of judicial decisions. A Compensation Commission was set up for that purpose. A full description of the relevant domestic law may be found in Turgut and Others v. Turkey ((dec.), no. 4860/09, §§ 19-26, 26 March 2013).

The competence ratione materiae of the Compensation Commission was subsequently extended by a decree which came into force on 16 March 2014. The decree extended the competence of the Compensation Commission to the examination of other complaints, such as alleged restriction of the right of detainees to correspondence in a language other than Turkish and the prison authorities’ refusal, on different grounds, to hand over periodicals. A full description of the relevant domestic law may be found in Yıldız and Yanak v. Turkey ((dec.), no. 44013/07, §§ 9-17, 27 May 2014).

The Turkish Council of Ministers issued a decree which came into force on 9 March 2016. The decree extended anew the competence ratione materiae of the Compensation Commission.

The Compensation Commission is now entitled to examine the following subjects under Article 4 of the decree, which reads as follows:

“a) Applications concerning an alleged violation of the right to peaceful enjoyment of possessions on account of the annulment of an applicant’s title deeds because his or her land was classified as part of the public forest area, or as a result of the application of section 2/B of Law no. 6831, or because the land was classified as part of the public forest area in cadastral surveys;

b) Applications concerning an alleged violation of the right to peaceful enjoyment of possessions on account of the annulment of an applicant’s title deeds because the impugned land was classified as located within a coastal area;

c) Applications concerning an alleged violation of the right to peaceful enjoyment of possessions on account of the allocation of the impugned land for public use in local land development plans;

d) Applications concerning an alleged breach of an applicant’s right to private and family life on account of the respective disciplinary sanctions imposed on detainees and convicted persons by the prison authorities;

e) Applications concerning an alleged breach of the right to respect for correspondence on account of the prison administration’s refusal to receive or send letters or similar correspondence drafted in Turkish.”