FIFTH SECTION
 
 
 
 
 
CASE OF N.M.B. v. SWEDEN
 
(Application no. 68335/10)
 
 
 
 
 
 
JUDGMENT
 
 
 
STRASBOURG
 
27 June 2013
 
FINAL
 
27/10/2013
 
This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of N.M.B. v. Sweden,
The European Court of Human Rights (Fifth Section), sitting as a Chamber composed of:
 Mark Villiger, President,
 Angelika Nußberger,
 Boštjan M. Zupančič,
 Ann Power-Forde,
 André Potocki,
 Paul Lemmens,
 Helena Jäderblom, judges,
and Claudia Westerdiek, Section Registrar,
Having deliberated in private on 28 May 2013,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
1. The case originated in an application (no. 68335/10) against the Kingdom of Sweden lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by an Iraqi national (“the applicant”) on 15 November 2010. The President of the Section acceded to the applicant’s request not to have his name disclosed (Rule 47 § 3 of the Rules of Court). 2. The applicant was represented by Mr T. Stilus, a lawyer practising in Linköping. The Swedish Government (“the Government”) were represented by their Agents, Ms C. Hellner and Ms H. Lindquist, of the Ministry for Foreign Affairs. 3. The applicant alleged that his deportation to Iraq would involve a violation of Article 3 of the Convention. 4. On 14 December 2010 the President of the Section to which the case had been allocated decided to apply Rule 39 of the Rules of Court, indicating to the Government that the applicant should not be deported to Iraq for the duration of the proceedings before the Court. 5. On 22 September 2011 the application was communicated to the Government. THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
6. The applicant was born in 1973. He originates from Baghdad. 7. The applicant arrived in Sweden on 12 December 2007 and applied for asylum the following day. In support of his application, he submitted in essence the following. He is a Christian academic who was employed at a university in Baghdad. In April 2006 he had begun working for a committee which had been established to develop research methods at the university. The committee had soon been accused of cooperating with Americans. On 20 June 2006 the applicant had written a letter to the Minister of Education, accusing a university colleague of corruption and of counteracting the work of the committee. The colleague, a member of the Iraqi Islamic Party (IIP), had found out about the accusations and had threatened the applicant, saying that bad things would happen to him. On 27 June 2006 armed men had attempted to kidnap the applicant’s daughter. Her mother had called the police and, after some shooting, the daughter had been released. On 30 June 2006 the applicant had received a letter, in which he and his family had been called Christian traitors and it had been stated that they would be killed if the applicant did not quit his job. On 8 July 2006 the applicant had reported the incidents to the police and the family had moved in with relatives. Thereafter, the applicant had found out that the head of the committee had been kidnapped and killed on 16 July 2006 and that he, as well as the other committee members, had previously received threatening letters saying that he deserved to die. The work of the committee had consequently ended and on 3 October 2006 the applicant had fled with his family to Syria. On 15 January 2008 the applicant’s parents, who lived in Baghdad, had been shot at and the father had been kidnapped and tortured until he had told the kidnappers the whereabouts of the applicant. In October and December 2008, the applicant had received threatening messages on a website. In one of the messages, the Islamic Brigade, a militia within the IIP, had warned him about returning to Iraq. 8. On 17 March 2009 the Migration Board (Migrationsverket) rejected the application. The Board did not question that the applicant was a Christian and had worked for the university committee, but did not find it likely that his work had made him a suspect of cooperating with Americans. Furthermore, as he had quit his job three years earlier, there was nothing to indicate a remaining work-related threat. Also, the applicant had failed to make plausible that his accusation against a former colleague had harmed that person or the IIP and it was thus unlikely that the applicant would be conceived of as a threat by that person. The Board further could not see any reasonable explanation for the alleged attack against the applicant’s parents, thereby questioning the credibility of this allegation. Finally, the Board noted that the security situation in Baghdad and in Iraq as a whole had improved. 9. The applicant appealed, claiming a risk of persecution on the grounds that he is a Christian and an academic, and adding that members of the IIP had asked for him and had written threatening messages on the wall of his old house in December 2009. He also stated that he had reported to the police that he suspected high profile members of the Ministry of Education of being responsible for the kidnapping attempt of his daughter. 10. On 9 June 2010 the Migration Court (Migrationsdomstolen) upheld the decision of the Board. The court held that the incidents referred to by the applicant did not constitute persecution on religious grounds. Further, it found the applicant to have had exaggerated his story by adding that he had reported to the police his suspicions concerning the perpetrators of the kidnapping attempt of his daughter. The court also pointed out that the applicant’s work for the university committee was of a limited scope and that a long time had passed since it had ended. In the absence of any political activity on the part of the applicant, it was not likely that his letter to the Ministry of Education would cause a threat of such scope as alleged by him. In sum, there was no individual threat against the applicant. 11. On 3 November 2010 the Migration Court of Appeal (Migrations-överdomstolen) refused the applicant leave to appeal. 12. Subsequently, the applicant claimed that there were impediments to the enforcement of his deportation order. He mainly invoked the general situation for Christians in Baghdad and attacks that had allegedly occurred in November 2010 in the residential area where he had used to live. 13. On 26 January 2011 the Migration Board decided not to reconsider the case, finding that no new circumstances justifying a reconsideration had been presented. II. RELEVANT DOMESTIC LAW
14. The basic domestic provisions applicable in the present case are set out in M.Y.H. and Others v. Sweden (no. 50859/10, §§ 14-19, 27 June 2013 – in the following referred to as “M.Y.H. and Others”). III. RELEVANT INFORMATION ABOUT IRAQ
15. Extensive information about Iraq can be found in M.Y.H. and Others, §§ 20-36. THE LAW
I. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION
16. The applicant complained that his return to Iraq would involve a violation of Article 3 of the Convention. This provision reads as follows:
“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”
A. Admissibility
17. The Court notes that the complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. No other ground for declaring it inadmissible has been invoked or established. It must therefore be declared admissible. B. Merits
1. The submissions of the parties
(a)  The applicant
18. The applicant claimed that, should he be returned to Baghdad or other parts of Iraq, he would face a real risk of being killed or subjected to torture or other inhuman or degrading treatment at the hands of Islamic extremist groups because of his Christian beliefs and his position as a scholar of the highest level. He further asserted that the general situation in Iraq was unsafe due to internal armed conflict and disagreement, rendering his return impossible. 19. The applicant referred to his statements made during the Swedish asylum proceedings, claiming that he had given a true account of what had happened to him. He had thereby shown that he had been and further risked personal persecution and attacks due to his belonging to the Christian minority and being a university professor. In this connection, he pointed out that his parents had been forced to flee to Syria. 20. Moreover, the Iraqi authorities were unable to protect Christians from Islamic extremists, as allegedly shown by the October 2010 massacre in the Catholic church Our Lady of Salvation in Baghdad and subsequent attacks targeting Christians. 21. As regards internal relocation, the applicant submitted that the threats against him were personal and that, for this reason, he would face them also in the Kurdistan Region. Allegedly, the persons behind the threats would be able to reach him there. (b)  The Government
22. The Government acknowledged that country-of-origin information showed that the general security situation in the southern and central parts of Iraq was still serious and that Christians was one of the more exposed groups. Furthermore, recent information suggested that professionals such as academics, judges and lawyers, doctors and other medical personnel as well as athletes had been prime targets for various extremist groups. However, the Government maintained that there was no general need of protection for all Christians or for all members of other groups in Iraq and, that, consequently, assessments of protection needs should be made on an individual basis. 23. As to the applicant’s personal risks, the Government agreed with the domestic authorities that there was no reason to question the applicant’s statements concerning his Christian background, his employment at the university or his activities on the university committee. However, they strongly questioned the veracity of some of his other allegations, as they had not been made at an early stage of the proceedings but had been added later. Thus, he had mentioned only in his appeal to the Migration Court that he had reported to the police his suspicions as to who was responsible for the attempted kidnapping of his daughter. The Government mentioned several other examples of inconsistencies which, in their view, gave reason to question the applicant’s general credibility. 24. The Government further submitted that the applicant had failed to establish a link between the various incidents invoked and between them and his university work or religious affiliation. They further pointed out that his work for the university committee had been limited and that he had not been politically active or pursued other activities that were likely to have attracted the attention of the IIP. Also, several years had passed since the applicant had left his position at the university. 25. In any event, referring to international reports on Iraq as well as information obtained from the Migration Board, the Government contended that there was an internal flight alternative for the applicant in the three northern governorates of the Kurdistan Region. Allegedly, he would be able to enter without any restrictions or sponsor requirements into this region, which had been identified as the safest and most stable in Iraq, and he would be able to settle there, with access to the same public services as other residents. As to the applicant’s personal circumstances in relation to the possibility to relocate internally, the Government stressed that he is an adult man, born in 1973, and that no information had emerged about his health or any other circumstances that indicated that he was not fit for work. Thus, he would be able to provide for himself, even in an area of Iraq where he lacked a social network. 26. The Government further asserted that the Migration Board and the courts had provided the applicant with effective guarantees against arbitrary refoulement and had made thorough assessments, adequately and sufficiently supported by national and international source materials. In the proceedings, the applicant had been given many opportunities to present his case, through interviews conducted by the Board with an interpreter present and at an oral hearing held by the Migration Court, at all stages assisted by legal counsel. Moreover, having regard to the expertise held by the migration bodies, the Government maintained that significant weight should be given to their findings. 2. The Court’s assessment
(a)  General principles
27. The Court reiterates that Contracting States have the right, as a matter of well-established international law and subject to their treaty obligations, including the Convention, to control the entry, residence and expulsion of aliens (see, for example, Abdulaziz, Cabales and Balkandali v. the United Kingdom, judgment of 28 May 1985, Series A no. 94, p. 34, § 67; Boujlifa v. France, judgment of 21 October 1997, Reports 1997‑VI, p. 2264, § 42; and Üner v. the Netherlands [GC], no. 46410/99, § 54, ECHR 2006-XII). However, the expulsion of an alien by a Contracting State may give rise to an issue under Article 3, and hence engage the responsibility of that State under the Convention, where substantial grounds have been shown for believing that the person in question, if deported, would face a real risk of being subjected to treatment contrary to Article 3 in the receiving country. In these circumstances, Article 3 implies the obligation not to deport the person in question to that country (see, among other authorities, Saadi v. Italy [GC], no. 37201/06, §§ 124-125, ECHR 2008-...). 28. The assessment of whether there are substantial grounds for believing that the applicant faces such a real risk inevitably requires that the Court assesses the conditions in the receiving country against the standards of Article 3 of the Convention (Mamatkulov and Askarov v. Turkey [GC], nos. 46827/99 and 46951/99, § 67, ECHR 2005-I). These standards imply that the ill-treatment the applicant alleges he will face if returned must attain a minimum level of severity if it is to fall within the scope of Article 3. The assessment of this is relative, depending on all the circumstances of the case (Hilal v. the United Kingdom, no. 45276/99, § 60, ECHR 2001-II). Owing to the absolute character of the right guaranteed, Article 3 of the Convention may also apply where the danger emanates from persons or groups of persons who are not public officials. However, it must be shown that the risk is real and that the authorities of the receiving State are not able to obviate the risk by providing appropriate protection (H.L.R. v. France, judgment of 29 April 1997, Reports 1997-III, § 40). 29. The assessment of the existence of a real risk must necessarily be a rigorous one (Chahal v. the United Kingdom, judgment of 15 November 1996, Reports 1996-V, § 96; and Saadi v. Italy, cited above, § 128). It is in principle for the applicant to adduce evidence capable of proving that there are substantial grounds for believing that, if the measure complained of were to be implemented, he would be exposed to a real risk of being subjected to treatment contrary to Article 3. In this respect, the Court acknowledges that, owing to the special situation in which asylum seekers often find themselves, it is frequently necessary to give them the benefit of the doubt when it comes to assessing the credibility of their statements and the documents submitted in support thereof. However, when information is presented which gives strong reasons to question the veracity of an asylum seeker’s submissions, the individual must provide a satisfactory explanation for the alleged discrepancies (see, among other authorities, Collins and Akaziebie v. Sweden (dec.), no. 23944/05, 8 March 2007; and Hakizimana v. Sweden (dec.), no. 37913/05, 27 March 2008). 30. In cases concerning the expulsion of asylum seekers, the Court does not itself examine the actual asylum applications or verify how the States honour their obligations under the Geneva Convention relating to the status of refugees. It must be satisfied, though, that the assessment made by the authorities of the Contracting State is adequate and sufficiently supported by domestic materials as well as by materials originating from other reliable and objective sources such as, for instance, other contracting or non‑contracting states, agencies of the United Nations and reputable non‑governmental organisations (NA. v. the United Kingdom, no. 25904/07, § 119, 17 July 2008). (b)  The general situation in Iraq
31. The Court notes that a general situation of violence will not normally in itself entail a violation of Article 3 in the event of an expulsion (H.L.R. v. France, cited above, § 41). However, the Court has never excluded the possibility that the general situation of violence in a country of destination may be of a sufficient level of intensity as to entail that any removal to it would necessarily breach Article 3 of the Convention. Nevertheless, the Court would adopt such an approach only in the most extreme cases of general violence, where there is a real risk of ill-treatment simply by virtue of an individual being exposed to such violence on return (NA. v. the United Kingdom, cited above, § 115). 32. While the international reports on Iraq attest to a continued difficult situation, including indiscriminate and deadly attacks by violent groups, discrimination as well as heavy-handed treatment by authorities, it appears that the overall situation is slowly improving. In the case of F.H. v. Sweden (no. 32621/06, § 93, 20 January 2009), the Court, having at its disposal information material upto and including the year 2008, concluded that the general situation in Iraq was not so serious as to cause, by itself, a violation of Article 3 of the Convention in the event of a person’s return to that country. Taking into account the international and national reports available today, the Court sees no reason to alter the position taken in this respect four years ago. 33. However, the applicant did not only claim that the general situation in Iraq was too unsafe for his return, but also that his status as a member of the Christian minority, together with his position as a university professor, would put him at real risk of being subjected to treatment prohibited by Article 3. (c)  The situation of Christians in Iraq
34. In the mentioned case of F.H. v. Sweden, following its conclusion that the general situation in Iraq was not sufficient to preclude all returns to the country, the Court had occasion to examine the risks facing the applicant on account of his being Christian. It concluded then that he would not face a real risk of persecution or ill-treatment on the basis of his religious affiliation alone. In so doing, the Court had regard to the occurrence of attacks against Christians, some of them deadly, but found that they had been carried out by individuals rather than organised groups and that the applicant would be able to seek protection from the Iraqi authorities who would be willing and able to help him (§ 97 of the judgment). 35. During the subsequent four years, attacks on Christians have continued, including the attack on 31 October 2010 on the Catholic church Our Lady of Salvation in Baghdad, claiming more than 50 victims. The available evidence rather suggests that, in comparison with 2008/09, such violence has escalated. While still the great majority of civilians killed in Iraq are Muslims, a high number of attacks have been recorded in recent years which appear to have specifically targeted Christians and been conducted by organised extremist groups. As noted by the UNHCR (see M.Y.H. and Others, § 25) and others, Christians form a vulnerable minority in the southern and central parts of Iraq, either directly because of their faith or because of their perceived wealth or connections with foreign forces and countries or the practice of some of them to sell alcohol. The UK Border Agency concluded in December 2011 that the authorities in these parts of the country were generally unable to protect Christians and other religious minorities (M.Y.H. and Others, § 26). 36. The question arises whether the vulnerability of the Christian group and the risks which the individuals face on account of their faith make it impossible to return members of this group to Iraq without violating their rights under Article 3. The Court considers, however, that it need not determine this issue, as there is an internal relocation alternative available to them in the Kurdistan Region. This will be examined in the following. (d)  The possibility of relocation to the Kurdistan Region
37. The Court reiterates that Article 3 does not, as such, preclude Contracting States from placing reliance on the existence of an internal flight or relocation alternative in their assessment of an individual’s claim that a return to the country of origin would expose him or her to a real risk of being subjected to treatment proscribed by that provision. However, the Court has held that reliance on such an alternative does not affect the responsibility of the expelling Contracting State to ensure that the applicant is not, as a result of its decision to expel, exposed to treatment contrary to Article 3. Therefore, as a precondition of relying on an internal flight or relocation alternative, certain guarantees have to be in place: the person to be expelled must be able to travel to the area concerned, gain admittance and settle there, failing which an issue under Article 3 may arise, the more so if in the absence of such guarantees there is a possibility of his or her ending up in a part of the country of origin where there is a real risk of ill‑treatment (Sufi and Elmi v. the United Kingdom, nos. 8319/07 and 11449/07, § 266, 28 June 2011, with further references). 38. The three northern governorates – Dahuk, Erbil and Sulaymaniyah – forming the Kurdistan Region of Iraq, or KRI, are, according to international sources, a relatively safe area. While there have been incidents of violence and threats, the rights of Christians are generally considered to be respected. As noted by various sources, large numbers of Christians have travelled to the Kurdistan Region and found refuge there. 39. As regards the possibility of entering the KRI, some sources state that the border checks are often inconsistent, varying not only from governorate to governorate but also from checkpoint to checkpoint (see the UNHCR Guidelines and the Finnish/Swiss report, which appears to rely heavily on the UNHCR’s conclusions in this respect, M.Y.H. and Others, §§ 30 and 35 respectively). However, the difficulties faced by some at the KRI checkpoints do not seem to be relevant for Christians. This has been noted by, among others, the UNHCR. Rather, members of the Christian group are given preferential treatment as compared to others wishing to enter the Kurdistan Region. As stated by a representative of an international organisation and the head of Asaysih, the KRI general security authority, to investigators of the Danish/UK fact-finding mission, this is because Christians are at particular risk of terrorist attacks in southern and central Iraq and as the Christians are not considered to pose any terrorist threat themselves (at 4.34 and 8.19 of the report, M.Y.H. and Others, § 36). 40. Moreover, while Christians may be able to enter the three northern governorates without providing any documentation at all (see Danish/UK report, at 4.34), in any event there does not seem to be any difficulty to obtain identity documents in case old ones have been lost. As concluded by the UK Border Agency (M.Y.H. and Others, § 31) and the UK Upper Tribunal in the recent country guidance case of HM and others (M.Y.H. and Others, § 34), it is possible for an individual to obtain identity documents from a central register in Baghdad, which retains identity records on microfiche, whether he or she is applying from abroad or within Iraq. In regard to the need for a sponsor resident in the Kurdistan Region, the Upper Tribunal further concluded, in the case mentioned above, that no-one was required to have a sponsor, whether for their entry into or for their continued residence in the KRI. It appears that the UNHCR is of the same opinion as regards entry, although its statement in the Guidelines directly concerns only the requirements of a tourist (M.Y.H. and Others, § 30). The Finnish/Swiss report states that Christians may be able to nominate senior clerics as sponsors (M.Y.H. and Others, § 35); thus, they do not have to have a personal acquaintance to vouch for them. 41. Internal relocation inevitably involves certain hardship. Various sources have attested that people who relocate to the Kurdistan Region may face difficulties, for instance, in finding proper jobs and housing there, not the least if they do not speak Kurdish. Nevertheless, the evidence before the Court suggests that there are jobs available and that settlers have access to health care as well as financial and other support from the UNHCR and local authorities. In any event, there is no indication that the general living conditions in the KRI for a Christian settler would be unreasonable or in any way amount to treatment prohibited by Article 3. Nor is there a real risk of his or her ending up in the other parts of Iraq. 42. In conclusion, therefore, the Court considers that relocation to the Kurdistan Region is a viable alternative for a Christian fearing persecution or ill-treatment in other parts of Iraq. The reliance by a Contracting State on such an alternative would thus not, in general, give rise to an issue under Article 3. (e)  The particular circumstances of the applicant
43. It remains for the Court to determine whether, despite what has been stated above, the personal circumstances of the applicant would make it unreasonable for him to settle in the Kurdistan Region. In this respect, the Court first notes that the applicant’s account was examined by the Migration Board and the Migration Court, which both gave extensive reasons for their decisions that he was not in need of protection in Sweden. The applicant was able to present the arguments he wished with the assistance of legal counsel and language interpretation. 44. As regards the incidents to which the applicant was subjected in Iraq, the Court notes that they all occurred in Baghdad. He has claimed that the threats against him were personal and that the persons behind the threats would be able to reach him also in the Kurdistan Region. However, these claims have not been substantiated. In so far as the alleged risks are based on the applicant’s Christian beliefs, they are furthermore unsupported by the information on the KRI available to the Court. 45. In regard to the applicant’s status as professor at the university in Baghdad and his activities as member of its committee on research methods, the Court has further regard to the fact that he ended his employment at the university more than six years ago and that he does not appear to have been involved in any political activities. Consequently, it cannot be reasonably assumed that he would be of continued interest to the persons who previously threatened him in order for them to search for him in the Kurdistan Region. (f)  Conclusion
46. Having regard to the above, the Court concludes that, although the applicant, as Christian, belongs to a vulnerable minority and irrespective of whether he can be said to face, as a member of that group, a real risk of treatment proscribed by Article 3 of the Convention in the southern and central parts of Iraq, he may reasonably relocate to the Kurdistan Region, where he will not face such a risk. Neither the general situation in that region, including that of the Christian minority, nor any of the applicant’s personal circumstances indicate the existence of said risk. The Court reaches the same conclusion with respect to the alleged risk attached to his former employment at the university in Baghdad and his activities there. Consequently, his deportation to Iraq would not involve a violation of Article 3. II. RULE 39 OF THE RULES OF COURT
47. The Court recalls that, in accordance with Article 44 § 2 of the Convention, the present judgment will not become final until (a) the parties declare that they will not request that the case be referred to the Grand Chamber; or (b) three months after the date of the judgment, if reference of the case to the Grand Chamber has not been requested; or (c) the Panel of the Grand Chamber rejects any request to refer under Article 43 of the Convention. 48. It considers that the indication made to the Government under Rule 39 of the Rules of Court (see § 4 above) must continue in force until the present judgment becomes final or until the Court takes a further decision in this connection (see operative part).

Article of the Convention at issue: Article 3
Outcome: no_violation