Last Updated on May 23, 2019 by LawEuro
Communicated on 13 September 2018
FIRST SECTION
Application no. 25244/18
N.A.
against Finland
lodged on 23 May 2018
STATEMENT OF FACTS
The applicant, Ms N.A., is an Iraqi national who was born in 1996. She is represented before the Court by Ms Marjaana Laine, a lawyer practising in Helsinki.
The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
The applicant’s complaint mainly concerns the fate of her father, who died in December 2017 in Iraq.
1. Background of the case
The applicant’s father was a Sunni Muslim Arab man from Baghdad who was born in 1971. He worked as a major in the army under Saddam Hussein’s regime until 2002. After the fall of Saddam Hussein’s regime, he worked for an American logistics company. From 2007 he was employed by the Iraqi Ministry of the Interior and worked there as an investigator in the Office of the Inspector General (hereinafter “the Office”). He was the only civil servant in the Office with a Sunni background, but he was promoted to lieutenant colonel. From 2008 onwards he interrogated hundreds of persons suspected of having committed crimes. In March 2014 he became a leading officer at the Office, whose task was to conduct internal investigations and to deal with human rights crimes as well as corruption. The investigations often concerned officers of the intelligence service or officers of the militia groups. His work became all the more dangerous when the Shia militia gained a substantial and official position in Iraq.
In early 2015 the applicant’s father was investigating his last case when he had a disagreement with one of his colleagues in the Office, Mr A., who belonged to the Badri organisation. Mr A. insulted him, physically assaulted him and threatened his life. After the incident Mr A., who was of Shia background, was transferred to the intelligence service and was promoted. In February 2015 there was an attempt to kill the applicant’s father by shooting him when he was leaving the Office with his driver. He reported the shooting to the police but subsequently realised that no investigation had been started and that the case file had been archived. He understood that he had no chance of receiving justice or protection from the Iraqi authorities and therefore he resigned from his post on 5 March 2015.
In April 2015 there was another attempt to kill the applicant’s father when a car bomb exploded in his car only minutes after he and his wife had got out. After this incident, the family left their house and went into hiding in several residences belonging to his wife’s relatives. In May 2015 the applicant was subjected to an attempted kidnapping but she was able to escape. She stopped going to school and went into hiding with the rest of the family. In August 2015 the applicant’s father, her adult brother and the applicant managed to flee from Iraq. The applicant’s mother and two minor sisters stayed in Iraq and remained in hiding.
2. Asylum proceedings
On 2 September 2015 the applicant’s father arrived in Finland with his son and daughter, the applicant, and sought international protection.
On 16 December 2016 the application of the applicant’s father was rejected by the Finnish Immigration Service (Maahanmuuttovirasto, Migrationsverket). In its reasoning, the Immigration Service accepted the account of the applicant’s father’s background, work and the incidents that had taken place in Iraq as established facts. There was no issue of credibility. Concerning Mr A., the Service found that the disagreement had been between two private individuals and that the allegation that Mr A. belonged to the Badri organisation was only based on hearsay. Moreover, the Service accepted that the shooting at the applicant’s father’s car and the car bomb attack had taken place, but assessed that those incidents had nothing to do with his personal qualities or background. As concerned working for the Americans, the Service considered that there could have been problems in that respect before 2011 but since the applicant’s father had later been able to obtain a post in the Ministry of the Interior, there was no indication that he was the subject of any special interest from the authorities. The Service acknowledged that Sunni Arab men were unlikely to obtain protection from the authorities in Iraq. However, the applicant’s father had not brought up any problems relating to his Sunni background, other than the argument with Mr A. In conclusion, the Service did not accept that the applicant’s father would be in danger of persecution upon return to Iraq.
By letter dated 7 February 2017 the applicant’s father appealed against the Immigration Service’s decision to the Administrative Court (hallinto‑oikeus, förvaltningsdomstolen).
On 26 September 2017 the Helsinki Administrative Court rejected his appeal. It found that people who had worked for Saddam Hussein’s regime were no longer subject to systematic persecution. The applicant’s father had also stopped working for the Americans more than ten years earlier and this fact alone did not make it likely that he would be subject to persecution by non‑State actors. The court held it improbable that the applicant’s father would be at serious risk upon return to Iraq due to his earlier work history. As to his work at the Ministry of the Interior, the court held that the applicant’s father had lived for several months in Baghdad after his disagreement with Mr A. and that the latter had not threatened him after the first incident. The shooting at the applicant’s father’s car, the car bomb and the relation of these incidents to his fear of persecution had only been based on his own conclusions. He did not know who the perpetrators had been, nor had he received any new threats during those three and a half months he had spent in Iraq after the shooting and the explosion. The court concluded that the shooting and the explosion had had nothing to do with him personally but had related to the general security situation in Baghdad. It was therefore improbable that the applicant’s father would be at serious risk upon return to Iraq due to his work at the Ministry of the Interior. His Sunni Arab background gave no reason to believe that he would be at real risk of persecution upon return to Iraq.
By letter dated 18 October 2017 the applicant’s father appealed to the Supreme Administrative Court (korkein hallinto-oikeus, högsta förvaltningsdomstolen), requesting that he be granted leave to appeal and that the court order a stay on his removal.
The Supreme Administrative Court did not order a stay on removal. On 30 November 2017 the court refused the applicant’s father leave to appeal.
3. Enforcement of the expulsion decision and the subsequent events
The applicant’s father agreed to return to Iraq voluntarily, and did so on 29 November 2017.
On 2 December 2017 the applicant learned that her aunt’s apartment, which the applicant’s family had previously used as a hiding place, had been attacked. Since then, the applicant has not been able to contact her family in Iraq.
Later in December 2017 the applicant learned from a neighbour that the applicant’s father had been killed. Apparently he was shot by unidentified persons on 17 December 2017.
COMPLAINTS
The applicant complains that her late father’s expulsion to Iraq violated Articles 2 and 3 of the Convention. The Finnish authorities were aware of the circumstances of the case, which created a real risk of loss of life or ill‑treatment for the applicant’s father if expelled to Iraq. Although the authorities accepted those circumstances and there was no issue of a lack of credibility, they failed to realise that the applicant’s father was at risk. Their risk assessment was thus incorrect. There had been two attempts on his life in spring 2015 before he managed to escape, and he had been killed less than three weeks after his return. Previous persecution is a strong indication that a person has a valid reason to fear being subjected again to persecution upon return (see J.K. and Others v. Sweden [GC], no. 59166/12, § 102, 23 August 2016). In such situations the authorities carry the burden of proof that previous persecution will not recur. The cumulative effect of the Sunni Arab background of the applicant’s father, his working in Saddam Hussein’s army, then for the Americans and lastly at the Ministry of the Interior in an anti-corruption unit placed him, according to objective country information, in a group at risk. With his Sunni Arab background, he was not able to seek protection from the Iraqi authorities. The risk assessment by the Finnish authorities was not undertaken with necessary diligence and it was in clear conflict with the Court’s case-law.
The applicant also complains under Article 3 of the Convention that her father’s expulsion and his violent death have caused her considerable suffering.
QUESTIONS TO THE PARTIES
1. Has the applicant’s father’s right to life, ensured by Article 2 of the Convention, been violated in the present case?
In particular, before deciding on his expulsion, did the authorities consider the applicant’s father’s submission that he would be exposed to a risk of being subjected to inhuman treatment under Article 3 of the Convention if returned to Iraq?
2. Has the applicant been subjected to inhuman or degrading treatment, in breach of Article 3 of the Convention?
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