DISSENTING OPINION OF JUDGE POWER JOINED BY JUDGE Zupančič

Since protection against the treatment prohibited by Article 3 is absolute, that provision imposes an obligation not to ( ... ) expel any person who, in the receiving country, would run the real risk of being subjected to such treatment. As the Court has repeatedly held, there can be no derogation from that rule . ( Saadi v. Italy [GC], no. 37201/06, § 138 , ECHR 2008 ‑ ... )

I do not share the confidence of the majority that the forcible return of the applicant to Ira q would not engage the respondent State ’ s obligations pursuant to Articles 2 or 3 of the Convention. As the values in issue are fundamental and the rights in question are absolute, the assessment of the existence of a risk must be a “rigorous” one ( Chahal v. the United Kingdom , 15 November 1996, § 96 , Reports of Judgments and Decisions 1996 ‑ V ). In determining whether a risk of ill-treatment arises in the context of a proposed deportation order “ the Court must examine the foreseeable consequences of sending the applicant to the receiving country, bearing in mind the general situation there and his personal circumstances ” . [1]

The General Situation in Iraq

International forces have been present in Iraq since the U.S. led military invasion in March 2003. Almost six years on, several militia groups are fighting against those international forces and against each other. Updated reports from independent human rights bodies provide a revealing picture of the reality of life in Iraq and it is not reassuring. [2] According to the UNHCR, recent events in Baghdad and central Iraq show that the situation “ remains highly fragile ”. [3] “ Sectarian and intra-sectarian violence remains high ” and targeted violence, suicide attacks, kidnappings and extra-judicial killings are “ a regular occurrence ”. [4] Political assassinations, abductions and killings of journalists, members of religious and ethnic minority groups, persons not

considered to be following “Islamic” rules and former Ba ’ athists remain a reality. [5] No synopsis could convey, adequately, the extent of the disorder as described in the published reports and there is nothing close to a safe environment obtaining in Iraq at this time. The applicant was born in Basra but is from Baghdad . The probability of his being subjected to treatment in violation of Articles 2 or 3, if deported, must be assessed against the reality of the current situation.

In making its assessment, the majority notes that a general situation of violence existing in the country of destination does not in itself entail, in the event of deportation, a violation of Articles 2 or 3 of the Con vention (see § 90 of the judgment ) and it cites H.L.R. v. France ( judgment of 29 April 1997, § 41 , Reports 1997 ‑ III ) as authority for that proposition. In H.L.R., the Court was concerned with an expulsion from France to Colombia where the applicant had been involved in drug trafficking. While noting that the “atmosphere” in Colombia at the relevant time was “tense” ( ibid., § 42) the Court was satisfied that there was nothing to indicate that the applicant would not be afforded appropriate protecti on by the authorities ( ibid., § 32) . The seriousness of the situation in Iraq , today, is of a different order of magnitude to the “tense atmosphere” obtaining in Colombia in 1997. The Court in H.L.R. cannot be regarded as having articulated an unqualified statement of principle in relation to all countries where “a general situation of violence” exists. Careful consideration must be given to the nature, severity and extent of the violence and each case must be assessed, rigorously, on its own merits.

The majority accepts that there is a “ problematic security situation in Iraq ”. It notes, however, that it has improved over the last year, demonstrated, inter alia , by the fact that “ some Iraqis are voluntarily starting to return to their homes ” (§ 91 of the judgment ). It cites the respondent State ’ s submission that during the first four months of 2008, almost 300 Iraqis had returned home, voluntarily, from Sweden . There is, in my view, a world of a difference between 300 people choosing, voluntarily, to assume the risks involved in returning to their war torn country and the forcible expulsion (by a Convention State) of vulnerable people to such a volatile conflict zone. In view of the objective situation of armed conflict and violence, the UNHCR continues to advocate for “ the recognition of the international protection needs of Iraqis outside their country and for a suspension of forced returns ”. [6] Such people “ may be presumed to have international protection needs ” and the UNHCR considers them to be “ refugees on a prima facie basis ”. [7] While expressing the hope that Iraqis would be able to return home in safety once the necessary conditions of stability and security were established, the UNHCR nevertheless confirmed, as recently as September 2008, “ that these conditions were not yet present ” (see § 69 of the judgment ). (Emphases added)

It is, of course, accepted that the language of the UNHCR or of other international human rights NGOs is not framed, specifically, by reference to the European Convention on Human Rights and to the high threshold of Article 3 as elaborated in the case law of this Court. Nevertheless, this Court frequently (and rightly) attaches importance to the observations and conclusions of such organisations when making its own assessment of a risk faced by an applicant if a deportation order were to be implemented. (See Jabari v. Turkey , no. 40035/98, § 41 , ECHR 2000 ‑ VIII ; Said v. the Netherlands , no. 2345/02, § 54 , ECHR 2005 ‑ VI ; Saadi v . Italy , cited above , § 131; and NA v . t he United Kingdom , no.25904/07, § 124, 17 July 2008.) Thus, the objective reports of independent human rights bodies must be given due weight and, when considered with other factors in relation to alleged risk, may be decisive in terms of tipping the balance when it comes to the preponderance of evidence . Faced with the divergent claims of opposing parties and having regard to the rigorous assessment that is required, I take the view that significant weight should attach to the objective reports of independent human rights organisations regarding the current situation in Iraq, particularly, where those reports address, specifically, the grounds for the alleged real risk of ill treatment that are raised in the case before the Court.

The Personal Circumstances of the Applicant

Against the background of the general situation in Iraq , the Court is obliged to consider the personal circumstances of the proposed deportee in its assessment of the risks involved. The applicant is, undoubtedly, a vulnerable person, who was detained and treated within the respondent State ’ s psychiatric care services in the aftermath of the deranged and unlawful killing of his wife in a state of “ serious mental disturbance ”. That vulnerability is a factor to be weighed in the balance.

In addition, regard must also be had to the specific circumstances which he claims would expose him to a real risk of being killed, tortured or ill-treated if deported to Iraq . These include, inter alia , his former military activities as an officer and a major within the Republican Guard, his consequent interest to Shi ’ a militia groups that, allegedly, report upon the whereabouts of such former officers and execute them and his membership of the minority Christian faith. He also claims that the risk of being killed or ill-treated is augmented by the possibility that he will face a retrial in Iraq arising from his conviction, in Sweden , for the death of his wife.

Assessment of Risk Based on Membership of Former Regime

The majority does not question the applicant ’ s membership of the Republican Guard nor his war time service in Iran and the Gulf under Saddam Hussein. However, having regard to the fact that he claims not to have, personally, killed anyone but only to have provided “support” (in the form of tanks and transport) to those in the “front line” (who, presumably, did) and in view of the fact that “some” former Republican Guards have been integrated into the new Iraqi army, the majority concludes that there is nothing to indicate that he would be charged with any crime before the Iraqi courts and that “there is no real risk that he would be sentenced to death” (§ 99 of the judgment ).

In its 2008 Report, Amnesty International stated, specifically, in relation to the trials of former officials that the Supreme Iraqi Criminal Tribunal (SICT) “ continued to try former senior party, army, security and Government officials associated with the previous Ba ’ ath administration headed by Saddam Hussein for gross human rights violations committed during Saddam Hussein ’ s rule .” [8] It observed that “ s everal defendants were sentenced to death af ter grossly unfair trials and three, sentence d in 2006, were executed ” . [9] In such circumstances, the distinction between front line service and front line support under the Hussein regime may be quite irrelevant if the applicant faces trial in a country whose legal culture , according to Human Rights Watch, has not yet accepted concepts like the right to a credible defence nor committed itself to meeting basic standards of due process . [10]

The applicant also claims that if returned to Iraq he would face a real risk of being killed, extra-judicially, by Shi ’ a militia groups who are actively looking for people with his background and killing them because of their association with the former regime. He claims that two militia leaders were executed by the former regime following reports written by him when he was an officer in the Republican Guard. In assessing the risk posed to the applicant by Shi ’ a militia groups, the majority, firstly, finds his account about the writing of reports on insurgency leaders to be “not very credible” because of the late reference thereto in the overall proceedings. I disagree. The applicant had no reason to furnish details of such reports in his initial asylum interviews in 1993 because his fear, at that time, had nothing to do with the activities of Shi ’ a militia groups. It was grounded, instead, upon the likely consequences he would face, having deserted Hussein ’ s regime. His first reference to a fear of persecution from Shi ’ a militias came, understandably, much later on in the proceedings (January 2004) in the aftermath of the fall of the former dictator.

However, even if doubt surrounds such detail as the writing of two reports, no doubt, whatsoever, has been cast over the fact that the applicant was an officer and a major within the Republican Guard and a “card carrying member” of the former regime. According to the respondent State ’ s own information regarding extrajudicial attacks, there is a “ great risk ” of being affected in large parts of Iraq . Its sources confirmed that “S everal Shi a extremist militia groups , often on dubious grounds, more or less systematically, and very extensively sought out people who were guilty of being “fellow travellers” of the earlier regime and of aggres sion under that regime ”. [11]

The majority recognises “ that several Shi ’ a militia groups, and in particular the Mahdi Army, have sought revenge for previous wrongdoing against the Shi ’ a population without the Iraqi authorities having been able to prevent it ” (§ 102 of the judgment ) . Yet, in response to the applicant ’ s claim concerning the risk posed to him by such groups and notwithstanding the respondent State ’ s confirmation of their extensive pursuit of former “fellow travellers”, the majority concludes that there is no real risk based on the “mere fact” of the applicant ’ s membership of the Republican Guard. They rely, inter alia , upon the fact that one such militia group, the Mahdi Army, has introduced a ceasefire over a year ago. The judgment remains silent, however, on the risk posed by the several other militia groups who have entered into no such ceasefire. Consequently, the assessment of the risk of the applicant being killed or ill treated by Shi ’ a militias, in my view , falls short of the “rigour” that is required as a matter of law.

Where an applicant adduces evidence capable of proving that there are substantial grounds for believing that if deported he would be exposed to a real risk of treatment contrary to Article 3, it is for the respondent government to dispel any doubts about it ( NA v. the United Kingdom , cited above, § 111) (emphasis added). Instead of dispelling doubts about the evidence of the risks alleged, the respondent State ’ s information, as cited above, tends to endorse the applicant ’ s claim. Additionally, the applicant has cited as evidence the fact that on 23 May 2007 Talal Karim Tobi was executed. This execution, he claims, was broadcast on Iraqi television. The applicant stated that he knew Mr Tobi and that he was of the same background as the applicant, namely, “a Christian officer who was a member of the Republican Guard”. [12] There is nothing in the respondent State ’ s submissions either addressing this matter or seeking to distinguish it from the instant case, let alone dispelling any doubts about it. Accordingly, the requirement of the principle set out in NA v . the United Kingdom has not, to my mind, been met.

Assessment of Risk Based on Religious Affiliation

In its conclusion that the applicant would not face a real risk of persecution based on his religious affiliation, the majority refer to the fact that “ there is no State sanctioned persecution of Christians ” (§ 97 of the judgment ). That not being the requisite test, however, they proceed to find that protection from the Iraqi authorities would be available, if necessary. Their conclusion, in this regard, is difficult to reconcile with such objective evidence as is available. In its decision on admissibility in May of this year, the Court noted the increase in violence and threats against Christians in Iraq . [13] The evidence available, today, indicates a deterioration rather than an improvement in the situation. In October 2008, twelve Christians were killed in Mosul and others were threatened to leave the city. Consequently, some 11,000 Christians have fled notwithstanding directions from the Iraqi Prime Minister ordering the police and the army to protect such minorities (§ 67 of the judgment ).

Reports from the British Home Office UK Border Agency (UKBA) and the International Minority Rights Group (MRG) also confirm that Iraq ’ s Christians are threatened and targeted as a minority group, particularly, in Baghdad . [14] According to the MRG Report of 2008 “ Iraq ’ s Christian minorities ( ... ) are now all under severe threat .” [15] While making up 4 per cent of the overall population, it is claimed that they constitute 40 per cent of Iraqi refugees. [16] In the light of such evidence and the respondent government ’ s failure to “dispel any doubts” about it, once again, the requirement set out in NA v . the United Kingdom has not been met and the assessment of the risk, in my view , lacks the “rigour” required as a matter of law.

Assessment of the Risk of Retrial

That same deficiency is also apparent, to my mind, in the majority ’ s reasoning on the applicant ’ s claim that he fears a retrial in Iraq in relation to the death of his wife. On the current status of the law in Iraq , the respondent State has submitted the following. The death penalty was reintroduced in 2004 for certain offences, including murder. It is difficult to give an opinion on the probability of a death sentence and its enforcement, other than to say that its use has increased. [17] It is not clear which legislation is applied in Iraqi courts. [18] It is not known whether a legal provision of the 1969 Penal Code prohibiting re-trials (without the Ministry for Justice ’ s permission) following convictions abroad is still in force. [19] It cannot be taken for granted that a person sentenced for a crime abroad can be sure, on that account, of being free in Iraq if the act is also criminal under Iraqi law. [20] Article 2 of the new Iraqi Constitution stipulates that Islam constitutes the fundamental source of justice and that no law may contradict the teachings of Islam. [21] It is very difficult to assess “tribal justice” in Iraq . [22]

Despite the doubts, uncertainties and general lack of information admitted by the respondent State in this regard, the majority concludes that there “ seems to be no reason why an Iraqi court would indict and retry the applicant ”. This conclusion is difficult to reconcile with the dearth of information concerning the risk of a retrial. All of the uncertainties surrounding this risk reflect, manifestly, the underlying reality that the Iraqi legal system is itself uncertain and that there are indications linking “ present criminal justice to past repression through the a rbitrary exercise of authority.” [23]

Given the absolute nature of the rights in issue and the acknowledged uncertainty surrounding the risk of re-trial and penalty, I cannot agree that the applicant ’ s claim in this regard can be set aside as “unsubstantiated”. An assertion of an exposure to a real risk of death and ill-treatment has been made. It has not been denied. The best that is available by way of response is an honest admission of uncertainty. In such circumstances, this Court should not set aside the applicant ’ s claim without being satisfied that a thorough and rigorous assessment of that risk has been conducted. If such an assessment is not possible then the doubt has not been dispelled and the applicant should not be exposed to facing the risk alleged.

Because of his official rank within Saddam Hussein ’ s Republican Guard, his consequent interest to Shi ’ a militias, his membership of the minority Christian faith and his possible retrial in a country which has recently reintroduced the death penalty for the offence in question, the applicant has, in my view, produced cumulative evidence capable of proving that there are substantial grounds for believing that , if deported , he would be exposed to a real risk of treatment contrary to Article s 2 and 3 . I t was for the respondent State “ to dispel any doubts about it ”. This has not been done. Therefore, having regard to his personal circumstances and against the background of the general situation in Iraq today, I am satisfied that it has been established, on the balance of probabilities, that there would be a violation of the applicant ’ s rights under Articles 2 or 3 of the Convention if the decision to deport him were to be enforced.

[1] Saadi v Italy , § 130.

[2] See UNHCR, Strategy for the Iraq Situation , (Revised 1 January 2007); and UNHCR, Addendum to UNHCR’s Eligibility Guidelines for Assessing the International Protection Needs of Iraqi Asylum-Seekers , (UNHCR, Geneva, December 2007); Amnesty International Report 2008, The State of the World’s Human Rights ; Human Rights Watch The Quality of Justice: Failings of Iraqi’s Central Criminal Court , December 2008.

[3] See UNHCR, Addendum to UNHCR’s Eligibility Guidelines for Assessing the International P rotection Needs of Iraqi Asylum-Seekers , (UNHCR, Geneva , December 2007), p. 10.

[4] Ibid., p. 6.

[5] Ibid.

[6] UNHCR, Strategy for the Iraq Situation , (Revised 1 January 2007), p. 3, § 11.

[7] Ibid., § 12.

[8] Amnesty International Report 2008, The State of the World’s Human Rights, p . 163.

[9] Ibid.

[10] Human Rights Watch, The Quality of Justice: Failings of Iraqi’s Central Criminal Court , December 2008 , p. 3.

[11] Government’s Observations on Admissibility and Merits, 27 April 2007, § 51; see also,  § 60 of Judgment.

[12] Applicant’s Observations on Admissibility and Merits, 20 June 2007.

[13] Decision of 13 May 2008, § 61 .

[14] UK Border Agency Country of Origin Information Report: Iraq , 3 September 2008, pp. 134-137.

[15] International Minority Rights Group Report, 2008.

[16] Ibid.

[17] Government’s Observations on Admissibility and Merits, 27 April 2007, § 50.

[18] Ibid., § 38.

[19] Ibid.

[20] Ibid., § 52.

[21] Ibid.

[22] Ibid., § 38.

[23] Human Rights Watch, The Quality of Justice: Failings of Iraqi’s Central Criminal Court , December 2008, p . 3.