ITEMID: 001-76601
LANGUAGEISOCODE: ENG
RESPONDENT: TUR
BRANCH: ADMISSIBILITY
DATE: 2006
DOCNAME: AYYILDIZ AND OTHERS v. TURKEY
IMPORTANCE: 4
CONCLUSION: Inadmissible
TEXT: The applicants, Mr Necmettin Ayyıldız, Mr İsmail Yakut and Mr Abdullah Şeker, are Turkish nationals, who were born in 1928, 1927 and 1926 respectively and live in Diyarbakır. They are represented before the Court by Mr M. S. Tanrıkulu, a lawyer practising in Diyarbakır.
On 23 May 2000, the applicant Mr Ayyıldız died and on 4 May 2005, his heirs expressed interest in continuing his present applicant.
The facts of the case, as submitted by the parties, may be summarised as follows.
On 24 July 1999 an armed clash took place between the security forces and PKK militants in the applicants’ village of Narlıca, in district of Kulp, Diyarbakır. During the clash, some of the applicants’ property was destroyed. In particular, Necmettin Ayyıldız’s vineyards of 3 dönüm (2,760 m2) and fruit trees, İsmail Yakut’s home, dairy barn and livestock, Abdullah Şeker’s dairy barn and livestock were damaged as a result of a fire that broke out. The village guards did not allow the applicants to save their livestock during the fire.
On 25 July 1999 three gendarme officers drew up a scene of incident report. According to the report, a fire started as a result of the clash which then spread to the barns of İsmail Yakut and Abdullah Şeker. The report further stated that a number of livestock belonging to these applicants were killed because of the fire.
On 26 July 1999 officers from the Kulp Gendarme Command took statements from İsmail Yakut and Abdullah Şeker. Their statements confirmed the scene of the incident report of 25 July 1999.
Abdullah Şeker and İsmail Yakut lodged petitions with the Kulp County Governor’s Office on 2 August and 3 August 1999 respectively. They requested the authorities to establish their damage but they received no response to their petitions.
Abdullah Şeker and İsmail Yakut brought declaratory actions before the Kulp Civil Court on 9 August and 11 August 1999 respectively. They requested the court to assess the damage they had sustained.
On 12 August 1999 the Kulp Civil Court decided not to hold an on-site visit in Narlıca as it had been informed by the district gendarme command that the area was not safe and that there was not sufficient staff or equipment to provide security for the visit.
On 13 August 1999 Necmettin Ayyıldız brought a declaratory action before the Kulp Magistrates’ Court (Sulh Hukuk Mahkemesi) for an assessment of the damage he had suffered.
On 16 August 1999 the court decided not to hold an inspection citing the same reasoning as the Kulp Civil Court.
The investigation carried out by the authorities indicated that subsequent to their requests for compensation, Mr Şeker and Mr Yakut had received 350,000,000 Turkish liras (TL) and 400,000,000 TL respectively. The investigation further revealed that Mr Ayyıldız had not suffered any loss or damage upon the incidents.
The Government also pointed to the Law on Compensation for Losses resulting from Terrorism and the Fight against Terrorism that was passed by the Grand National Assembly on 14 July 2004 and entered into force on 27 July 2004 (“Compensation Law”). The Compensation Law provided for a sufficient remedy capable of redressing the Convention grievances of persons who suffered damages resulting from the fight against terrorism in the region.
In that connection, “Damage Assessment and Compensation Commissions” were set up in seventy-six provinces. Persons who had suffered damage as a result of terrorism or of measures taken by the authorities to combat terrorism could lodge an application with the relevant compensation commission claiming compensation.
The number of persons applying to these commissions had already attained approximately 170,000. A further 800 persons, whose applications were pending before the Court, had also applied to the compensation commissions. Many villagers had already been awarded compensation for the damage they had sustained.
A description of the relevant domestic law can be found in the Court’s decision of İçyer v. Turkey (no. 18888/02, §§ 44-54, 12 January 2006) and in its judgment of Doğan and Others v. Turkey (nos. 88038811/02, 8813/02 and 8815-8819/02, §§ 31-35, ECHR 2004-VI)


ITEMID: 001-96455
LANGUAGEISOCODE: ENG
RESPONDENT: POL
BRANCH: CHAMBER
DATE: 2010
DOCNAME: CASE OF JAREMOWICZ v. POLAND
IMPORTANCE: 2
CONCLUSION: Preliminary objection joined to merits and dismissed (victim);Violation of Art. 12;Violation of Art. 13;Non-pecuniary damage - award
JUDGES: Giovanni Bonello;Lech Garlicki;Ledi Bianku;Nebojša Vučinić;Nicolas Bratza;Päivi Hirvelä
TEXT: 7. The applicant was born in 1973 and lives in Głogów. He is detained in Wołów Prison.
8. The facts of the case, as submitted by the applicant, may be summarised as follows.
9. Throughout 2003 the applicant was serving a sentence of imprisonment in Wrocław Prison No. 1, following his conviction for attempted burglary by the Głogów District Court on 13 February 2001. He completed the sentence on 15 January 2004 and, on an unknown later date, was transferred to Wołów Prison.
10. On 9 June 2003 the applicant asked the Governor of Wrocław Prison No. 1 for leave to have visits from a certain M.H. in prison. M.H. had been detained in the same prison from 10 July to 17 December 2002. At the relevant time, she was detained in another Wrocław Prison (at Kurkowa Street). The request was refused.
11. On 16 June 2003 the applicant asked the Wrocław Regional Court – the Penitentiary Division (Sąd Okręgowy – Wydział Penitencjarny) for leave to marry M.H in prison.
On 20 June 2003 M.H. made a similar request to the Penitentiary Division of the same court, asking for leave for her and the applicant to marry in prison.
Their requests were referred to the Governor of Wrocław Prison No. 1.
12. On 18 July 2003 the Governor refused both requests. The refusals were phrased in an identical way. The replies read, in so far as relevant, as follows:
“Replying to your request of 16 June 2003, which was referred to me by the Penitentiary Division of the Wrocław Regional Court, I hereby inform you that I refuse to give you leave to marry M.H. on the prison premises. The question of your having visits from M.H. was already decided negatively earlier (on 10 June 2003), in connection with your request of 9 June 2003. I now maintain that earlier standpoint taken by the Governor ... .
Analysing your family situation one can see that M.H. is not a member of your family or a “close person” (osoba bliska) within the meaning of Article 102 § 2 of the [Code of Execution of Criminal Sentences]. Neither you nor M.H. are able to substantiate your relationship in the period prior to her stay in [this prison] in connection with her pre-trial detention from 10 July 2002 to 17 December 2002.
In view of the foregoing, I refuse your request.”
13. On 23 July 2003 the applicant unsuccessfully appealed to the Wrocław Regional Court against the refusal.
14. The applicant also complained to, and sought assistance from, the Ombudsman (Rzecznik Praw Obywatelskich).
On 21 July 2003 the Ombudsman informed the Governor of Wrocław Prison of the applicant’s complaint and asked him to consider the possibility of granting him visits from his fiancée who was apparently his only close person, especially given their intention to get married and the fact that the applicant had volunteered for participation in a therapeutic rehabilitation programme based on deepening contact with close persons.
On 1 August 2003 the Governor informed the Ombudsman that the principal ground for refusal to grant the applicant visits from M.H. and leave to marry her in prison was the fact that they could not prove that they had had a relationship before her detention in the same prison which “made his attempts to obtain the leave ‘premature’.”
On 13 August 2003 the Ombudsman wrote back to the Governor, stating that he had reservations about the grounds for the refusal of leave to marry and asking him to conduct an enquiry into the applicant’s allegations and to reconsider the possibility of granting him visits from M.H.
15. On 9 September 2003 the prison authorities prepared a report on the enquiry which was later transmitted to the Ombudsman. The report read, in so far as relevant, read as follows
“Undoubtedly, [the applicant] became illegally acquainted with M.H. during her detention on remand in this establishment (from 10 July to 17 December 2002). In his complaint, [the applicant] states that ‘I [had] got to know a girl who stayed in this remand centre more than a year ago’. It is difficult to call “fiancées” persons who get to know each other in this manner (kites, writing on their hands – often without seeing each other).
This contact, which was made in prison (certainly illegally) and which by the nature of things is very superficial, is not a worthy contact from the point of view of the applicant’s rehabilitation. For that reason, the applicant’s requests [for leave to marry M.H. in prison] had received negative opinions from his supervising officer [wychowawca].”
16. On 25 September 2003 the Ombudsman replied to the applicant’s complaint. The letter reads, in so far as relevant, as follows:
“I would like to inform you that, as unequivocally emerges from the findings relating to your wish to get married to M.H. in prison, your relationship with Ms M[...] H [...] developed in an illegal manner during her detention on remand in the prison in which you remain. It was precisely your illegal relationship maintained by means of, among other things, sending kites (za pomocą grypsów) in prison which, in the opinion of the prison administration, was decisive [for considering] your union unworthy from the point of view of your social rehabilitation.
At the same time, I would like to add that, as emerges from the information I have received, this matter is at present being examined by the Wrocław Regional Court, from which you should get a reply.
In view of the foregoing, acting upon the Ombudsman’s authorisation, I consider the matter as clarified in its entirety and I do not see any indication of your rights having been infringed by the [prison] administration.”
17. Meanwhile, on 24 September 2003 the applicant had complained to the Minister of Justice about the refusal to give him leave to contract a marriage in prison. The complaint was referred to the Wrocław Regional Director of the Prison Service (Dyrektor Okręgowy Służby Więziennej) who, on 17 October 2003, addressed the matter as follows:
“In reply to your complaint of 24/09/2003 addressed to the Ministry of Justice and concerning the decision of the Governor of Wrocław Prison No. 1 refusing to grant you leave to contract a marriage on the prison premises, I would like to inform you that, according to the rules on competence [in such matters], your complaints have been examined by the Wrocław Regional Inspectorate of the Prison Service (Okręgowy Inspektorat Służby Więziennej).
Following an enquiry it has been ascertained that, indeed, the administration of Wrocław Prison No. 1 did not give you leave to contract a marriage on the premises of the penitentiary establishment. You were notified of the reasons for it by, inter alia, the letter of 18 July 2003 ....
At the same time, I inform you that this decision did not infringe the applicable legal provisions. No provision obliges a governor of a penitentiary establishment to grant a detained person leave to contract a marriage in the establishment run by him.
In view of the foregoing, I do not see any grounds for upholding your complaint.”
18. On 2 October 2003 the Wrocław Regional Court-Penitentiary Divisions examined the applicant’s appeal of 23 July 2003 but did not take any decision on the matter.
19. On an unspecified date in November 2003 the Deputy Governor of the Wrocław Prison issued a certificate addressed to the Wrocław Civil Status Office (Urząd Stanu Cywilnego) confirming that the applicant had obtained leave to marry M.H. in prison.
20. The Government submitted that, according to information supplied by the Wrocław Prison’s authorities, the applicant did not marry M.H. in prison.
21. Article 102 of the Code of Execution of Criminal Sentences (Kodeks karny wykonawczy) (“the Code”) lists the rights of a convicted person. It reads, in so far as relevant, as follows:
“A convicted person has, in particular, the following rights:
...
2) to maintain relationships (więzi) with the family and other close persons;
...
10) to make applications, complaints and requests to an authority competent to deal with the subject-matter and to present them, in the absences of third parties, to the prison administration, heads of organisational units of the Prison Service, penitentiary judge, prosecutor and the Ombudsman.”
22. Detailed rules on the procedure referred to in paragraph 10 is laid down in the Minister of Justice’s Ordinance of 13 August 2003 on dealing with applications, complaints and requests by persons detained in prisons and remand centres (Rozporządzenie Ministra Sprawiedliwości w sprawie sposobów załatwiania wniosków, skarg i próśb osób osadzonych w zakładach karnych i aresztach śledczych),
23. Article 7, paragraphs 1 and 2, of the Code provides that a convicted person can challenge before a court any unlawful decision issued by a judge, a penitentiary judge, a governor of a prison or a remand centre, a regional director or the Director General of the Prison Service or a court probation officer. Applications relating to the execution of prison sentences are examined by a competent penitentiary court.
The remainder of Article 7 of the Code reads as follows:
“3. Appeals against decisions [mentioned in paragraph 1] shall be lodged within seven days of the date of the pronouncement or the service of the decision; the decision [in question] shall be pronounced or served with a reasoned opinion and an instruction as to the right, deadline and procedure for lodging an appeal. An appeal shall be lodged with the authority which issued the contested decision. If [that] authority does not consider the appeal favourably, it shall refer it, together with the case file and without undue delay, to the competent court.
4. The Court competent for examining the appeal may suspend the enforcement of the contested decision ...
5. Having examined the appeal, the court shall decide either to uphold the contested decision, or to quash or vary it; the court’s decision shall not be subject to an interlocutory appeal.”
24. Under the provisions of the Family and Custody Code (Kodeks Rodzinny i Opiekuńczy) the registrar of the relevant Civil Status Office (Kierownik Urzędu Stanu Cywilnego) may refuse to solemnise marriage only if there exists any statutory obstacle rendering the marriage null and void, such as age, legal incapacity, mental disorder, bigamy, close affinity of the parties or adoptive relationship (Articles 5, 10 11, 12, 13, 14 and 15). In case of doubt, the registrar should ask the competent court to rule on whether the marriage can be contracted (Article 5).
25. Pursuant to Article 4, a marriage before the registrar may not be concluded before 1 month after the persons concerned have made a written declaration that they have no knowledge of any statutory obstacle to the solemnisation of their marriage. At their request and for important reasons, the registrar may solemnise the marriage before the expiry of that term.
26. Article 6 of the Family and Custody Code lays down the rules for a proxy marriage. Contracting a marriage through a representative is subject to leave that can be granted by a family court in the non-contentious procedure. It depends on two principal conditions. First, the court must be satisfied that there exist “important reasons” justifying the departure from the normal procedure. Secondly, the applicant’s signature on a proxy must, on pain of being null and void, be made in the presence of a notary, who confirms its authenticity by a special declaration.
The Supreme Court’s case-law and practice of the domestic courts in respect of a proxy marriage is very scant. A few existing rulings of the Supreme Court relate to applications for leave to contract proxy marriages with Polish women made by foreign persons and date back to the 1970s.
27. The Recommendation of the Committee of Ministers to member states on the European Prison Rules (Rec(2006)2) (“the European Prison Rules”), adopted on 11 January 2006, sets out the following standards in respect of the enforcement of custodial sentences that are relevant in the context of the present case.
Rule 3 reads:
“Restrictions placed on persons deprived of their liberty shall be the minimum necessary and proportionate to the legitimate objective for which they are imposed.”
Rule 24 reads, in so far as relevant:
“1. Prisoners shall be allowed to communicate as often as possible by letter, telephone or other forms of communication with their families, other persons and representatives of outside organisations and to receive visits from these persons.
2. Communication and visits may be subject to restrictions and monitoring necessary for the requirements of continuing criminal investigations, maintenance of good order, safety and security, prevention of criminal offences and protection of victims of crime, but such restrictions, including specific restrictions ordered by a judicial authority, shall nevertheless allow an acceptable minimum of contact.
...
4. The arrangements for visits shall be such as to allow prisoners to maintain and develop family relationships in as normal a manner as possible.
Rule 70 reads, in so far as relevant:
“1. Prisoners, individually or as a group, shall have ample opportunity to make requests or complaints to the director of the prison or any other competent authority.
...
3. If the request is denied or a complaint rejected, reasons shall be provided to the prisoner and the prisoner shall have the right to appeal to an independent authority.”
VIOLATED_ARTICLES: 12
13


ITEMID: 001-85629
LANGUAGEISOCODE: ENG
RESPONDENT: GBR
BRANCH: ADMISSIBILITY
DATE: 2008
DOCNAME: SMITH v. THE UNITED KINGDOM
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: David Thór Björgvinsson;Giovanni Bonello;Lech Garlicki;Ledi Bianku;Nicolas Bratza;Stanislav Pavlovschi
TEXT: The applicant, Mr Arthur Smith, is a British national who was born in 1940 and lives in Devon. He was represented before the Court by Royds Rdw, solicitors in London. The United Kingdom Government (“the Government”) were represented by their Agent, Mr C. Whomersley of the Foreign and Commonwealth Office.
The facts of the case, as submitted by the parties, may be summarised as follows.
The applicant’s wife died on 6 September 2000. They had no children from the marriage. On 7 January 2001 the applicant applied for widows’ benefits. On 1 February 2001 he was informed that his claim had been disallowed as he was not a woman. The applicant did not appeal further as he considered or was advised that such a remedy would be bound to fail since no such social security benefit was payable to widowers under United Kingdom law.
The domestic law relevant to this application is set out in Runkee and White v. the United Kingdom, no. 42949/98, §§ 40-41, 25 July 2007.


ITEMID: 001-108994
LANGUAGEISOCODE: ENG
RESPONDENT: BIH
BRANCH: CHAMBER
DATE: 2012
DOCNAME: CASE OF AL HAMDANI v. BOSNIA AND HERZEGOVINA
IMPORTANCE: 4
CONCLUSION: Violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention);No violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention)
JUDGES: Lech Garlicki;Ledi Bianku;Nebojša Vučinić;Päivi Hirvelä;Vincent A. De Gaetano;Zdravka Kalaydjieva
TEXT: 6. It would appear from the case file that the salient fact in the domestic proceedings was the applicant’s association with the mujahedin in Bosnia and Herzegovina (“BH”). The term mujahedin has been widely used to refer to foreigners – mainly from the Arab world – who came to BH during the war in support of Bosnian Muslims. However, the same term has been used to describe local Muslims who joined the foreign mujahedin, endorsed their ideology and adjusted to their way of dressing. The phenomenon has been explained by the International Criminal Tribunal for the former Yugoslavia (“ICTY”) in Hadžihasanović and Kubura, IT-01-47-T, §§ 41118, 15 March 2006, and Delić, IT-04-83-T, §§ 166-199, 15 September 2008, as follows.
7. The first foreign mujahedin arrived in BH in the summer of 1992 via Croatia and with the assistance of the Croatian authorities. It would appear that their arrival was welcomed by the BH authorities. While the presence of at least some foreign mujahedin seems to have been motivated by a desire to provide humanitarian assistance to the Bosnian Muslim population, most of them actively supported the military struggle against the Bosnian Muslims’ adversaries, ready to conduct a jihad or “holy war”. As stated by Ali Hamad, an ICTY witness of Bahraini origin who came to BH in 1992, some of the mujahedin were members of al-Qaeda who had the aim of “creating a base that would allow them to increase their area of operations”. Some of them also came to perform missionary work.
8. Upon arrival, foreign mujahedin settled in various locations and did not form a homogeneous entity. Towards the end of 1992, Bosnian Muslims started to join the foreign mujahedin. The locals were provided with military training and participated in combat action. They were also given religious instruction. A number of groups comprising foreign and/or local mujahedin were active. Notwithstanding instances of participation in combat alongside each other, it appears that these groups were anxious to maintain their distinct identities. There were religious and ideological differences between them, which resulted in occasional violent clashes.
9. On 13 August 1993 the foreign mujahedin were organised into a unit within the local ARBH (Army of the Republic of Bosnia and Herzegovina) forces. The unit, named “El Mujahedin”, was based in Zenica. Following its establishment, the unit significantly grew in size. By 1995, it consisted of around 1,000 fighters. Although the original idea had been to replenish the unit with foreign mujahedin only, locals soon outnumbered its foreign members. The factors that motivated locals to join it included: its stricter regimental discipline; a better degree of organisation; superior equipment and combat morale; its religious dedication; and material benefits. The unit received funds and assistance from many organisations and individuals from the Islamic world, including the Al-Haramain Islamic Foundation and the Benevolence International Foundation. The Islamic Cultural Institute in Milan provided logistical support.
10. El Mujahedin had a number of features setting it apart from regular ARBH units. It was led by foreign mujahedin who were not appointed by the ARBH. At the top of the hierarchy was an emir, who has been described as the highest-ranking person within the unit. Abu Haris, a Libyan, was its first emir. In December 1993, he was succeeded by an Algerian, Abu Maali, who remained in that position until the end of the war. A different person from the emir, the military commander, headed the military council and was responsible for the conduct of combat operations. In 1993, this post was held by an Egyptian named Vahidin or Wahiuddin. After his death in October 1993, another Egyptian, Muatez, succeeded him. Muatez was killed in September 1995. The unit had a religious council, the shura, which was its supreme decision-making body. It consisted of approximately twenty prominent members of the unit, mostly of Arab origin. The emir was elected by and answerable to the shura. At the end of 1994, Sheikh Shaban joined the leadership of the unit. He was the head of the Islamic Cultural Institute in Milan and known to be an extremist who was well-connected with Islamic fundamentalists all over the world (the ICTY relied in that regard on a judgment of the Milan Criminal Court of 1 January 2006). He facilitated the recruitment of volunteers from Arab countries for the struggle in BH. Although Sheikh Shaban did not hold an official function within the unit, its members considered him to be the political authority and even the real emir within the unit. He could issue binding rulings (fatwa) and his authority was never challenged by the shura. Sheikh Shaban was killed, together with Abu Haris, at an HVO (Croatian Defence Council) military checkpoint on 14 December 1995.
11. The General Framework Agreement for Peace, which ended the war in BH, was initialled at a military base near Dayton, the United States, on 21 November 1995 and signed in Paris, France, on 14 December 1995. Article III of Annex 1A to that Agreement called for the withdrawal of all foreign forces, including individual advisors, freedom fighters, trainers, volunteers, and personnel from neighbouring and other States, irrespective of whether they were legally and militarily subordinated to any of the local forces. In view of that, on 14 December 1995 the ARBH disbanded El Mujahedin and ordered its foreign members to leave the country by 10 January 1996. Despite initial resistance, the shura accepted that the unit be disbanded. It would appear that awards, such as the “Golden Lily”, were given to its members as an incentive for foreigners to leave. Members of the unit were also provided with ARBH certificates of service, which assisted its foreign members to acquire BH citizenship. Whereas most of the unit’s foreign members left BH, some of them (such as the present applicant) applied for BH citizenship and continue to live in BH to date.
12. After the attacks of 11 September 2001, the official attitude towards foreign mujahedin changed dramatically. Many lost their BH citizenship or were deported from BH after being declared a threat to national security.
13. The applicant was born in Iraq in 1960.
14. He went to Bosnia and Herzegovina to pursue his studies in 1979. He first studied in Sarajevo and in 1983 moved to Zenica. In 1987 the applicant married a citizen of Bosnia and Herzegovina. They have five children together.
15. During the 1992-95 war in Bosnia and Herzegovina, the applicant joined El Mujahedin unit mentioned above.
16. The applicant acquired citizenship of Bosnia and Herzegovina (“BH citizenship”) on three occasions: on 23 March 1992, on 12 January 1995 (under the name of Awad Fadhil) and again on 20 February 1995. He has visited Iraq twice since the 1992-95 war, in 2003 and 2004. The applicant possesses an Iraqi passport, issued by the Iraqi Embassy in Vienna on 23 January 2007, which was valid until 22 January 2011.
17. On 30 August 2006 the competent administrative authorities established that the applicant’s BH citizenship had been acquired by means of fraudulent conduct, false information and concealment of some relevant facts (notably, the fact that he already possessed BH citizenship when he lodged the second application for naturalisation and that he had used documents issued in two different names) and quashed the decisions of 23 March 1992 and 20 February 1995. On 12 January 2007 the Court of Bosnia and Herzegovina (“the State Court”) quashed the part of the decision of 30 August 2006 concerning the decision of 20 February 1995 and remitted the case for retrial.
18. Meanwhile, on 6 June 2007 the applicant filed a request for a temporary residence permit. On 28 September 2007 the Aliens Service suspended those proceedings pending the final resolution of the applicant’s citizenship status.
19. On 27 November 2008 the competent administrative authorities quashed the decision of 20 February 1995 again. On 3 December 2009 the State Court upheld that decision. On 1 February 2010 the applicant appealed to the Constitutional Court of Bosnia and Herzegovina (“the Constitutional Court”). It appears that those proceedings are still pending. This does not, however, prevent the applicant’s potential deportation, as he became an unlawful resident from the moment of the notification of the decision of 27 November 2008. The applicant, on the other hand, claimed that he still possesses BH citizenship based on a decision of 12 January 1995 (see paragraph 16 above). That decision was, however, issued in the name of another person (Awad Fadhil) and cannot, therefore, confer any rights on the applicant, as was confirmed in the Government’s observations on the admissibility and merits of the case.
20. On 23 June 2009 the Aliens Service established that the applicant was a threat to national security and placed him in Istočno Sarajevo Immigration Centre. It relied on secret intelligence reports. On 30 June 2009 the State Court, having assessed the secret evidence, upheld that decision. On 17 September 2009 the Constitutional Court dismissed the applicant’s appeal as manifestly ill-founded. The initial detention period had been extended on a monthly basis until April 2011 when the applicant was released (see paragraph 26 below).
21. After the decision revoking the applicant’s citizenship of 27 November 2008 had become final, the proceedings before the Aliens Service concerning a request for a temporary residence permit were resumed at the applicant’s request (see paragraph 18 above). On 8 January 2010 the Aliens Service refused his request and granted him a period for voluntary departure of fifteen days. On 2 March 2010 the Ministry of Security upheld that decision. On 1 June 2010 the State Court upheld the decision of 2 March 2010. On 21 April 2011 the applicant appealed to the Constitutional Court. It would appear that those proceedings are still pending.
22. On 17 February 2010 the applicant claimed asylum. He maintained that Iraqi citizens who had joined the foreign mujahedin during the war in Bosnia and Herzegovina were treated in Iraq as suspected terrorists and were subjected to ill-treatment. He added that his friend had informed him that his name was on a “black list” and that his family was subjected to threats and ill-treatment due to their affiliation with the Ba’ath Party. The applicant also claimed that he would be persecuted by Shia Muslims and Kurds upon his return to Iraq (Kirkuk) because he is a Sunni Muslim.
23. On 23 February 2010 the Asylum Service interviewed the applicant in the presence of his lawyer and a UNHCR representative. It also had regard to reports of the US Department of State, the UNHCR, the International Organization for Migration and the UK Border Agency on Iraq. At the interview the applicant stated that he has visited Iraq twice since the change of regime, in 2003 and 2004. During both visits he stayed with his family in Kirkuk. In 2003 he went to visit his sick father and stayed for one and a half months. He took care of his father and accompanied him to the hospital on several occasions. In 2004 the applicant went to Kirkuk to hold a commemoration for his father and remained there for the whole month of Ramadan and the Bayram holiday. However, he claimed that during these visits he had been forced to hide in fear of the Kurdish authorities as his friend had told him that he was under surveillance and that his name was on a “black list”. The applicant further claimed that in his subsequent contact with his family, after he had returned to Bosnia and Herzegovina, they had told him that the Kurds had searched their home looking for him. On 4 March 2010 the Asylum Service refused the asylum claim and granted him a period for voluntary departure of fifteen days. The Asylum Service held that the applicant’s statements were contradictory and that he had not provided any evidence in support of his claims.
24. On 26 May 2010 the State Court quashed that decision and remitted the case for a retrial stating that the Asylum Service should make a more thorough assessment of the applicant’s claim. On 21 June 2010 the Asylum Service refused the applicant’s request for asylum and granted him a period for voluntary departure of fifteen days. On 22 September 2010 the Court of Bosnia and Herzegovina upheld that decision. On 19 November 2010 the applicant appealed to the Constitutional Court against that decision. On 9 February 2011 the Constitutional Court dismissed the applicant’s appeal as manifestly ill-founded. It held that, although the general situation in Iraq was insecure and problematic, the applicant had not proved that there was a real risk of treatment contrary to Article 3 of the Convention on account of his personal circumstances.
25. On 8 November 2010 the Aliens Service issued a deportation order accompanied with an entry ban for a period of five years. It stated, however, that removal directions would not be issued for as long as the Court’s interim measure was in force. On 3 December 2010 the Ministry of Security upheld that decision. On 16 March 2011 the State Court also upheld the deportation order. An appeal is pending before the Constitutional Court.
26. On 5 April 2011 the State Court ordered the applicant’s immediate release from the immigration centre, quashing the last extension order (of 21 March 2011) as unlawful. It held that the relevant authorities had not provided any new evidence as a basis for the applicant’s continued detention. Furthermore, it prescribed the lesser measure of surveillance limiting the applicant’s freedom of movement to his home address in Zenica with the obligation to report daily to the Aliens Service field office in Zenica. It also ordered the confiscation of the applicant’s Iraqi passport and other personal documents he might use in an attempt to leave the country. The applicant was released from detention on 7 April 2011.
27. The Secret Data Act 2005 (Zakon o zaštiti tajnih podataka, Official Gazette of Bosnia and Herzegovina nos. 54/05 and 12/09) entered into force on 17 August 2005. Section 5 of that Act provides that the judges of the State Court and the Constitutional Court have access to all levels of secret data without any formalities (such as security clearance or special authorisation), if such access is required for exercising their duties.
28. The Aliens Act 2008 (Zakon o kretanju i boravku stranaca i azilu, Official Gazette of Bosnia and Herzegovina no. 36/08) entered into force on 14 May 2008. Section 105 thereof provides that a refugee is an alien who, owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, political opinion or membership of a particular social group, is outside his or her country of nationality and is unable or, owing to such fear, is unwilling to avail himself or herself of the protection of that country, or a stateless person, who, being outside the country of former habitual residence, is unable or, owing to such fear, is unwilling to return to it. The same provision defines a person eligible for subsidiary protection as an alien who does not qualify as a refugee but in respect of whom substantial grounds have been shown for believing that he or she would face a real risk of the death penalty or execution, torture or inhuman or degrading treatment or punishment in the country of origin or in the country of habitual residence, or there is a serious, individual threat to a civilian’s life or person by reason of indiscriminate violence in situations of international or internal armed conflict, and who is unable, or, owing to fear, is unwilling to avail himself or herself of the protection of that country.
The principle of non-refoulement is incorporated in section 91 of the Act, which reads as follows:
“An alien shall not be returned or expelled in any manner whatsoever to the frontiers of territories where his or her life or freedom would be threatened on account of race, religion, nationality, membership of a particular social group or political opinion, regardless of whether or not the person concerned has been granted international protection. The prohibition of return or expulsion (non-refoulement) shall also apply to persons in respect of whom there is a reasonable suspicion for believing that they would be in danger of being subjected to torture or other inhuman or degrading treatment or punishment. An alien may not be returned or expelled to a country where he or she is not protected from being sent to such a territory either.”
Pursuant to section 118 of the Act, an alien whose claim for international protection has been refused will nevertheless be granted leave to remain on humanitarian grounds, if his or her removal would breach the principle of non-refoulement. However, the alien concerned must be placed in detention if it has been established that he or she constitutes a threat to public order or national security.
29. Under section 88(1)(h) of the Aliens Act 2008 the deportation of an alien can be ordered if it has been established that he or she constitutes a threat to public order or national security. An appeal against a deportation order suspends deportation (section 87 of that Act). A claim for international protection and an application for judicial review against a refusal of such a claim equally suspend deportation (sections 92, 109(9) and 117 of that Act). Pursuant to section 93 of that Act, once an alien has become expellable, removal directions are issued within seven days. An appeal against removal directions does not suspend deportation.
30. In accordance with section 99(2)(b) of the 2008 Act, an alien must be detained if it has been established that he or she constitutes a threat to public order or national security, irrespective of whether a deportation order has been issued. Once a deportation order has been issued, the alien concerned may also be detained under section 99(1)(a) of that Act. An initial detention order is valid for 30 days (section 100(3) of that Act). It may be extended any number of times for up to 30 days at a time. However, the total period of detention may only exceed 180 days in exceptional circumstances, such as if an alien prevents his or her removal or if it is impossible to remove an alien within 180 days for other reasons (see section 102 of that Act).
31. The General Framework Agreement for Peace, which put an end to the 1992-95 war in Bosnia and Herzegovina, was initialled at a military base near Dayton, the United States, on 21 November 1995 and signed in Paris, France, on 14 December 1995. It entered into force on the latter date.
32. Pursuant to Article III of Annex 1A to that Agreement, all foreign forces, including individual advisors, freedom fighters, trainers, volunteers, and personnel from neighbouring and other States, irrespective of whether they were legally and militarily subordinated to any of the local forces, had to be withdrawn from Bosnia and Herzegovina by 13 January 1996.
33. The relevant part of the 2010 Human Rights Report on Iraq, published by the Human Rights Office of the United Nations Assistance Mission in Iraq (UNAMI), reads as follows:
“The human rights situation in Iraq remains fragile as the country continues to emerge from years of dictatorship, warfare and violence. While the government continues to take some measures aimed at improving the protection and provision of human rights and its citizens, given the challenges that the country faces, progress is slow. Iraq continues to transition from a conflict to post-conflict country which faces enormous development challenges that the Government and people of Iraq must now address. Widespread poverty, economic stagnation, lack of opportunities, environmental degradation and an absence of basic services constitute “silent” human rights violations that affect large sectors of the population. Other factors that affected the human rights environment in 2010 included the inconclusive results of the general elections leading to a long process of government formation that was not concluded until December 2010. It is believed that this fuelled instability, but also led to a degree of inactivity in relation to implementing reforms and other measures aimed at ensuring the respect, protection and provision of human rights to the Iraqi population. Also affecting security was the withdrawal of all USF-I combat troops during the year which was completed in August 2010.
...
Armed violence continued to impact negatively on civilians and civilian infrastructure. Civilians were subjected to arbitrary loss of life and injury, but also limiting access to, and enjoyment of, other basic rights, including, but not limited to, the right to access basic humanitarian services, and the right of assembly, freedom of expression, freedom of religion, etc. It also negatively impacted on economic development. Arbitrary or deliberate targeting of civilians also constitutes serious violations of applicable rules of human rights law and international humanitarian law. The number of civilians who died from armed violence in 2010 range from 2,953 killed and 14,398 wounded according to UNAMI to 3,254 dead and 13,788 wounded according to figures provided by the Ministry of Human Rights (MoHR) of the Government of Iraq.
...
Minorities suffered from various attacks throughout Iraq during 2010. In particular Christians, Yezidi and Shabaks, among other minorities, continued to be directly targeted during the year – resulting in some displacement of members of minority groups within the country and internationally, particularly of Christians.”
34. The United Nations and the International Organisation for Migration (IOM) have stated that, although they “do not necessarily encourage return at this time because of security concerns, both are committed to providing assistance to those who do decide to return” (IOM, Assessment of Iraqi Return, August 2008). Moreover, the Iraqi Government have initiated a financial incentive and subsidy programme for returnee families and they are working to develop their capacity to register and assist the increasing number of returnees (IOM, cited above). The IOM has further noted that the rate of displacement in Iraq has slowed and that the rate of return has accelerated, mostly to Baghdad (IOM, Review of Displacement and Return in Iraq, February 2011). According to the IOM, general insecurity is the primary reason preventing Iraqis from returning home.
35. According to a report of 18 December 2006 by the United Nations High Commissioner for Refugees (UNHCR Return Advisory and Position on International Protection Needs of Iraqis Outside Iraq), no forcible return of Iraqis from Southern or Central Iraq should take place until there was a substantial improvement in the security and human rights situation in the country.
36. In a follow-up report of August 2007 (UNHCR’s Eligibility Guidelines for Assessing the International Protection Needs of Iraqi Asylum-Seekers), the UNHCR encouraged the adoption of a prima facie approach for Iraqi asylum-seekers from Central and Southern Iraq and stated that they should be considered as refugees based on the 1951 Convention relating to the Status of Refugees in signatory countries. In its more recent Eligibility Guidelines of April 2009, the UNHCR observed that in view of the serious human rights violations and ongoing security incidents which were continuing in the country, most predominantly in the five Central Governorates of Bagdad, Diyla, Kirkuk, Ninewa and Salah-Al-Din, the UNHCR continued to consider all Iraqi asylum seekers from these five Central Governorates to be in need of international protection and stated that, in signatory countries, they should be considered as refugees based on the 1951 Convention criteria (see paragraph 12 of the Guidelines). The Guidelines observed inter alia:
“27. In the context of the Central Governorates of Baghdad, Diyala, Kirkuk, Ninewa and Salah Al-Din where, even though the security situation has improved in parts, there is still a prevalence of instability, violence and human rights violations by various actors, and the overall situation is such that there is a likelihood of serious harm. Armed groups remain lethal, and suicide attacks and car bombs directed against the MNF-I/ISF [Multinational Forces in Iraq/Iraqi Security Forces], Awakening Movements and civilians, in addition to targeted assassinations and kidnappings, continue to occur on a regular basis, claiming the lives of civilians and causing new displacement. These methods of violence are usually targeted at chosen areas where civilians of specific religious or ethnic groups gather, including places of worship, market places, bus stations, and neighbourhoods. Violence appears often to be politically motivated and linked to ongoing struggles over territory and power among various actors. As clarified above, even where an individual may not have personally experienced threats or risks of harm, events surrounding his or her areas of residence or relating to others, may nonetheless give rise to a well-founded fear. There is also more specific targeting of individuals by extremist elements of one religious or political group against specific individuals of another, through kidnappings and execution-style killings.”
As regards Kirkuk, the Guidelines included the following observations (footnotes omitted):
“202. Most violence in the Governorate is linked to the yet unresolved administrative status of Kirkuk and related power struggles between the various Arab, Kurdish and Turkmen actors. Security conditions in Kirkuk Governorate, and in particular in Kirkuk City, tend to worsen during political events related to the status of Kirkuk as armed groups aim at influencing political decisions. For example, during intense negotiations over a provincial elections law in summer 2008, a suicide attack on demonstrating Kurds resulted in an outbreak of inter-communal violence, in which more than 25 people were killed and over 200 injured. Conversely, tensions and sporadic violence can complicate future status negotiations. With the postponing of provincial elections in Kirkuk, the security situation has somewhat stabilized. However, simmering inter-communal tensions are prone to erupt into new violence ahead of decisions to be taken in relation to Kirkuk’s unresolved status. Some observers note that tensions among ethnic groups over the unresolved status of Kirkuk could turn into another civil war. Insurgent groups such as AQI [Al-Qaeda in Iraq] also aim at stirring inter-communal violence by attacking proponents of ethnic/religious groups. Furthermore, it has been reported that community groups in Kirkuk are arming themselves in preparation for future clashes.
203. Kirkuk’s Arab and Turkmen communities complain of harassment, intimidation, arbitrary arrests and demographic manipulation at the hands of the Kurds, who dominate the Governorate’s political and security institutions. Kurdish law enforcement personnel and political leaders are in turn popular targets for assassination. PUK and KDP offices are also a regular target of attacks. Recently, two members of the Kurdistan Communist Party have been killed in their homes in Kirkuk. The brother of a high-ranking member of the same party was also killed. Religious and ethnic minorities often find themselves caught up in the middle of struggles for power and territory.
204. In Kirkuk Governorate, there are regular roadside bombings, shootings, and occasional car bombs and suicide attacks. On 11 December 2008, a suicide bomber killed 46 people and wounded nearly 100 when he detonated his explosive vest in a restaurant packed with government officials, women and children during lunch near Kirkuk City. There are also targeted kidnappings and assassinations, including of security officials, tribal leaders/SoI [Sons of Iraq], government officials and employees, (mostly Kurdish) party officials, members of minority groups [referring notably to two incidents of attacks against Christians], journalists and other professionals. Dead bodies continue to be found occasionally in Kirkuk Governorate.”
37. In July 2010 the UNHCR issued a Note on the Continued Applicability of the April 2009 UNHCR Eligibility Guidelines for Assessing the International Protection Needs of Iraqi Asylum-Seekers. It contained the following information on security developments (footnotes omitted):
“Under the Status-of-Forces Agreement (SOFA) of 30 June 2009, the Iraqi authorities have taken over full responsibility for the security of the country. The former Multinational Forces-Iraq/United States Forces-Iraq (former MNF-I/USF-I) have withdrawn from Iraqi cities, towns and villages and operate from their military bases at the request of the Iraqi Government. Currently, the US is drawing down all combat forces and is expected to complete this process by 31 August 2010. The Iraqi Security Forces (ISF) have almost reached their intended end strength of about 680,000 members. Since spring 2009 the Iraqi Government has been fully responsible for managing and integrating the largely Sunni Awakening Councils or Sons of Iraq (SoI) groups into the ISF and Iraqi government employment. This process is still ongoing and by April 2010, of the 94,000 SoI, some 9,000 had transitioned into the ISF and over 30,000 into other government employment.
The Iraq Body Count (IBC), a project which maintains data on civilian deaths, reported that in 2009 the annual civilian death toll was 4,644. Reports for 2010 indicate that some 2,000 Iraqis were killed and some 5,000 others were injured during the first five months of 2010. An upsurge in violence was noted since the 7 March 2010 elections and casualty statistics for the months of April and May 2010 reflect an increase in the numbers of Iraqis killed and wounded in violence. Reports show that in 2009 and early 2010, insurgents carried out several mass-casualty attacks, including on high-profile, highly guarded targets such as Iraqi government institutions, prominent hotels and foreign embassies. The assaults resulted in hundreds of civilians killed or injured in the attacks. Al-Qa’eda in Iraq claimed responsibility for the attacks against embassies in Baghdad and residential targets in mainly Shi’a districts of the capital in early April 2010. The reported incidents mostly took place in the central governorates of Baghdad, Diyala, Kirkuk, Ninewa and Salah Al-Din as well as in AlAnbar, which has seen an increase in violence since the summer of 2009. The relatively stable security situation in the Southern governorates is reportedly occasionally disrupted by mass-casualty attacks and low level violence mainly in areas close to Baghdad. The Kurdistan Region remains relatively stable, though there have been reported assaults on journalists and political opponents.
Among other security related developments worth noting is the start of the implementation of an interim joint security plan for Kirkuk and other internally disputed areas by the USF-I. The plan is based on joint action and coordination by the Iraqi Army and Police as well as the Kurdistan Regional Government (KRG) Peshmerga. Thus far, the joint security plan has resulted in the establishment of a network of checkpoints and joint patrols around major cities, and the training of security personnel. Addressing the overall issue of the status of the “disputed areas” is among the challenges that await the new Government. Crucial matters to be resolved in this area include administrative boundaries, the control of oil resources, minority rights and other matters.
Since early 2010, the ISF, with the help of the USF-I, have arrested or killed a large number of senior insurgent leaders, in particular members of Al-Qa’eda in Iraq. Ongoing attacks illustrate that the groups are still intent on, and capable of, attacks.
Reports indicate that the targeting of Government of Iraq officials, members of the Iraqi security forces, Awakening Council members and prominent citizens continue unabated. Among the frequently targeted are Shiite civilians and pilgrims as well as religious sites in different areas, religious and ethnic minority groups mainly in Ninewa and Kirkuk Governorates (Yazidis, Turkmen, Shabak and Kaka’i), and the Christian minority, mainly in Ninewa, which includes 5,000 Christians displaced from Mosul in early 2010. Compared to 2008, there has been a significant increase in the use of magnetic and adhesive bombs attached to vehicles as a weapon to assassinate particular individuals. Profiles targeted include, in particular, government officials and employees, party officials, members of the Awakening Councils or Sons of Iraq (SoI), members of the ISF (including off-duty members), religious and ethnic minorities [referring to several incidents of attacks against Christians and a suicide truck bomber in, a Shi’ite Turkmen town 20 km south of Kirkuk destroying homes and damaging another 100 homes, affecting 600 people], Sunni and Shi’ite clerics, journalists, academics, doctors, judges and lawyers, human rights activists and Iraqis working for NGOs or the USF-I and foreign companies, alcohol vendors (which are commonly Christians or Yazidis), women and LGBT individuals.
...
III. Conclusion
The situation in Iraq is still evolving. UNHCR will continue to monitor developments in the country and will update the April 2009 UNHCR Guidelines once it judges that the situation is sufficiently changed. In the interim, UNHCR advises those involved in the adjudication of international protection claims lodged by asylum-seekers from Iraq and those responsible for establishing government policy in relation to this population continue to rely on the April 2009 UNHCR Guidelines. Accordingly, the current UNHCR position on returns to Iraq also remains unchanged.”
38. The Country of Origin Information Centre (Landinfo), an independent human rights research body set up to provide the Norwegian immigration authorities with relevant information, has in a report of 28 October 2008 stated the following about the security situation in Kirkuk city (footnotes and references omitted):
“It is generally recognized that the level of violence in Kirkuk is by far lower than that in Baghdad and Mosul.
The majority of the security incidents in the city appear to be attacks against police and military. Most frequent are attacks against road patrols, and against checkpoints and personnel. These attacks both take place on the roads between Kirkuk and surrounding areas and inside the city. Occasional civilian casualties result from such attacks ... .
There are also occasional indiscriminate attacks aimed directly at civilians, such as suicide attacks at crowded places inside the city.
Additional types of targets have been recorded by Landinfo since October 2005. These targets are very diverse. There have been attacks on local Kurdish political leaders and their families, on engineers and building contractors, oil business executives, private security guards, gas station workers, churches, Shiite mosques, polling stations, and at a Turkmen political party office. In October 2008 an Iraqi journalist was killed.
The intensity of attacks against all target groups seems to have remained quite stable over the years. Between September 2005 and March 2006, 44 reported incidents were recorded ... . During November and December 2006, a total of 30 individuals were reported killed in violent incidents (DMHA 2006).
In March 2008, it was reported that violence had gone up since 2006, and that security remained highly unstable ... . According to the US military commander in Kirkuk, by the summer of 2008 violence had dropped by two thirds as compared to the summer of 2007 ... . Figures indicate that since August 2008, violence remains stable through October ... .
We do not have figures for the summer of 2007, nor do we know for how long period of time ‘summer’ refers to. What the sources indicate, however, is that violence went up by March 2008, then down again by summer the same year, and that it seems to have stabilized somewhat afterwards. With the reservation that we don’t have exact figures to substantiate this trend, we do see, however, that the occurrence of violence is unstable through a fairly short period of time.
The factors accounting for the security problems continue to be present for the foreseeable future. Accordingly, an unstable level of violence may be expected to continue”.
39. A Thematic Note by Landinfo on the Security Situation in Kirkuk City and the Surrounding Areas (Temanotat IRAK: Sikkerhetssituasjonen i Kirkuk by og områdene rundt), dated 16 March 2010, summarised the situation as follows:
“During the last two years, the security situation in Kirkuk has shown a decreasing level of activity on the part of armed groups, in spite of a persistent high level of political tension connected to the disputed political status of the city. Still, both Kirkuk city and Kirkuk province continue to be plagued by persistent political violence. There are no clear signs of open conflict between the Kurds, Arabs and Turkmen population groups, but widespread mutual mistrust seems to prevail along with a possibly increasing physical segregation between them. In this environment, militants continue to carry out attacks.
The armed groups operating in Kirkuk, Hawija and Tuz Khormatu are all Sunni Moslem. They appear as periodically connected to each other logistically, and to be coalescing over time.”
In Section 2 of the Note it was observed inter alia that the conflict related violence in Kirkuk had continuously decreased since 2007 and had in 2009 reached its lowest level since 2004. Nonetheless, politically motivated violence still occurred on a daily basis. There were otherwise no new patterns of acts of violence. It was still the situation that such acts were primarily targeting authorities, the army and the political milieu. However, the casualties among the civilian population were considerably higher than those of the target groups. The level of political violence appeared relatively low in view of the continuous political tensions related to the unclear political status of the city. At the same time, the political violence was directly linked to unresolved political questions. Both Kurdish regional authorities and the national central authorities claimed a right to governance in the city. There was little information available which systematically presented the situation in the province for each of the three ethnic groups – Kurds, Arabs and Turkmens. According to the newspaper Today’s Zaman of 10 February 2010, the local police was composed of 36% Kurds, 39% Arabs and 26% Turkmens. In the Kurdish areas of the city there were both Kurdish and Turkmen officers. In the Hawija district west of Kirkuk, the officers were Arabs. Even though the different groupings were reasonably well represented within public administration and education, distrust between them had frequently been reported since 2003.
40. The UK Border Agency (Home Office) Country of Origin Information Report of 30 August 2011 provided the following information (footnotes omitted):
“8.80 The UNSC [United Nations Security Council] Report July 2010, dated 29 July 2010, covering events since 14 May 2010 noted that: ‘Kirkuk has been generally stable since the previous reporting period. On 8 June [2010], shots were fired at a USF-I/United Nations convoy travelling in Kirkuk, resulting in one USF-I soldier being wounded. No UNAMI staff members were injured and the convoy immediately returned to Forward Operating Base Warrior.’
However the subsequent UNSC Report November 2010, published 26 November 2010, observed that: ‘[t]he withdrawal of the United States Forces in Iraq is likely to have a short- to medium-term effect on the security situation’.
8.81 The Danish FFM Report on Security and Human Rights in South/Central Iraq conducted February – April 2010, published 10 September 2010 citing a reliable source in Iraq stated: ‘... that Kirkuk, with its unique status, is a completely different matter. The situation is fragile and Iraqi Security Forces (ISF) and US forces have a strong presence in the area. AQIs [Al Qaeda in Iraq] and insurgent groups’ presence contribute to making the situation particularly volatile, and there are reports that AQI is using children as suicide bombers or combatants in Kirkuk.’
See also the section heading on Northern Iraq which highlighted that in February 2011 Kurdish Peshmerga troops entered Kirkuk governorate in violation of agreed security procedures in place between Kurdish and Iraqi forces.”
41. The third report of the UN Secretary-General to the UNSC, pursuant to paragraph 6 of resolution 1936 (2010), included inter alia the following observations:
“II. Summary of key political developments pertaining to Iraq
A. Political developments
...
8. In Kirkuk, Kurdish parties holding the two most senior political posts, Governor and Chairman of the Provincial Council, agreed to give up the latter, as a gesture of goodwill in order to move the political process forward and to accommodate a long-standing demand by Turkmen and Arab components. Hassan Turan (Turkmen) was elected to the post of Chairman, Najmaldin O. Karim (Kurdish) was appointed as the new Governor and Rakan Sa’id al-Jubouri (Arab) remained Deputy Governor.
9. On 31 March, Kurdish Peshmerga troops that had been deployed around the city of Kirkuk since 25 February 2011 withdrew and returned to the Kurdistan region. The incident served as a reminder of the challenges that remain as the United States Forces in Iraq draw down and the combined security mechanism comes to an end. The combined security mechanism was established to encourage Iraqi security forces and Kurdish Peshmerga troops to coordinate their operations, set up joint patrols and checkpoints and exchange information under the auspices of the United States Forces. The Government of Iraq and the Kurdistan Regional Government have yet to agree on the future of the combined security mechanism or any successor arrangements that could be put into place after the departure of the United States Forces.
10. The United States Forces in Iraq have continued their planned withdrawal from the country with the intention of completing their departure by 31 December 2011, as envisaged under the status-of-forces agreement signed between the Governments of Iraq and the United States of America. Discussions have been ongoing regarding the possibility of some United States forces remaining beyond 2011 to provide training and support. The Prime Minister has stated that the issue would be decided on a consensus basis through dialogue among the political blocs, as formal agreement would require approval by the Council of Representatives.
...
III. Activities of the United Nations Assistance Mission for Iraq
A. Political activities
21. The standing consultative mechanism met several times during the reporting period. This initiative, which was launched in March 2011 under the auspices of UNAMI, brings together representatives of key political blocs to discuss outstanding issues related to disputed internal territories, including Kirkuk. The participants include representatives of the three main political blocs: Deputy Prime Minister Rowsch Shaways (Kurdistan Alliance), Member of Parliament Hassan al-Sunaid (National Alliance) and Finance Minister Rafi al-Issawi (Iraqiya). The participants agreed to focus on the following issues: (a) Kirkuk, including powersharing issues and conducting provincial council elections; (b) Ninewa, the current political stalemate, power-sharing and security issues; (c) the future of the combined security mechanism; and (d) the census. On 25 April, participants agreed that subsequent meetings would be expanded to include local stakeholders from the Kirkuk and Ninewa governorates. On 16 June, a meeting was held that brought together for the first time all members of the Council of Representatives from Kirkuk in order to discuss issues related to power-sharing and the prospects of holding provincial council elections in Kirkuk.
...
E. Human rights activities
41. The reporting period witnessed a significant rise in assassinations of political leaders, government officials and security personnel. ... Assassination attempts were carried out against a Turkmen Member of Parliament from Kirkuk ... on 12 ... May ....
42. Honour crimes committed against women are a continuing source of concern. UNAMI recorded the deaths in suspicious circumstances of nine women between April and May in Kirkuk. Police informed UNAMI that three of the deaths were listed as suicides and four as murders carried out by unknown persons, while the causes of death of the other two women were unconfirmed but regarded as suspicious. ...
43. There continue to be sporadic reports of children experiencing acts of indiscriminate violence and abductions. ... On 2 April, in Kirkuk, criminal gangs abducted a 6-year-old girl who was later released after a ransom was paid. On 21 April, a 12-year-old boy was abducted in Kirkuk; his fate remains unknown.
44. During the reporting period, a number of public demonstrations were held, most of them peaceful. ...
F. Security, operational and logistical issues
50. During the reporting period, the United Nations continued to operate in a challenging security environment. On 5 May, a car bomb targeted the Iraqi police headquarters in Hilla, killing 30 policemen. In another incident on 19 May, a complex attack on the Kirkuk Provincial Joint Coordination Centre left 20 people dead and 80 injured, including Iraqi police and civil defence members. This particular attack is believed to have been in response to the recent successful efforts by Iraqi security forces to locate weapons caches and key personnel wanted for terrorist attacks. ...
52. During the reporting period, UNAMI has been working on the transition of security support from the United States Forces to the Iraqi security forces. On 24 April, the Iraqi National Security Council requested that the Office of the High Commander of the Armed Forces, in coordination with the Ministry of Defence and the Ministry of the Interior, support UNAMI protection requirements.
53. During the reporting period, UNAMI also took steps to put in place the necessary logistical arrangements to substitute the support of the United States Forces. UNAMI is also continuing preparations to ensure that it is able to sustain its presence in Kirkuk and Basra.
54. With support from the United Nations standing police capacity, a start-up team of four UNAMI police liaison personnel have been deployed to Baghdad, Erbil and Kirkuk to engage and coordinate UNAMI operations with the Ministry of the Interior and Iraqi police.
...
IV. Observations
...
60. Although the status of Kirkuk and other disputed internal territories remain divisive issues, I am encouraged by recent efforts by key Iraqi stakeholders to find common ground. Through the standing consultative mechanism under UNAMI auspices, political leaders, members of parliament and local representatives of Kirkuk have engaged in a dialogue on critical issues that will affect the future of Kirkuk and other disputed areas, including future security arrangements. I encourage the Government of Iraq and the Kurdistan Regional Government to continue to use this important forum to find mutually acceptable solutions that ultimately serve the interests of national reconciliation and long-term stability. The United Nations stands ready to assist in this process upon the request of the Government.”
VIOLATED_ARTICLES: 5
VIOLATED_PARAGRAPHS: 5-1
NON_VIOLATED_ARTICLES: 5
NON_VIOLATED_PARAGRAPHS: 5-1