THIRD SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 32621/06 by F.H. against Sweden

The European Court of Human Rights (Third Section), sitting on 13 May 2008 as a Chamber composed of:

Josep Casadevall , President, Elisabet Fura-Sandström , Corneliu Bîrsan , Boštjan M. Zupančič , Egbert Myjer , Ineta Ziemele , Ann Power , judges, and Santiago Quesada, Section Registrar ,

Having regard to the above application lodged on 15 August 2006,

Having regard to the decision to apply Article 29 § 3 of the Convention and examine the admissibility and merits of the case together.

Having regard to the interim measure indicated to the respondent Government under Rule 39 of the Rules of Court and the fact that this interim measure has been complied with,

Having regard to the decision to grant priority to the above application under Rule 41 of the Rules of Court.

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,

Having deliberated, decides as follows:

THE FACTS

1 . The applicant is an Iraqi national who was born in 1956 and is currently in Sweden . He i s represented before the Court by Mr H. Bredberg, a lawyer practising in Stockholm . The Swedish Government (“the Government”) a re represented by their Agent, M s I. Kalmerborn , of the Ministry for Foreign Affairs.

A. The circumstances of the case

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

1. Background and the request for asylum in Sweden

3 . On 9 January 1993 the applicant arrived in Sweden and applied to the Immigration Board ( Invandrarverket ) for asylum and a residence permit, claiming that he had left Iraq due to his fear of Saddam Hussein and his regime. He brought his three children with him (born in 1987, 1988 and 1991, respectively) while his wife arrived in July 1994. At the initial interview held with the applicant on the day of his arrival in Sweden , he stated, inter alia , that he was Christian and had worked as a major in the Republican Guard where he had served in a transport division for heavy vehicles. He had deserted from the army fourteen days previously and had fled to the northern part of Iraq where, with the help of a smuggler, he had managed to get on a plane to Stockholm . He had had neither ticket nor passport and his wife had remained in northern Iraq .

4 . In a written submission dated 20 January 1993 the applicant added mainly the following to his initial account. He was born in Basra but had moved to Baghdad in 1986 when he got married. Between October 1981 and February 1990, during the war with Iran , he had served in the military and he had been called up again between August 1990 and January 1992, during the occupation of Kuwait , to serve in an armoured transport division assigned to transport tanks. He had been given four military awards for bravery and four medals, however such medals had been given to a large number of officers and soldiers. In October 1992 he had been called upon to carry out military assignments (allegedly murders and terrorist acts) against the Shi ’ as in Al Ahwar. As he had felt unable to murder his own people, he had deserted and left Iraq on 20 December 1992. In this respect, he submitted that he sympathised with all organisations working against Saddam Hussein and working towards a democratic government. Following his desertion, he had visited his relatives in Basra and then made his way, with his family, to northern Iraq , where he and his children had travelled to Sweden via Turkey with the help of smugglers. Since he had held the rank of major in the reserve and had deserted, he would be executed if he was forced to return to Iraq . Apart from his four medals he also had an identity card as a major which confirmed that he was one of Saddam Hussein ’ s friends.

5 . At a second interview at the Immigration Board, held on 17 September 1993, the applicant confirmed the information provided by him and added, in particular, that he had not engaged in any political activities.

6 . On 14 and 15 December 1993 another two in-depth interviews were held with the applicant in which he essentially stated the following. He was Christian and belonged to the Ba ’ ath Party where he had attained the level of “advanced sympathiser” which was the level before becoming a full member. He had been drafted to the military in October 1981, had become an officer in 1986 and had advanced to major in 1990. He claimed that he had never participated in any combat or killed anyone since his military work mainly had consisted of ensuring the functioning of transports and support for the front line. As an officer, he had been placed under the orders of others and thus had never had any influence himself. He had participated in the war against Iran and when this ended in 1988 he had been transferred to an armoured tank division within the Republican Guard. In March 1992 he had received four medals for bravery from the Ministry of Defence. He stated that about 500 officers had received such medals and that they were mainly perceived as an encouragement to the officers. At this time he had also received a special identity card, “Friends of Saddam”, which almost every officer in the Republican Guard and some officers in the regular army received. He had never met Saddam Hussein personally but the card gave certain privileges, inter alia , in contacts with the authorities. During the interview on 15 December 1993, the applicant changed certain statements which he had previously given to the Immigration Board. In particular, he claimed that he had not been called back into service after he left the military in January 1992. Moreover, he stated that he had applied for a visa for a tourist trip to Malta with his family at the Maltese Embassy in Baghdad and that they had received both visas and exit permits for a month. Hence, on 4 October 1992, the family had travelled legally from Baghdad by minibus to Amman , Jordan , and from there by plane to Malta , via Cairo . He and his children had travelled to Sweden from Malta , with the help of smugglers. The applicant stated that he wished to return to Iraq if Saddam Hussein lost power.

7 . One further supplementary interview was held with the applicant on 10 January 1994 in which he maintained that he had left Iraq legally on 4 October 1992 by car to Amman , after the family had received valid passports, exit permits and visas. He also added that the family had remained in Amman for seven days and then flown to Cyprus where they had stayed for another seven days. They had intended to continue to Greece but since this had not been possible they had returned to Jordan and, after seven days there, they had travelled to Malta where they had arrived on 19 October 1992. Since the smugglers had not been able to arrange a passport for his wife, she had had to remain in Malta when the rest of the family went to Sweden .

8 . In February 1994 the Swedish Security Police ( Säkerhetspolisen ) proposed a rejection of the applicant ’ s asylum request for security reasons. On the basis of this, the Immigration Board decided to transfer the case to the Government for consideration but it recommended that the application be rejected. In its view, the applicant had not convincingly shown that he was in need of protection in Sweden . Although it accepted the applicant ’ s military background, it did not believe his reasons for leaving Iraq , inter alia , because he had only admitted to leaving Iraq legally with his own passport and an exit permit, and the route used, once confronted with facts.

9 . Subsequently, in 1997, the Security Police informed the Government that they no longer had any objections to the application from the point of view of security. The case was therefore transferred back to the Immigration Board.

10 . On 11 June 1998 the Immigration Board rejected the application for asylum with reference to its recommendation to the Government and noting that it found no reason to change the evaluation made at that time. Moreover, it dismissed the applicant ’ s request for a residence permit on the ground that it was not competent to change or repeal a final court judgment concerning expulsion. The Board observed that only the Government could repeal an expulsion order based on a criminal conviction and, in that connection, consider a request for a residence permit.

2. The criminal proceedings

11 . In the meantime, on 2 May 1995, before the asylum application had been determined, the District Court ( tingsrätten ) of Tierp convicted the applicant of murder and sentenced him to forensic psychiatric care, the duration of which was subject to a medical evaluation. It further ordered that the applicant be expelled from Sweden with a prohibition on returning. The applicant had admitted that he had killed his wife but claimed that he had acted in a psychosis and had not intended to kill her. He had suspected that she had been unfaithful and had conspired against him behind his back. In its judgment, the court noted that the applicant, after having locked the door to the children ’ s room, had attacked his wife while she was asleep and had stabbed her with a kitchen knife more than sixty times. In these circumstances, the court found that the applicant had been completely indifferent as to whether his wife died or not and therefore should be convicted of murder. However, since a forensic psychiatric examination showed that he had committed the crime under a “serious mental disturbance” ( allvarlig psykisk störning ) and was still, during the examination, suffering from such a disturbance, the court concluded that he was in need of treatment and thus sentenced him to forensic psychiatric care.

12 . As concerned the expulsion, the applicant had stated before the District Court that he had been an officer in Saddam Hussein ’ s army and often away on missions. Because of the war, he and his family had fled from Iraq in 1993 but he had psychological problems stemming from the war.

13 . The District Court had also consulted the Immigration Board and it had submitted that, although it had not yet made a decision regarding the applicant ’ s application for asylum and a residence permit, it considered that there were no impediments to the expulsion of the applicant to his home country. The Board noted that Swedish Security Police had objected to the applicant ’ s request for asylum for reasons of security. Moreover, the applicant, an army officer, had left Iraq legally with a valid Iraqi passport containing a one-month exit visa. He had not brought his national passport with him when he entered Sweden . Having regard to the Board ’ s view and noting that the applicant had committed a very serious crime, the District Court concluded that he should be expelled from Sweden for life.

14 . The applicant did not appeal against the judgment which, consequently, gained legal force.

15 . It would appear that, following the applicant ’ s criminal conviction, his children were taken into compulsory public care and placed with a Swedish family. Furthermore, a special guardian was appointed for them and they were granted permanent residence permits in Sweden .

16 . On 14 December 2004 the County Administrative Court ( länsrätten ) of the County of Dalarna decided to end the forensic psychiatric care and to release the applicant.

3 . Requests for the expulsion order to be revoked

17 . In the meantime, in July 1998, the applicant requested the Government to repeal the expulsion order against him. He insisted that he would be tortured and executed if he was returned to Iraq because he had deserted from the Iraqi army.

18 . On 12 November 1998 the Government rejected the request as they found that no special reasons existed for repealing the expulsion order.

19 . The applicant renewed his request in February 2001, maintaining his claims and adding that, on 22 January 1993, an Iraqi military court in Basra had sentenced him to execution by firing squad. He submitted a document (one page) and claimed that the judgment had been sent to him by acquaintances, via Jordan .

20 . Upon request by the Government, the Migration Board ( Migrationsverket ) submitted its view on the case. It stated that the applicant ’ s reasons had been examined previously, except for the alleged judgment which he had submitted to the Government. For several reasons, the Board doubted the authenticity of the document sent in by the applicant. It considered that the applicant had given no reasonable explanation for how the judgment had reached him from Iraq and, moreover, he had on no occasion mentioned the judgment although it was said to have been issued eight years previously. Apart from the disputed document, no new circumstances had appeared for which reason the enforcement of the expulsion could take place. However, the Board stated that there had been practical impediments to enforcement for some time with regard to Iraq .

21 . On 17 May 2001 the Government found that there were insufficient reasons for revoking the expulsion order. However, having regard to the situation in Iraq at the time, the Government decided to grant the applicant a temporary residence permit and work permit up until 17 November 2001.

22 . In a new application, dated 7 November 2001, the applicant requested that the expulsion order be revoked and that he be granted a permanent residence permit or, in the alternative, that his temporary residence permit be extended for at least one year.

23 . The Migration Board submitted its comments on the case on 12 December 2002, concluding that there were no legal or practical impediments to the enforcement of the expulsion order and that the applicant should be able to return to Iraq .

24 . Following the fall of Saddam Hussein ’ s regime in April 2003, the Migration Board sent another submission to the Government on 17 November 2003 where it noted that the applicant ’ s case now had to be seen in another light. His reasons for fearing a return to Iraq had been removed now that Saddam Hussein was no longer in power. The Coalition Provisional Authority governing Iraq at the time was striving to build up a society characterised by democracy and respect for human rights and those who had been close to the old regime and who had committed war crimes and other crimes against humanity would be brought to justice. Moreover, there was no reason to believe that the relevant international conventions would not be observed at these trials. Thus, the Board considered that the applicant would not risk being tortured or treated inhumanely if sent back to Iraq and consequently there was no impediment to his expulsion.

25 . In reply, the applicant claimed that since he had been an officer in the Republican Guard, he would be exposed to persecution and acts of revenge from primarily Shi ’ a Muslim groups and that there was no functioning legal system or police force which could give him protection against abuse. It followed that there existed impediments to the enforcement of his expulsion.

26 . Since the Government had several pending cases concerning expulsion to Iraq , they requested the Iraq Office at the Swedish Embassy in Amman to reply to some questions relating to the situation in Iraq .

27 . In November 2004 the Iraq Office sent, inter alia , the following information to the Government, which was communicated to the applicant. The death penalty was reintroduced in Iraq through Order 3/2004, of 8 August 2004, by the Interim Government, for offences such as murder, kidnapping and crimes against national security. Moreover, according to the Iraqi Penal Code of 1969, a person who has been convicted or acquitted by final judgment in another country cannot be retried in Iraq . However, it was not known whether this provision had been modified or changed by the Interim Government. Furthermore, it was difficult to assess “tribal justice” in Iraq due to the poor security situation in the country but it was possible that, if a person were to return to an area where he was known and his victim was also known, there could be a risk of revenge or “tribal justice”. It was further noted that there were reports of harassment against Christians and that attacks had been directed against Christians and other minorities during 2004.

28 . The applicant commented on the information and stressed that he was Christian and that the Christian minority in Iraq was being persecuted. Moreover, he had held a prominent position in the Ba ’ ath Party, had belonged to the exclusive circle that had been given the “Saddam ’ s friends” identity card and he was well known and hated by many. Thus, it was certain that he would be killed if returned to Iraq .

29 . On 21 March 2005 the Minister of Justice at the time decided to suspend the enforcement of the expulsion order until otherwise decided or until the Government made a final decision on the case. He further decided that the applicant should report to the police three times per week in order to prevent him from going into hiding.

30 . Subsequently, the Government requested the Iraq Office at the Swedish Embassy in Amman to reply to some supplementary questions relating to the situation in Iraq , which it did on 3 November 2005. In its reply, it noted that, at the time, it was very difficult to get a complete overview and clear information about Iraq . Still, it observed that persons who had been part of the Republican Guard, other special military units or the military in general were being arrested and tried in Iraq . According to sources such as the UNHCR, the activities of these persons within their organisation determined how they were being treated more than what military unit they had belonged to. However, their position and military rank was of relevance as an indication of who could be targeted. In this context it was noted that members from special units, such as the Republican Guard, were being re-employed into the current special units. Moreover, the UNHCR had stated that even though many Iraqis were harassed as a result of their former membership of the Ba ’ ath Party, this harassment did not necessarily amount to persecution. A careful individual assessment was always necessary.

31 . The applicant, in a comment on the Iraq Office ’ s information, maintained that there was a real risk that he would be subjected to extrajudicial execution if returned to Iraq due to his previous connections to Saddam Hussein ’ s regime.

32 . On 27 June 2006 the Migration Board submitted its opinion on whether the reintroduction of the death penalty in Iraq in 2004 had an impact on the enforceability of the applicant ’ s expulsion order. It considered that none of the information submitted by the applicant, in his detailed asylum interview in 1993 and later, regarding his position and activities until he left Iraq in 1992, indicated that he would risk legal measures, least of all the death penalty, from the current Iraqi government. Neither his membership of the Ba ’ ath Party nor his relatively subordinate position in a non-combat unit were likely to cause him problems with the Iraqi authorities upon return to his home country. Thus, there were no impediments to the enforcement of the expulsion order.

33 . On 6 July 2006 the Government decided not to revoke the expulsion order and rejected the applicant ’ s request for a residence permit. It found that there was neither any impediment to the enforcement of the expulsion nor any other special reason under the Aliens Act to revoke the expulsion order.

34 . As the expulsion order had become enforceable anew, the police authority, on 27 July 2006, detained the applicant awaiting the enforcement of his expulsion order.

4 . Application of Rule 39 of the Rules of Court and further developments in the case

35 . On 15 August 2006 the applicant requested the Court to indicate to the Swedish Government under Rule 39 of the Rules of Court a suspension of his expulsion to Iraq . He alleged that he would be executed or tortured and imprisoned if returned to his home country because he had been an officer during Saddam Hussein ’ s regime and had belonged to his “inner circle”. Moreover, since he was Christian, he risked persecution on religious grounds.

36 . On 17 August 2006 the Court decided to apply Rule 39 and to suspend the expulsion until 1 September 2006 in order to obtain some further information from the Swedish Government. In particular, the Government were requested to give their opinion on whether the applicant would risk being brought to trial before the Supreme Iraqi Criminal Tribunal (hereinafter referred to as “the SICT”) and sentenced to death.

37 . On the following day, the Minister of Justice at that time decided to suspend the expulsion of the applicant until further notice. He also decided to keep the applicant in detention since there was reason to believe that he otherwise would try to abscond. The detention decision was reconsidered every two months until 29 June 2007, when it was decided to release him and that he should report to the police three times per week.

38 . In the meantime, on 31 August 2006, the Government replied to the Court ’ s request. They first observed that the SICT had jurisdiction over individuals residing in Iraq accused of war crimes, genocide, crimes against humanity and a number of “political” offences under Iraqi law, including waste of national resources and abuse of position. It applied the penalties available in Iraqi law, including the death penalty. The Iraqi Governing Council had agreed that the SICT should process a limited series of 10 to 15 trials, focusing on major events that showed the geographic and temporal spread of the regime ’ s crimes, and that only the highest-level perpetrators should be tried before the SICT. Other perpetrators should be tried by regular Iraqi courts.

39 . The Government further noted that the applicant ’ s claim that he had belonged to Saddam Hussein ’ s inner circle was recent and did not correspond with the detailed statements given by him during the asylum proceedings. Moreover, he had not elaborated on this claim or offered any evidence in support of it. Thus, there was nothing in the applicant ’ s own statements, or in the investigation in general, that gave reason to believe that he had belonged to the Saddam Hussein ’ s inner circle. The Government also stressed that the applicant had neither claimed to have committed any crime, nor that he was, or might be, suspected of having committed a crime which fell under the jurisdiction of the SICT. The sole fact that he had held a subordinate position as an officer in the Republican Guard or been a member of the Ba ’ ath Party did not give reason to believe that he would be suspected of such serious crimes. On the basis of the above, the Government submitted that there was nothing in the circumstances of the case that gave reason to believe that the applicant might be brought to trial before the SICT or sentenced to death by that tribunal.

40 . On 1 September 2006 the Court extended the application of Rule 39 until 15 September 2006 in order to enable the applicant to reply to the Government ’ s comments.

41 . The applicant submitted his comments in reply to those of the Government on 13 September 2006. He stated that t he Ba ’ a th P arty had been an e lite party with only a few full members. He had been an “ advanced sympathiser ” which meant that he had held a high position in the hierarchy . Moreover, although he had not been in the infantry, he had participated in battle in an armoured unit during the various wars until 1992 when he had left the country because he had been ordered to carry out military actions that were against international law . The Government ’ s allegation that he had said that he had not been or could not be suspected of crimes under the jurisdiction of the SICT was wrong. The assessment of his application for asylum took place in 1993 , at a time when the SICT had not yet come into existence and he had also not been asked about it later. Since the fall of Saddam Hussein ’ s regime t he death penalty had continued to be wi dely practised in Iraq . Apart from the risk that he be sentenced by the SICT or an other jurisdiction , there was a real risk that he would be the victim of an extrajudicial killing. Extremist militias tried to find and kill all officers who had fought for Saddam Hussein in the war against Iran or who had fought against the S hi ’ as in s outhern Iraq in 1991. The retaliation was collective and directed against all officers who had fought under Saddam Hussein . The applicant also stressed that as a Ch ristian he would be without protection in Iraq and h is situation upon return would thus be most serious.

42 . On 13 September 2006 the Court extended the application of Rule 39 until 26 September 2006, on which date it was extended until further notice.

B. Relevant domestic law and practice

1. Domestic law on expulsion

43 . Pursuant to Chapter 1, Article 8 of the Penal Code ( Brottsbalken 1962:700), a crime may, apart from ordinary sanctions, result in special consequences defined by law. Expulsion on account of a criminal offence constitutes such a consequence and the decision in this respect is made by the court in which the criminal proceedings take place.

44 . Provisions on expulsion on this ground are laid down in the new Aliens Act ( Utlänningslagen , 2005:716 –hereinafter referred to as “the 2005 Act”) which replaced the old Aliens Act ( Utläningslagen , 1989:529) on 31 March 2006. However, the rules on expulsion on account of a criminal offence remain the same in substance under the 2005 Act as under the old Aliens Act. Thus, in the following, reference will only be made to the 2005 Act.

45 . According to Chapter 8, section 8 of the 2005 Act, an alien may not be expelled from Sweden on account of having committed a criminal offence unless certain conditions are satisfied. First, he or she must have been convicted of a crime that is punishable by imprisonment. Secondly, he or she may only be expelled if the sentence is more severe than a fine, and if (1) it may be assumed, on account of the nature of the crime and other circu ms tances, that he or she will continue committing crimes in Sweden, or (2) the offence, in view of the damage, danger or violation involved for private or public interests, is so serious that he or she ought not to be allowed to remain in the country.

46 . Furthermore, under Chapter 8, section 11 of the 2005 Act, when considering whether or not an alien should be expelled, the court shall take into account the person ’ s links to Swedish society. In doing so, the court shall pay particular attention to the living conditions and family circumstances of the alien and the length of time that he or she has resided in Sweden .

47 . Moreover, the court must have regard to the general provisions on impediments to the enforcement of an expulsion decision. Thus, pursuant to Chapter 12, section 1 of the 2005 Act, there is an absolute impediment to expelling an alien to a country where there are reasonable grounds for believing that he or she would be in danger of suffering capital or corporal punishment or of being subjected to torture or other inhuman or degrading treatment or punishment. Further, a risk of persecution generally constitutes an impediment to enforcing an expulsion decision.

48 . A decision to expel an alien on account of having committed a criminal offence is, according to Chapter 12, section 14 § 3(2) of the 2005 Act, enforced by the police authority. If the police authority finds that there exist impediments against the enforcement, it shall notify the Migration Board, which shall refer the matter to the Government for examination as to whether the expulsion can be executed (Chapter 12, section 20 of the 2005 Act). If there are no impediments to the enforcement, the alien shall normally be sent to his or her country of origin or, if possible, to the country from which he came to Sweden (Chapter 12, section 4 of the 2005 Act).

49 . According to Chapter 8, section 14 of the 2005 Act, if the Government find that a judgment or decision to expel a person on account of having committed a criminal offence cannot be executed or if there are otherwise special reasons not to enforce the decision, the Government may repeal, in part or completely, the judgment or decision of the court. When considering whether to repeal an expulsion order, the Government shall above all take into account any new circumstances, namely circumstances that did not exist at the time of the courts ’ examination of the criminal case. In the travaux préparatoires to this provision (Government Bill 1988/89:86, p. 193), strong family ties and severe illness are given as examples of such “special reasons” that may warrant revocation of an expulsion order. The Government may also, in accordance with Chapter 11, Article 13, of the Instrument of Government ( Regeringsformen ), pardon or reduce a penal sanction or other legal effect of a criminal act.

50 . In cases where the expulsion order is not revoked, the Government may still grant a temporary residence permit and work permit. For as long as such a permit is valid, the expulsion order may not be executed (Chapter 8, section 14 of the 2005 Act).

2. Swedish policy on asylum seekers from Iraq and expulsion to Iraq

51 . In a judgment of 26 February 2007 (MIG 2007:9), the Migration Court of Appeal ( Migrationsöverdomstolen ) found that, at that time, the security situation in Iraq was very serious but that it did not amount to an internal armed conflict, as defined by international law. Moreover, it noted that it was practically possible to return to Iraq voluntarily and that some Iraqis indeed did so. In these circumstances, an individual assessment of each asylum seeker ’ s personal grounds for requesting asylum and a residence permit in Sweden had to be carried out. This conclusion has been reiterated by the Migration Court of Appeal on several occasions during the last year (see, for example, MIG 2007:22, MIG 2007:33 and, as recently as 22 February 2008, UM 558-07).

52 . On 18 February 2008 the Swedish Government signed a Memorandum of Understanding with the Iraqi Government, whereby the two countries “resolve to cooperate in order to assist the voluntary, dignified, safe and orderly return to and successful reintegration in Iraq of Iraqis now in Sweden ”. Although primarily focusing on voluntary returns, the Memorandum also allowed for forced returns of failed asylum seekers.

C. Relevant international background material on Iraq

53 . During the regime of Saddam Hussein , Iraq was at war with Iran between 1980 and 1988. In August 1990, Iraq invaded Kuwait , which led to the “First Gulf War”, lasting for six weeks between 17 January and 28 February 1991. Between March and April 1991 the regime suppressed a Kurdish insurgency in northern Iraq and a Shi ’ a insurgency in the south of the country. In March 2003 the “Second Gulf War” started when US-led multinational forces invaded Iraq and overthrew Saddam Hussein ’ s regime. The Republican Guard was involved in all of these conflicts. It expanded rapidly during the Iraq-Iran War and it was the best equipped and trained units among Saddam Hussein ’ s forces. The members of the Republican Guard were volunteers rather than conscripts and they received better pay and privileges than the members of the regular army. In May 2003 the Republican Guard, the Iraqi army, the police and the Ba ’ ath Party were officially dissolved by the Coalition Provisional Authority.

54 . In June 2004 power was transferred from the Coalition Provisional Authority to the Iraqi Interim Government and, in October 2005, a permanent government was elected by the Iraqis. The declared state of emergency lapsed in April 2007 and by the end of the year it had not been renewed. However, there were reports that law enforcement activities often continued as if the state of emergency was still in effect [1] .

55 . Under the new constitution, the Ba ’ ath Party was banned and holders of high position who were suspected to have been close to the old regime and/or taken part in different violent actions could be and had been arrested and called to account. It was the person ’ s own background and the credibility of his or her account that determined the risk of judicial proceedings [2] . Moreover, in 2003, the Iraqi High Tribunal (IHT, formerly the SICT) was created to try persons accused of committing war crimes, crimes against humanity, genocide and specified offences between 17 July 1968 and 1 May 2003. The IHT had already tried and convicted Saddam Hussein and a few of his closest collaborators. Several of them had been sentenced to death and some to life imprisonment. At least one defendant had been acquitted. During 2007 investigations continued of a number of crimes allegedly committed by members of the former regime, including atrocities following the 1991 Kurdish and Shi ’ a insurgencies and the invasion of Kuwait . Cases relating to the 1991 insurgencies were being tried by the IHT at the end of 2007 [3] .

56 . For individuals who did not “qualify” for examination by the IHT, there still remained a risk of review by the usual legal system and its criminal courts. The death penalty had been reintroduced in 2004 for a number of crimes such as crimes against national security, murder, kidnapping and drug trafficking and it was increasingly used [4] . Moreover, in particular in Baghdad , southern and central Iraq , several Shi ’ a militia groups more or less systematically, and very extensively, sought out people who were guilty of acts of aggression under the former regime. Sunni extremist groups were also active, although against people who collaborated with the present government or the Americans. The more well known a person had been as a representative of the former regime, the greater the risk of being discovered and punished. Informal networks and information supplemented more official sources and evidence [5] .

57 . However, the Government had set in motion a “de-Ba ’ athification programme” for the reintegration of all those who had not held leading positions in the party apparatus or who had not participated in serious crimes, provided that they renounced all ideological dealings with the forbidden Ba ’ ath Party [6] . The Parliament had also approved a law (Accountability and Justice Law) which made it possible for former members of the Ba ’ ath Party to hold official positions [7] .

58 . During 2007 the Iraqi Government grew more fragmented and dysfunctional and the prospect of national political reconciliation seemed distant [8] . Civilians were targeted by attacks by Sunni and Shi ’ a groups across the country, and there were widespread and severe human rights abuses, including kidnappings, disappearances, torture and killings. The authorities frequently did not maintain effective control over security forces and did not have effective mechanisms to investigate and punish abuse and corruption [9] . However, the overall violence across Iraq declined steadily from October 2007, from averages of 200 incidents a day in July and Au gust to approximately 90 a day between September and November [10] . The deployment of additional multinational forces early in the year was one reason for the reduction in violence and another, crucial reason was the ceasefire declared in August by Moqtada al-Sadr, the leader of the Mahdi Army [11] , for a period of six months . At the beginning of March 2008, al-Sadr extended the ceasefire for another six months [12] . Moreover, violence abated because Sunni and Shi ’ a populations had fled from mixed areas and thus had become increasingly divided into geographically distinct communities. There were signs by the end of 2007 that some refugees and internally displaced persons were starting to return [13] .

59 . The number of violence-related deaths among civilians continued to decrease until January 2008 but then increased again in February 2008, in particular in Mosul , Baghdad and the south. Still, the number of deaths remained lower than compared to most months during 2007 [14] .

60 . The Iraqi Constitution provides fo r freedom of religion. Passports do not in dicate an individual ’ s religion but the national identity c ard explicitly notes the holder ’ s religion. According to the official 1987 census, there were 1.4 million Christians living in Iraq . Although difficult to verify, the Christian Peace Association (CPA), estimated that about 450,000 Christians remained in Iraq at the end of October 2007, most of whom had moved to the northern provinces , although since September 2007 there had been attacks and threats against the community in Kirkuk and Mosul [15] .

61 . Following a speech by Pope Benedict XVI, on 12 September 2006, which had included what were perceived to be disparaging comments about Islam, there was an increase in threats and violence against Christians. A terrorist group linked to al-Qa ’ ida in Iraq vowed to embark on a war agains t the “worshippers of the cross” [16] . Moreover, according to the CPA, Islamic extremists had issued a fatwa , stating that Christians could only stay in their homes if they converted to Islam, and had distributed it in every Christian neighbourhood, causing many to leave their homes [17] . The G overnment and religious leaders publicly denounced all incidents of sectarian violence and repeatedly en couraged unity among the country ’ s religious group s. However, deficiencies in security force capabilities and in the rule of law made it difficult for the Iraqi Security Forces and the justice system to investigate or address alleged violations [18] .

62 . Since March 2003, the UNHCR has advocated recognition of the international protection needs of Iraqis outside their country, and hence a suspension of forced returns, due to the objective situation of armed conflict and generalised violence in Iraq [19] . In December 2007, the UNHCR maintained that Iraqi asylum-seekers from central and southern Iraq were in need of international protection and should be considered refugees on the 1951 Convention criteria or, as an alternative, be afforded a complementary form of protection. It further considered that internal flight and relocation alternatives in central and southern Iraq were on the whole not available [20] . On 15 February 2008 the UNHCR again reiterated that it did not promote returns to Iraq in the present circumstances since its criteria on the conditions needed for the voluntary return of refugees were not met by the situation in Iraq at that time [21] . In January 2008 the UN observed that the improvements in security were still not sufficient to guarantee protection to those returning to Iraq [22] . Currently there are about 2,700,000 Iraqis displaced within Iraq and nearly 2,400,000 Iraqis have left the country, most of them to Syria and Jordan [23] .

COMPLAINT S

63 . The applicant complain ed under Article s 2 and 3 of the Convention that , if expelled from Sweden to Iraq , he would face a real risk of being killed or subjected to inhuman treatment and torture .

THE LAW

64 . The applicant claimed that an expulsion to Iraq would subject him to a real risk of being killed or subjected to torture or inhuman and degrading punishment, in violation of his rights under Articles 2 and 3 of the Convention. These provisions read, in relevant parts, as follows:

Article 2

“1. Everyone ’ s right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law.”

Article 3

“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”

65 . The Government considered that the application should be declared inadmissible as being manifestly ill-founded.

66 . They submitted that it could be inferred from the Court ’ s case-law (see H.L.R. v. France , judgment of 29 April 1997, Reports of Judgments and Decisions 1997 ‑ III, p. 758 , § 41) that the general situation of violence existing in the country of destination would not in itself entail, in the event of expulsion, a violation of Article 3. For a violation to be established it had to be shown that there were substantial grounds for believing that the applicant would run a real and personal risk of being subjected to treatment contrary to Articles 2 or 3 of the Convention if returned to Iraq. Thus, the Government would focus on the applicant ’ s personal situation and the grounds relied on by him.

67 . In this respect, they questioned the applicant ’ s general credibility, pointing out that his statements to the Government and to the Court had, generally, been very vague and sweeping and had been unsupported by further details, particulars, facts or examples. In particular, the Government doubted the veracity of the applicant ’ s claim that he had been close to Saddam Hussein, noting that it was only in a submission to the Government in February 2005 that he had alleged that he had held a prominent position within the Ba ’ ath Party. Before that, he had consistently stated that he had not been a full member of the Ba ’ ath Party but only an “advanced sympathiser”. Hence, his claim that he had belonged to Saddam Hussein ’ s inner circle found no support in his statements during the asylum proceedings and it appeared to be inconsistent with these statements. Moreover, he had offered no information on what position he had held within the party and had all along maintained that he had actually never met Saddam Hussein. In any event, the Government noted that it had not been unusual to be a member of the Ba ’ ath Party, but more or less a prerequisite for anyone who had wanted to advance in any way in Iraq . According to certain estimates by experts, of Iraq ’ s twenty-four million inhabitants, two million had belonged to the party.

68 . Moreover, the Government noted that the applicant ’ s claim that he had participated in combat during the war against Iran , in the first Gulf war and against the Shi ’ a insurgency was contrary to his previous statements that he had not participated in battle as he had been responsible for transporting vehicles and food. Furthermore, they argued that, in relation to the applicant ’ s claims that he might be tried by the SICT, he had offered no explanations or circumstances in support of why charges might be brought against him, reiterating that the applicant repeatedly had stated that he had not participated in battle, had not killed anyone and that his main responsibility had been to carry out transports. Thus, the Government argued that he had failed to show that he might be brought to justice before an Iraqi court, let alone that it would bring him a death sentence.

69 . Having regard to the above, the Government submitted that the information given by the applicant during the asylum interviews in 1993/94, namely that he had held a relatively subordinate position in a non-combat unit in the Iraqi army more than fourteen years before, had to form the basis for an assessment of whether he risked execution or torture or other ill-treatment if returned to Iraq.

70 . The Government then noted that the sole fact that a person had served in the Iraqi military under Saddam Hussein did not subject him to a risk of capital punishment or torture, but that the individual risk depended on the person ’ s position, military rank and the activities he had been involved in. Moreover, according to AP news on 6 April 2007, the Iraqi Prime Minister had ordered that former officers in the Iraqi forces under Saddam Hussein should either be re-employed or receive pensions. Those who had held the rank of major or below could voluntarily return to the army. The Iraqi Minister of Defence, Mr Abdu Alqadir Al-Ubaydi, was given as a specific example as he had been in the military since 1973 and had led an armoured brigade during the Iran-Iraq war. Consequently, there was nothing to suggest that the applicant would be at risk in Iraq . In any event, the Government noted that the applicant had not claimed that he was personally wanted by the Iraqi authorities or that they were searching for him.

71 . In line with the above, the Government submitted that the applicant did not face a real risk of being killed extrajudicially. In their view, it was unlikely that the reintegration of former officers now taking place in Iraq would be possible if everyone who had been in Saddam Hussein ’ s army risked extrajudicial killing solely on this account. Also, considering the large number of members of the Ba ’ ath party during the old regime, it was not likely that the applicant ’ s low position in the party would now, more than fourteen years after he left the country, attract any interest in Iraq or subject him to a risk of fatal retaliation from different interest groups.

72 . With regard to the applicant ’ s allegation that Shi ’ a militia groups would try to kill him, the Government first seriously questioned that he had participated in battle against the Shi ’ a insurgency, observing that this statement appeared for the first time in a written submission to the Court on 12 September 2006. Before that, he had claimed that he had left Iraq immediately after being ordered to carry out acts which violated international law. However, even if he had participated, the Government maintained that due to his rather low military rank in a transport unit, there was no evidence that he would be known in his home country more than fourteen years after his departure from Iraq and thus risk retaliation.

73 . As concerned the issue whether the applicant might risk being sentenced in Iraq a second time for the murder of his wife in Sweden , the Government observed that according to the Iraqi Penal law from 1969, proceedings could not be initiated if a final sentence had been given by a foreign court or if the Iraqi Ministry of Justice had not given its permission. It was unclear whether this provision had been altered under existing Iraqi law, but the Government stressed that the applicant had fully served the sentence imposed on him in 1995 in Sweden and that there was no reason to expect the Iraqi authorities to have an interest in pursuing the applicant in a new trial in Iraq for the same crime.

74 . The Government further submitted that the sole fact that someone was a Christian could not be considered to entail an additional risk of being exposed to violence. They claimed that the applicant had not described himself as actively religious in Sweden or in Iraq in such a way that people would associate him with Christianity and he would be personally targeted because of this in Iraq . In this context, they noted that, although the situation for Christians might be problematic in certain parts of Iraq , fifteen new evangelical Christian congregations had been established in Baghdad since 2003 according to the US Department of State [24] . Thus, they considered that there was no well-founded reason to believe that the applicant would be persecuted or ill-treated due to being a Christian.

75 . Hence, in conclusion, the Government contended that the applicant had not shown that he would face a real and personal risk of treatment contrary to Articles 2 or 3 of the Convention if expelled to Iraq .

76 . The applicant maintained that, if forced to return to Iraq , he would face a real and serious risk of being sentenced to death by an Iraqi court or of being killed extrajudicially, primarily by Shi ’ a militia groups.

77 . He claimed that he had told the Swedish Security Police, when they had interviewed him in 1993 that he had participated in about fifteen battles during the Iran-Iraq war and during the internal “cleansing” operations in southern and northern Iraq in 1991. He had been trained as an infantry soldier and had been active as such from 1980 to 1988. Thus, he had been taught how to handle weapons and in hand-to-hand fighting. In 1988 he had reached the rank of officer and thereafter he had been working with logistics. During this period he had also had to write reports on Shi ’ a insurgency leaders which had led to the execution of two of them. According to the applicant, the Shi ’ as considered these two persons martyrs and there were “people ’ s committees” within the Mahdi Army, and other Shi ’ a militias, which reported on the whereabouts of all former officers belonging to the Republican Guard and executed them. In this respect, it was irrelevant whether the applicant had personally killed any of these or not.

78 . Furthermore, the applicant strongly objected to the Government ’ s claim that he was not credible. For instance, he had never alleged that he had belonged to Saddam Hussein ’ s inner circle and he had all along stated that he had never even met him. However, he maintained that he was well known and that the Shi ’ as by way of their various militias were actively looking for persons with the applicant ’ s background and killing them. The fact that a long time had elapsed since he had served in the Republican Guard was irrelevant.

79 . In the applicant ’ s view, it was also possible that he might be tried again in Iraq for the murder of his wife. This was in particular so since he had been sentenced to forensic psychiatric care and not to imprisonment.

80 . Finally, he stressed that, according to estimates, before 2003 approximately 1% of Iraq ’ s twenty-six million inhabitants were Christians but that more than half of these had now left the country. He was Christian and the Government had never asked him about his religious activities in Sweden .

81 . Thus, the applicant was convinced that on the basis of all of the above grounds, he would face a real risk of being killed or tortured or ill-treated contrary to Articles 2 or 3 of the Convention if forced to return to Iraq .

82 . The Court considers, in the light of the parties ’ submissions, that the complaint raises serious issues of facts and law under the Convention, the determination of which should depend on an examination of the merits. The Court concludes therefore that the complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring it inadmissible has been established.

For these re asons, the Court by a ma jority

Decides to discontinue the application of Article 29 § 3 of the Convention;

Declares the application admissible, without prejudging the merits of the case.

             Santiago Quesada Josep Casadevall              Registrar              President

[1] US Department of State , Iraq , Country Reports on Human Rights Practices 2007 , 11 March 2008.

[2] Information from the Iraq Office of the Swedish Embassy in Amman , Syria , to the Swedish Government, dated 15 March 2007.

[3] US Department of State, country report, cited above.

[4] Information from the Iraq Office, cited above.

[5] Ibid.

[6] Ibid.

[7] The Migration Board, Uppdatering av utvecklingen i Irak sedan 2007-11-30 [Up-date of the development in Iraq since 30 November 2007] , report of 5 March 2008.

[8] Human Rights Watch, World Report 2008 – Iraq , 31 January 2008.

[9] US Department of State, country report, cited above.

[10] UN Security Council, Report of the Secretary-General pursuant to paragraph 6 of resolution 1770 (2007) , doc. S/2008/19, 14 January 2008.

[11] A lso known as the Mahdi Militia or Jaish al Mahdi , it is a Shi’a paramilitary force created in June 2003 to fight against the US led multinational forces.

[12] The Migration Board’s report of 5 March 2008, cited above, and Center of Excellence -Pacific Disaster Management Information Network, Iraqi Crisis Report , 19 March 2008.

[13] Human Rights Watch, cited above.

[14] The Migration Board’s report of 5 March 2008, cited above, and Center of Excellence , report of 19 March 2008, cited above.

[15]    The Humanitarian News and Analysis Service, IRIN, Iraq : Christians seek new life in Europe , 5 November 2007, http://www.irinnews.org/Report.aspx?ReportId=75149

[16]   US Department of State, International Religious Freedom Report 2007 - Iraq , 14 September 2007.

[17] IRIN, Iraq : Baghdad Christians flee as violence against them mounts , 3 May 2007, http://www.irinnews.org/Report.aspx?ReportId=71925 and US Department of State, religious report, cited above.

[18] US Department of State, religious report, cited above.

[19] UNHCR, Strategy for the Iraq Situation , as revised 1 January 2007.

[20] UNHCR, Addenum to UNHCR’s Eligibility Guidelines for Assessing the International Protection Needs of Iraqi Asylum-seekers , December 2007.

[21] UN News Centre, 15 February 2008,    

http://www.un.org/apps/news/story.asp?NewsID=25635&Cr=Iraq&Cr1=#

[22] UN Security Council report, cited above.

[23] Center of Excellence , report of 19 March 2008, cited above.

[24] US Department of State , I raq I nternational Religious Freedom Report 2006 , September 2006.