ECtHR: J.K. and Others v Sweden (no. 59166/12, GC) [Article 3]

Tuesday, August 23, 2016

On 23 August 2016, the European Court of Human Rights ruled in J.K. and Others v Sweden that returning an Iraqi family, who had sought asylum in Sweden, back to their country of origin could result in inhumane or degrading treatment, violating Article 3 of the European Convention on Human Rights.
The Court provided an assessment of general principles applicable to expulsion cases (paras. 77 – 105), including ex nunc evaluation of the circumstances of the case, distribution of the burden of proof and past ill-treatment as an indication of risk.

The Grand Chamber noted that in Iraq, the family (a couple and their son) had been subjected to ill-treatment by al-Qaeda. The father, who owned a construction and transport business, belonged to a systematically targeted group of persons because of his business relationship with the American armed forces. According to the Court, this provided a clear indication that the family would continue to be at risk from al-Qaeda in Iraq.  
The Court further observed that the security situation in Iraq had severely deteriorated since 2011 and 2012. As a result of the increase in sectarian violence and ISIS attacks, most areas are no longer under effective control by the Iraqi government. The Iraqi authorities would therefore be unable to adequately protect its citizens.

This item was reproduced with the permission of ECRE from the weekly ELENA legal update supported by the Fundamental Rights and Citizenship Funding Programme and distributed by email. The purpose of these updates is to inform asylum lawyers and legal organizations supporting asylum seekers and refugees of recent developments in the field of asylum law. Please note that the information provided is taken from publicly available information on the internet. Every reasonable effort is made to make the content accurate and up to date at the time each item is published but no responsibility for its accuracy and correctness, or for any consequences of relying on it, is assumed by ECRE, the IRC or its partners.



Burden of proof
Individual assessment
Inhuman or degrading treatment or punishment
Membership of a particular social group
Real risk