DISSENTING OPINION OF JUDGE POWER-FORDE JOINED BY JUDGE ZUPANČIČ

For the same reasons as those set out in my dissenting opinion in the case of M.Y.H. and Others v. Sweden , I voted against the majority in finding that Article 3 would not be breached in the event that the deportation order made in respect of this applicant were to be executed.

My dissent was based on the failure of the majority to test whether the requisite guarantees, as required by the Court ’ s case law prior to a deportation based on internal flight options, were established in this case.

However, apart from that question of principle in relation to internal flight options, I have serious doubts as to whether the applicant ’ s deportation would, in any event, be in compliance with Article 3 of the Convention. As both an academic and a Christian he comes within those categories of persons deemed by the UNHCR to be ‘ likely to be in need of international refugee protection ’ .

The applicant is a 40-year-old Christian academic with a degree in mechanical engineering and who worked at a university in Baghdad. He has two school-aged children and a wife who live in Iraq. He claims to have been a target of threats from individuals in the Iraqi Islamic Party (IIP). He complains about the attempted kidnap of his daughter in June 2006 and his attempts to seek the assistance of the police. Subsequently, his family received a letter wherein they were denoted as “Christian traitors” and he was threatened to leave his job or be killed. This he also reported to the police and he moved into hiding with relatives. He claims that the Chairperson of a specific Committee upon which he worked was kidnapped and killed on 16 July 2006 and that other members of the Committee were similarly threatened. In October 2006, the work of the Committee having ended, the applicant fled to Syria.

The applicant claims that his parents were in Baghdad in 2008 when they were shot at and his father was kidnapped and tortured by assailants who demanded the disclosure of the applicant ’ s whereabouts. The applicant has presented evidence that, subsequently, his parents were recognized by UNHCR as refugees in Syria. The applicant further claims that in December 2008 he received threatening messages on a website and was warned by the Islamic Brigade against returning to Iraq.

There are sufficient indicators in this case to raise a serious question as to whether the applicant ’ s forcible return to Iraq, even to the Kurdish region, would jeopardise the applicant ’ s safety and would expose him to a risk of treatment that would be in violation of Article 3.