SEPARATE OPINION OF JUDGE DE GAETANO

1. I have voted with the majority in this case, namely that there would be no violation of Article 3 of the Convention in the event that the applicant were deported, provided , however , that he is not returned to parts of Iraq situated outside the Kurdistan Region of that country (see point 2 of the operative part of the judgment).

2. My vote necessarily assumes and presupposes that the respondent Government, being fully aware of the case-law of the Court, intend to comply in good faith with the same. Indeed, in their memorial of 14 October 2011, the respondent Government, referring to the internal relocation alternative it was proposing to the Court, and referring in particular to Salah Sheekh v. the Netherlands (no. 1948/04, 11 January 2007), expressly noted (and I quote from paragraph 55 of the memorial): “However, as a precondition for relying on an internal flight alternative, certain guarantees have to be in place: the person expelled must be able to travel to the area concerned, gain admittance and settle there, failing which an issue under Article 3 may arise.”

3. The Court has accepted this alternative as proposed by the responde nt Government (see paragraphs 57 and 67 to 75 ). In doing so, and in my understanding, the Court has also accepted the implied undertaking of the respondent Government that they will ensure that all three conditions mentioned above – safe travel and admittance to the Kurdistan Region, and the real possibility of settling there – are in place before the applicant is put on one of the f lights indicated in paragraph 72 .

4. The same considerations apply , mutatis mutandis , to my vote in W.H. v. Sweden (no. 49342/10).

DISSENTING OPINION OF JUDGE POWER-FORDE

1. I voted against the dispositive provision insofar as Article 3 is concerned. The provision in question refers to only one of three guarantees required under the Court ’ s case law as preconditions for reliance upon ‘ internal relocation ’ as a safe alternative for an asylum seeker whom a respondent state wishes to deport. The relevant principles were articulated in Salah Sheekh v. the Netherlands and confirmed in Sufi and Elmi v. the United Kingdom . [1] As a precondition for relying on an internal flight alternative, the following guarantees must be in place: -

(i) the person to be expelled must be able to travel safely to the area concerned;

(ii) he or she must be able to gain admittance to the area concerned; and

(iii) he or she must be able to settle in the area concerned.

2. As noted in M.Y.H. and Others v. Sweden, [2] for this Court to require that ‘ guarantees ’ be in place before deportations can proceed on the basis of internal relocation, is to set a high threshold of evidence in terms of a returnee ’ s future safety. ‘ Guarantees ’ are not synonymous with nor can they be satisfied by mere likelihoods, chances or positive indications. This is rightly so given the seriousness of what is in issue in forcibly returning a person with a clear history of persecution in his home country to a different region therein. It is entirely appropriate that the Court should and has set the bar at the level of ‘ guarantee. ’

3. In support of its position, the majority refers to a number of published reports on the situation in Iraq. In view of the volatile and rapidly changing security situation in the region such reports are at risk of becoming quickly outdated. It is the situation that prevails at the date of deportation that is relevant for the purposes of an assessment under Article 3 of the Convention.

4. The majority relies, in particular, on information contained in the March 2012 Report of the Danish- UK immigration authorities (§ 39 ). This Report was based on a fact finding mission that described the situation as it was in Iraq in November 2011—well over two years ago. The joint authorities then reported that an Arab ’ s need to provide a reference person at the KRG checkpoint arose ‘ when the situation was more precarious ’ and that the requirement to have such a reference person ‘ was abandoned two or three years ago . ’ Given the date of the fact-finding mission, one can only deduce that the practice was, allegedly, abandoned in or about 2008/2009 when the ‘ more precarious ’ situation of previous years had eased somewhat.

5. However, as of today, instability and insecurity have, once more, taken hold in major parts of Iraq. It is common knowledge that the situation in the country has deteriorated significantly during the last 12 months. 2013 was the worst year for civilian casualties since t he height of the war in 2006. [3] Given the rapid escalation in violence and the general volatility in Iraq today, the situation as it stands can only be considered as be ing, once again, ‘ precarious. ’ Thus, to my mind, the fact that the ‘ sponsor ’ requirement may have been abandoned by the Kurdish authorities during comparatively safer times, is a rather fragile basis on which to conclude that a person with this applicant ’ s profile would have little difficulty in gaining admission to the Kurdistan region today.

6. Indeed, on the procedures for entry into the KRG area, the Finnish-Swiss immigration authorities noted in a joint Report of February 2012 that the ‘ sponsor ’ requirement had not been abandoned for a particular category of persons. On the basis of their own fact-finding mission, those authorities noted that (as of May 2011) ‘ single male Sunni Arabs ’ who are without a sponsor are refused entry into the KRG area (§ 38 ).

7. In view of the foregoing, the probability of this applicant being granted permission to enter and remain in the Kurdistan region in the absence of any sponsor or reference person can hardly be considered as ‘ guaranteed ’ . Absent persuasive evidence, I cannot share the majority ’ s confidence as to his future prospects of relo cating safely in that region. There is simply insufficient material before this Court for me to conclude that as of March 2014 this single, male, Sunni, Arab will arrive safely at the KRG border, will be able to enter Kurdistan without a sponsor or reference person and will be a ble to settle there in safety.

8. The majority, for its part, ‘ notes ’ that there are regular flights from Sweden to Erbil and Sulaymaniyah without stop-overs in Baghdad or other parts of Iraq (§ 72 ). To my mind, merely noting the general regularity of flights is hardly sufficient to establish that this Court ’ s specific legal requir ements have been met.

9. Treatment that violates Article 3 is always suffered by an individual, by a specific person. Where a real risk of such treatment has been established, it is incumbent on States to ensure that measures aimed at preventing it are also ‘ spec ific ’ to the person concerned. Generalizations are not enough. The guarantees required to be in place prior to deportation in order to ensure that this particular applicant will be protected against treatment prohibited by Article 3 have not been established in this case.

[1] Salah Sheekh v. the Netherlands , no. 1948/04, 11 January 2007 and Sufi and Elmi v. the United Kingdom , nos. 8319/07 and 11449/07 , 28 June 2011

[2] See dissenting opinion in M.Y.H. and Others v. Sweden , no. 50859/10 , 27 June 2013

[3] https://www.iraqbodycount.org/database/