PARTLY CONCURRING, PARTLY DISSENTING OPINION OF JUDGE LEMMENS

I voted with my colleagues in finding that there would be no violation of Article 3 of the Convention if the deportation order were implemented.

In my opinion, however, it was not necessary to discuss the merits of the application as it should have been declared inadmissible for failure to comply with the six-month rule.

The objection raised by the Government is the same as that raised in the cases referred to in paragraph 29 of the judgment, as well in M.Y.H. v. Sweden , n o 50859/10, in which the Court handed down a judgment on 27 June 2013. At the time of adoption of the present judgment a request for referral of the M.Y.H. case to the Grand Chamber is pending before the screening panel of the Grand Chamber.

For the reasons for my dissent on the admissibility issue I refer to my separate opinion in M.Y.H. v. Sweden .

DISSENTING OPINION OF JUDGE POWER-FORDE

As in the case of T.A. v Sweden (no. 48866/10), m y reason for being unable to accept the majority ’ s conclusion in this case is based upon the cumulative weight of a number of factors that come into focus when assessing the risk of treatment prohibited by Articles 2 and 3 of the Convention.

Following the fall of Saddam Hussein the applicant joined the new Iraqi army in October 2003. His army service involved work with American forces. I ndividuals associated with or perceived to be supporting the Iraqi authorities or the US forces , as well as their families, are at risk of being targeted by non-State actors. The UNHCR considers that such individuals are, depending on the circumstances, likely to be in need of international refugee protection on account of their (imputed) political opinion. [1] The applicant ’ s general credibility was not questioned by the domestic authorities . Indeed, they accepted that documentation submitted in his case showed that he had served in the Iraqi army and that he had sustained serious injuries in grenade and bomb attacks connected with his military service ( § 8). The applicant ’ s profile thus places him, to my mind, within a specific risk category of Iraqi asylum seekers.

Having raised no serious issue as the applicant ’ s credibility, it is, to my mind, somewhat questionable as to whether the reasons given by the migration authorities in rejecting the applicant ’ s claim for asylum are sufficiently robust as to meet the level of ‘ rigorous ’ assessment required under Articles 2 or 3 of the Convention ( Chahal v United Kingdom judgment of 15 November 1996, Reports 1996-V, § 96). The domestic authorities and the Respondent State make much of a distinction drawn between attacks connected with the applicant ’ s military service and attacks based upon the applicant personally. For example, the Migration Board found that the military attacks in 2004 and 2006 were based upon his military service and not directed at the applicant ‘ personally ’ . When suicide bombers attacked a military base precisely because it was a military base and the applicant was a member of the military injured in that attack, it is difficult to see how the attack was not directed at him ‘ personally ’ precisely because he was a member of the army. The applicant left the army and was the subject of a further serious attack and a death threat while living in Mosul. Because the applicant ‘ did not know ’ the identity of his attackers or ‘ the reason for the attack ’ the Migration Board considered that this shooting was not connected to him ‘ personally ’ but was rather connected to the ‘ difficult security situation ’ . Why, precisely, are victims of targeted violence supposed to ‘ know ’ he identity of those who terrorize them in arbitrary and unpredictable attacks and how or why would such ‘ knowledge ’ strengthen an asylum claim? To be required to meet such an onerous test of knowledge of the identity of an attacker is to impose upon a person seeking asylum an unreasonable and disproportionate burden.

The majority accepts that the 2007 drive-by attack appears to have been ‘ specifically targeting ’ the applicant and his family ( § 50). Nevertheless, because it happened six ago at the height of the violence in Iraq, it considers that the applicant has not substantiated that there remains a personal threat of treatment contrary to Article 2 or 3 of the Convention should he be forcibly returned to Iraq. I disagree.

The applicant ’ s entire claim, however, is based upon the fact that he has been targeted on several occasions because of his service in the new Iraqi army and his perceived association with the US military. That such attacks occur precisely because of perceived cooperation with foreign forces or the Iraqi authorities is confirmed by international observers. [2] Furthermore, the applicant has substantiated his claim with evidence that has not been questioned by the authorities.

Despite the passage of six years, regard must be had to the serious decline in the general situation in Iraq today. The majority, whilst noting the existence of the indiscriminate and deadly violence, nevertheless, considers that ‘ the overall situation has been slowly improving since the peak in violence in 2007 ’ ( § 39) and it sees no reason to depart from the position it took over four years ago in F.H. v Sweden (no. 32621/06). I cannot share this perspective. It has been reported that 2013 has, thus far, been the deadliest year in Iraq since 2008. [3] The Interior Ministry has put the death toll for the month of November alone at 1,121 and the number of people injured at 1,349. Thus, even if one were to accept that the general situation in Iraq is not to be regarded as being sufficiently serious as to cause by itself a violation of Article 3 of the Convention in the event of an individual ’ s forcible return thereto, the significant escalation in violence this year is, nevertheless, of sufficient seriousness as to weigh heavily in the balance when assessing, cumulatively, whether this applicant would face a real risk of exposure to treatment that would violate Article 3 of the Convention.

In making the requisite assessment under Articles 2 and 3 of the Convention, I have also had regard to the fact that the applicant has sustained serious injuries and suffers significant physical and psychological pain. This has been substantiated by medical evidence. The applicant has physical disabilities and amputation of his left leg has been recommended. Whilst I accept that according to the court ’ s jurisprudence his state of health alone is not sufficient to support his claim against deportation, nevertheless I consider that, in the overall circumstances of this case, the applicant ’ s serious disability is an important factor to which regard should be had when considering his deportation to a country where random violence and terrorist attacks are widespread.

The unquestioned credibility of the applicant ’ s account coupled with his specific risk profile and viewed in the light of the deteriorating security situation in Iraq and his own serious physical disabilities, taken together, lead me to conclude that the applicant would face a real risk of being subjected to treatment contrary to Article 2 or 3 of the Convention should the Respondent State return him to Iraq at this time.

[1] UNHCR ( 21 May 2012 ) Eligibility Guidelines for Assessing the International Protection Needs of Asylum Seekers from Iraq , at page 14 and following .  These Guidelines replaced the earlier 2009 Guidelines. They were prepared based on an analysis of up-to-date and relevant information from a wide variety of sources as of the 18 th of March 2012.   Various news reports confirm that the general security situation in Iraq has deteriorated since then.

[2] See UNHCR ( 21 May 2012 ) Eligibility Guidelines for Assessing the International Protection Needs of Asylum Seekers from Iraq , at page 14 and following .

[3] See, for example, http://rt.com/news/Iraq and various other news agencies.