TrustHLT/LaCour huggingface dataset:
AP1 (Applicant): Firstly, Article 4.4 of the Nekonsa Directive, 2011-95 EU, this rule states that the fact
AP1 (Applicant): that the applicant already has been subjected to prosecution, other serious harm or direct threats of such prosecution or harm, are a serious indication that the applicant's fear of prosecution is well-founded.
AP1 (Applicant): In this case, there is a real risk that the person will suffer serious harm unless there is good reasons to consider that such prosecution or serious harm will not be repeated.
AP1 (Applicant): Secondly, case law testifies to this.
AP1 (Applicant): In this matter, I especially think of Arsic v. Sweden.
AP1 (Applicant): In this case, they called here that the burden of proof should be shifted to the expanding States since Arsic had shown that he had been exposed to torture in his home country.
AP1 (Applicant): These tortures strongly indicated uncontinual e-treatment.
AP1 (Applicant): The Swedish government has stated in their submitted observation that our case and Arsic v. Sweden are not compared more, since the e-treatment Arsic suffered was torture and
AP1 (Applicant): which had been committed by the State officials.
AP1 (Applicant): As stated in HLR v. France, it doesn't matter whether the danger emerates from persons or
AP1 (Applicant): from group of persons who are not public officials.
AP1 (Applicant): In our case, the Swedish government has determined that Jake and his family had been exposed to protection found in treatment.
AP1 (Applicant): Because of this, our case is comparable with Arsic v. Sweden.
AP1 (Applicant): Thirdly, like the dissenting Judge Supancic, we argue that our case is a prima facie case.
AP1 (Applicant): The e-treatment that Jake and his family had been subjected to during 2004 to 2008 is already proven and accepted by the Swedish government.
AP1 (Applicant): The evidently fact that Jake and his family already suffered e-treatment should lead to the presumption of the ultimate fact, e-treatment contrary to Article 3 of the Convention.
AP1 (Applicant): This leads to the conclusion that the burden of proof and the risk of non-prosecution should be on the reporting state.
AP1 (Applicant): Summary, these three facts that I just counted for can't lead to another conclusion that my applicant's case, the burden of proof, should be shifted and switched to the Swedish government.
AP1 (Applicant): If the Court shares our view regarding the placement of the burden of proof, it must also be examined at which level the burden of proof should be placed on.
AP1 (Applicant): The Court is well aware of the various evidence burdens applicable in different cases.
AP1 (Applicant): For example, in civil law, a party has to be able to make their claims probable.
AP1 (Applicant): In criminal law, the prosecutor has to prove that something is beyond reasonable doubt.
AP1 (Applicant): In our case, we argue that the Swedish government's burden of proof level should be as high as in criminal law.
AP1 (Applicant): And why is this?
AP1 (Applicant): Well due to the fact that the protection against e-treatment contrary to Article 3 of the Convention are imperatively right.
AP1 (Applicant): A decision of expulsion may give rise to an issue under Article 3 and hence engends the responsibility of the State under the Convention.
AP1 (Applicant): Concerning the fact that a prohibition of torture is general and without exceptions, it is not more than reasonable that the government have to show that it's beyond reasonable doubt that my client is not facing e-treatment upon return.
AP1 (Applicant): If my client is sent back and do face e-treatment, or in worst case, death, it was not only be contrary to the Conviction.
AP1 (Applicant): Matter of fact, there would be a breach against due congence.
AP1 (Applicant): The obligation to protect person from inhumane and degrading treatment applies erga omnes and this cannot be ignored.
AP1 (Applicant): Have the Swedish authorities been able to prove beyond reasonable doubt or even made it probable that Jäke and his family are not going to face e-treatment upon a return to Iraq?
AP1 (Applicant): No, they have not.
AP1 (Applicant): The contrary information that the Swedish government have submitted is not enough to reboot this.
AP1 (Applicant): The government has not, in a case-specific and individualized matter, presented evidence that contradicts what my client has put forward.
AP1 (Applicant): Almost every day media reports on continuing escalating violence in Iraq and the government tend to ignore this, taking support in contrary information that is not updated.
AP1 (Applicant): Our submitted evidence and our submitted contrary information must lead this Court to conclude that an expulsion order in this case are in fact a breach against Article 3 of the Convention of Human Rights.
AP1 (Applicant): With this appeal to the Court to choose the certain before the uncertain, I hereby conclude my proceeding.
AP1 (Applicant): Thank you Mr. President and Honourable Members of the Court.
Guido Raimondi (JudgeP): Thank you very much, Mrs. Skyfacos.
Guido Raimondi (JudgeP): Now, Mr. Ambassador Rönquist, please, you have the floor.
GR1 (Government): the case before the Grand Chamber concerns the issue of whether the applicant family would face a real risk of being subjected to treatment in breach of Article 3 of the Convention by Al-Qaeda due to the applicant husband's cooperation with the American forces until 2008.
GR1 (Government): It also concerns alleged risk of treatment in breach of Article 3 of the Convention by Iraqi authorities due to the applicant husband's participation in a televised public debate.
GR1 (Government): The government's written observations of 11th January give a full account of how the government views this case.
GR1 (Government): I therefore refer to the government's observations in extenso.
GR1 (Government): In the government's pleadings here today, I will demonstrate that the expulsion of the applicant family would not constitute a breach of Article 3 of the Convention.
GR1 (Government): The government would like to invite the court, when examining the case at hand, to assess and take full account of the effectiveness of the domestic procedures and avoid making a reassessment unless the assessment of the domestic authorities and courts is considered to have been inadequate or the outcome of the proceedings arbitrary.
GR1 (Government): Mr. President, firstly, I will expand
GR1 (Government): on the risks of treatment in breach of Article 3 that the applicant family has claimed they could be subjected to upon return to Iraq.
GR1 (Government): Secondly, I will address the issue to what extent an asylum seeker would normally be required to discharge a burden of proof in showing the existence of a real risk of being subjected to ill treatment contrary to Article 3 in the event of expulsion.
GR1 (Government): And in particular, to what extent the applicant family had such a burden of proof in the domestic proceedings.
GR1 (Government): Mr. President, firstly, as regards
GR1 (Government): the risk of treatment in breach of Article 3 that the applicant family has claimed they could be subjected to upon return to Iraq, it is relevant to note the following.
GR1 (Government): The applicants have stated that they have been persecuted by al-Qaeda in Iraq.
GR1 (Government): In their February submission, they also claimed that ISIS-Daesh has a particular interest in those who are accused of collaborating with the American forces.
GR1 (Government): They have also submitted that they could not seek protection from the domestic authorities in Iraq as people within the Iraqi authorities were in collaboration with al-Qaeda on a daily basis, and that the Iraqi authorities did not have the ability to protect the applicant husband.
GR1 (Government): However, the applicant husband has never sought any protection from the Iraqi authorities, and has therefore failed to show that he has been unable to attain protection from the domestic authorities.
GR1 (Government): Mr. President, the applicants have
GR1 (Government): claimed that due to the applicant husband's cooperation with the American forces until 2008, they have been subjected to persecution, and that this risk still remains.
GR1 (Government): They have thus not suffered any kind of persecution since the applicant husband stopped working for the American forces.
GR1 (Government): The government would like to point to the following information, which has been obtained from relevant country of origin information.
GR1 (Government): For example, the Migration Agency report on al-Qaeda in Iraq, and the Congressional Research Service on Islamic State and US Policy, both from December last year.
GR1 (Government): Al-Qaeda in Iraq was founded by al-Zarqawi in Iraq in 2003.
GR1 (Government): The organization was the origin of the international network of al-Qaeda.
GR1 (Government): The ultimate goal of al-Qaeda was to establish an Islamic caliphate in the region, and to encourage sectarian tensions, which would ultimately conquer the American occupying power in the country and overthrow the Shia government.
GR1 (Government): Daesh, on the other hand, is a transnational Sunni Islamist insurgent and terrorist group.
GR1 (Government): And the recent advancement of Daesh and aligned forces in the northwestern and central parts of Iraq has resulted in numerous civilian casualties and internally displaced persons.
GR1 (Government): Daesh persecutes Shia Muslims and religious minorities from seized Iraqi territory under its control, and in areas not under its control.
GR1 (Government): Even if the precise nature of Daesh's relationship to al-Qaeda from 2006 onward is unclear, Daesh differs from al-Qaeda both strategically and ideologically.
GR1 (Government): While al-Qaeda's primary enemy is the United States, the primary target of Daesh is rather what they consider to be apostate regimes in the Arab world.
GR1 (Government): When the American forces withdrew from Iraq in 2011, the conflict in Syria had already begun.
GR1 (Government): By that time, Daesh took the opportunity to grow.
GR1 (Government): According to recent country of origin information, Daesh is conducting a war against the state of Iraq by using asymmetrical warfare in the form of terrorist attacks mainly directed against Iraqi public officials and the Shiite civilian population.
GR1 (Government): In light of what has now been said, the government holds that country of origin information shows that the general situation in Baghdad in 2008 with groups of al-Qaeda threatening and punishing everyone cooperating or working with the Americans or Western forces is no longer at hand.
GR1 (Government): Instead, current country of origin information shows that the greatest threat in relation to the general situation in Baghdad today emanates from Daesh seeking to persecute Shia Muslims in general and other religious minorities.
GR1 (Government): In the applicant's case, the threats and the violence were closely connected to the applicant husband's cooperation with the American forces, as this cooperation has ceased since long.
GR1 (Government): The situation for the applicants has changed.
GR1 (Government): Furthermore, according to country of origin information, the Iraqi authorities are not today deemed to be infiltrated by terrorist groups such as al-Qaeda or Daesh, as suggested by the applicants.
GR1 (Government): These groups have their origins in Sunni extremist groups, while the authorities in Baghdad are dominated by the Shia community.
GR1 (Government): Thus, the government maintains in making a full and ex-nunk assessment that there is not sufficient evidence to conclude that the applicants would face a real and individual risk of being subjected to treatment contrary to Article 3 of the Convention if the expulsion orders were implemented.
GR1 (Government): Should the Grand Chamber reach a different conclusion in this regard, the government leaves it to the court to assess whether an enforcement of the expulsion orders against the applicants to other parts of Iraq than Baghdad, the internal flight alternative, would be incompatible with Article 3 of the Convention.
GR1 (Government): It is only if this would be the case that the breach of Article 3 of the Convention could be ruled.
GR1 (Government): Secondly, with regard to the question of to what extent an asylum seeker would normally be required to discharge a burden of proof in showing the existence of a real risk of being subjected to ill treatment contrary to Article 3 in the event of expulsion, and in particular, to what extent the applicant family had such a burden of proof in the domestic proceedings, the government would like to submit the following.
GR1 (Government): Under the Convention, it is for the applicants to adjuce evidence capable of proving that there are substantial grounds for believing that if removed to the country of destination, they would be exposed to a real risk of being subjected to treatment contrary to Article 3.
GR1 (Government): Where such evidence is adjuced, it is for the government to dispel any doubts about it.
GR1 (Government): Under Swedish asylum law, the burden of proof lies on the applicant who has to establish, to a reasonable degree, his or her grounds for protection.
GR1 (Government): It is the applicant himself or herself who should submit all relevant information for the assessment of his or her international protection.
GR1 (Government): According to the preparatory work to the Swedish Aliens Act, the standard of proof cannot be set too high for claims concerning the risk of persecution.
GR1 (Government): As it may be difficult for an applicant to substantiate all claims with written or other evidence, the obligation to elicit and evaluate the relevant facts is shared between the applicant and the migration authorities and courts.
GR1 (Government): The migration authorities and courts must ensure that the investigation of the case is adequate and complete.
GR1 (Government): Furthermore, it may be reiterated that under Swedish asylum law, the standard of proof is lower compared to other administrative cases in view of the application of the benefit of the doubt.
GR1 (Government): However, a prerequisite for giving the applicant this benefit is that the applicant has told the truth and assisted the examiner to the full in establishing the facts of his or her case, and that the examiner is satisfied as to the applicant's general credibility.
GR1 (Government): In this regard, the applicant's statements must be coherent and not contradictory.
GR1 (Government): It follows from Swedish case law and the preparatory works of the Aliens Act that the assessment of whether an applicant fulfills the condition to become a refugee is forward-looking and based primarily on the risk of persecution upon return to the home country.
GR1 (Government): It also follows from the qualification directive that this assessment is to be carried out on an individual basis while taking into account all relevant facts as they relate to country of origin information at the time of taking a decision on the application.
GR1 (Government): An indication that such a risk of persecution exists is that the applicant seeking asylum has been subjected to persecution previously, although this is not by itself enough.
GR1 (Government): It is also required that the abuse that has constituted grounds for the persecution in the home country is still relevant and that there are grounds for believing that such persecution will be repeated.
GR1 (Government): In the government's view, the domestic migrations authorities have not applied an excessive burden of proof on the applicants.
GR1 (Government): The applicant husband has, in a forward-looking risk assessment, not substantiated that he and his family are in need of protection today.
GR1 (Government): As I have already underlined, the greatest threat in relation to the general situation in Baghdad today emanates mainly from Daesh seeking to exterminate Shia Muslims and other religious minorities.
GR1 (Government): However, in the applicant's case, the threats and the violence were closely connected to the applicant husband's cooperation with the American forces.
GR1 (Government): Thus, as this cooperation has ceased, the situation for the applicants have now changed.
GR1 (Government): The government also notes that the applicants continued to live in Iraq also after 2008 until 2010.
GR1 (Government): Mr. President, ought, as argued in his dissenting opinion
GR1 (Government): by Judge Szczepansik in this chamber judgment, the unfortunate past experiences of the applicants in this case be perceived as a concrete basis for the inference that something comparable is likely to happen to them upon being expelled to Iraq.
GR1 (Government): Indeed, the fact that an applicant has already been a victim of persecution should, in principle, lead to a very careful examination of the unremitting danger that he or she faces upon return.
GR1 (Government): This does, however, not mean that the burden of proof for any future risk that applicant might face should be on the state.
GR1 (Government): It is simply not conceivable for a state to prove that an applicant will not, on their return, be subjected to conditions or situations which would contravene Article 3.
GR1 (Government): Instead, it is, as stated by the chamber's majority, in principle, for the applicants to adduce evidence capable of proving that there are substantial grounds for believing that they would be exposed to a real risk of being subjected to treatment contrary to Article 3.
GR1 (Government): In this regard, the government would like to point to the following.
GR1 (Government): Firstly, as regards to the claim that the applicant husband had participated in a TV debate in 2008, this was mentioned for the first time in the national proceedings before the Migration Court.
GR1 (Government): In the written appeal to the Migration Court of Appeal, as well as in a later application for a re-examination before the Migration Agency, the applicant stated that it took place in February 2010.
GR1 (Government): Secondly, it was not until the applicants were denied residence permits by the Swedish Migration Agency that they claimed that al-Qaeda had searched for the applicant husband and that their house in Baghdad had been burnt down.
GR1 (Government): The government notes that had the applicants felt that the claims now invoked were crucial to their asylum claim, it could reasonably be expected of them to present their claims at a much earlier stage of the domestic proceedings.
GR1 (Government): Moreover, the applicants have claimed that Sweden made no effort to investigate the evidence that they submitted by, for example, contacting the Iraqi authorities.
GR1 (Government): The government notes that the evidence, the DVD submitted by the applicant husband to substantiate that he would risk persecution by the Iraqi authorities, clearly displays that the recording was not made after the 4th of March 2008.
GR1 (Government): The government notes that the chamber of the court agreed with the Swedish authorities that the applicants had failed to substantiate that the recording was made after 4th of March 2008, and notably that the applicant husband now also risks being persecuted by the Iraqi authorities on account of this.
GR1 (Government): It is also important to note that the documents submitted by the applicants were translated by the migration court.
GR1 (Government): From the translation, it was evident that the police report rather was issued as a proof of residence.
GR1 (Government): It was also lacking in detail about who the perpetrators might have been and how this information had been retrieved.
GR1 (Government): The witness certificate did not indicate who had been searching for the applicant husband.
GR1 (Government): Also, two different home addresses of the applicants were indicated on the witness certificate and the police report.
GR1 (Government): Both the witness certificate and the police report submitted by the applicants were of a simple nature and thus had a low value as evidence.
GR1 (Government): Accordingly, there was no reason for the domestic authorities and courts to further investigate the case.
GR1 (Government): The government holds that the Swedish authorities ensured that the case was investigated to the extent its nature so required in accordance with Swedish legislation.
GR1 (Government): The government thus argues that it would be too far-reaching if all claims or documents in support thereof automatically would require the state to investigate such claims further, for example, by contacting the authorities in the applicant's country of origin.
GR1 (Government): In accordance with established Swedish case law and the qualifications directive, as the applicant's asylum account was incoherent and contradictory, they could not be given the benefit of the doubt in the forward-looking risk assessment, which had to be made by the domestic authorities.
GR1 (Government): In view of the above, the impunged domestic decisions did not imply that an excessive burden of proof had been placed on the applicants.
GR1 (Government): Thus, there is nothing to suggest that the proceedings before the national authorities lacked effective guarantees to protect the applicants against arbitrary reform, or that the outcome of domestic proceedings was arbitrary in any way, or amounted to a denial of justice.
GR1 (Government): It is also important to note that the decisions by the domestic authorities and courts were taken in accordance with the domestic case law from the Migration Court of Appeal and the Swedish Migration Agency's handbook.
GR1 (Government): Mr. President, I would also like briefly
GR1 (Government): to address the question as to what extent an applicant who alleges a real risk of being subjected to ill treatment contrary to Article 3 in the event of expulsion would normally be required to discharge a burden of proof in showing the existence of such a risk before the court.
GR1 (Government): The applicants have relied upon the court's chamber judgment of 9 March 2010 in the case Arsi v. Sweden.
GR1 (Government): That case referred to risk for torture by Iranian authorities and the specific risk facing Iranians returning to Iran without being able to produce evidence that they had left Iran legally, and therefore had come to the attention of the Iranian authorities.
GR1 (Government): The government holds that the present case is clearly distinguishable from that of Arsi v. Sweden,
GR1 (Government): mainly as that case concerned an applicant alleging that he had suffered torture in the hands of the authorities, while the present case concerns an applicant who has suffered persecution by a non-state actor.
GR1 (Government): Moreover, in the present case, the situation in the applicant's country of origin has changed since they left.
GR1 (Government): Thus, they would no longer risk the same kind of persecution, which is also supported by the country of origin information referred to by the government.
GR1 (Government): Mr. President, as regards the applicant's demand
GR1 (Government): for just satisfaction, the applicants claim compensation for non-pecuniary damages in the amount of 20,000 euros each for their physical suffering.
GR1 (Government): The applicants further claim that they should be compensated for pecuniary damages in the amount of 10,000 euro each as a result of the violation they have suffered.
GR1 (Government): The government reiterates that as long as the expulsion order is not enforced, no damage can arise.
GR1 (Government): And also, the applicant's claim for damages should therefore be dismissed.
GR1 (Government): Further, the applicants claim compensation for costs and expenses totaling Swedish kronor 144,180, relating to the costs before the grand chamber.
GR1 (Government): As the court has repeatedly stated, an award under this head may be made only insofar as the costs and expenses were actually and necessarily incurred in order to avoid or obtain redress for the violation found.
GR1 (Government): And they must be reasonable as to quantum.