CEDH · PRESS;CHAMBERJUDGMENTS;ENG — 20 janvier 2009

.s800EAC49 { font-size:12pt } .sFE10DC93 { margin-top:0pt; margin-bottom:0pt; text-align:center } .s29100277 { font-family:Arial; font-weight:bold } .s40F41F73 { margin-top:0pt; margin-bottom:0pt; text-align:right } .s32563E28 { margin-top:0pt; margin-bottom:0pt } .sBB9EE52A { font-family:Arial } .s7ED160F0 { text-decoration:none } .s653E6C45 { font-family:Arial; font-size:6.67pt; vertical-align:super; color:#0069d6 } .s4DDA3AA3 { font-family:Arial; font-weight:bold; font-style:italic } .s3DC36BA9 { font-family:Arial; text-decoration:underline; color:#0069d6 } .sA36B60A1 { font-family:Arial; font-style:italic } .sCB9E0544 { margin-top:0pt; margin-bottom:0pt; text-align:left } .sADADF4A7 { font-family:Arial; text-decoration:underline } .sC7EAD8B { font-family:Arial; font-weight:bold; text-decoration:underline } .sF6A12959 { width:33%; height:1px; text-align:left } .s2EB42ED2 { margin-top:0pt; margin-bottom:0pt; font-size:10pt } EUROPEAN COURT OF HUMAN RIGHTS   40 20.1.2009   Press release issued by the Registrar   CHAMBER JUDGMENT F.H. v. SWEDEN   The European Court of Human Rights has today notified in writing its Chamber judgment [1] in the case of F.H. v. Sweden (application no. 32621/06).   The Court held, by five votes to two, that if the decision to deport the applicant to Iraq were to be enforced, there would be no violation of Articles 2 (right to life) or 3 (prohibition of inhuman or degrading treatment) of the European Convention on Human Rights.   The Court further decided to continue to indicate to the Swedish Government under Rule   39 of the Rules of Court that it was desirable in the interests of the proper conduct of the proceedings not to deport the applicant until such time as its Chamber judgment became final or until further order. ( The judgment is available only in English. )   1.     Principal facts   The applicant, F.H., is an Iraqi national who was born in 1956 and currently lives in Sweden.   He arrived in Sweden in 1993 and applied to the Immigration Board ( Invandrarverket ) for asylum and a residence permit, claiming that he had left Iraq due to his fear of Saddam Hussein and his regime.   The applicant submitted, in particular, that he had served in the Iraqi military and had participated in the war against Iran. Allegedly transferred to an armoured tank division within the Republican Guard when the war ended in 1988, he claimed that he had never been involved in combat or political activities, his military work mainly having consisted in transport logistics. In October 1992 he had been called upon to carry out military assignments against the Shi’as in Al Ahwar. As he had felt unable to murder his own people, he had deserted and left Iraq in December 1992. The applicant also added that he was a Christian and belonged to the Ba’ath Party. He had never met Saddam Hussein personally but had been given a “Friends of Saddam” card which entitled him to certain privileges.   In May 1995, before his asylum application had been determined, the applicant was convicted by the District Court of murdering his wife and sentenced to forensic psychiatric care. The court further ordered that the applicant should be expelled from Sweden with a life-time ban on return.   Subsequently, the applicant requested the Swedish Government to repeal the expulsion order against him. After the fall of Saddam Hussein, he added that he would risk being killed due to his membership of the Ba’ath party and Republican Guard. In July 2006 the Government decided not to revoke the expulsion order as it found that there was no impediment to its enforcement or any other special reason under the Aliens Act to revoke it.   In August 2006 the applicant requested the European Court of Human Rights to indicate to the Swedish Government, under Rule 39 of the Rules of Court, a suspension of his expulsion to Iraq, alleging in particular that he would be executed or tortured and imprisoned if returned to his home country. The Court subsequently decided to apply Rule   39 and suspend the applicant’s expulsion until further notice.   2.     Procedure and composition of the Court   The application was lodged with the European Court of Human Rights on 15   August 2006 and declared admissible on 13 May 2008.   The President of the Chamber and subsequently the Chamber decided to apply Rule 39 of the Rules of Court. The case was further granted priority under Rule   41 of the Rules of Court.   Judgment was given by a Chamber of seven judges, composed as follows:   Josep Casadevall (Andorra), President , Elisabet Fura-Sandström (Sweden), Corneliu Bîrsan (Romania), Boštjan M. Zupančič (Slovenia), Egbert Myjer (Netherlands), Ineta Ziemele (Latvia), Ann Power (Ireland), judges , and also Santiago Quesada , Section Registrar .   3.     Summary of the judgment [2]   Complaints   Relying on Articles   2 and   3, the applicant alleged that, if deported from Sweden to Iraq, he would face a real risk of being killed or subjected to inhuman treatment and torture on account of his Christian faith and background as a member of the Republican Guard and the Ba’ath Party, and, of being convicted a second time for the murder of his wife.   Decision of the Court   Articles 2 and 3   The Court found that the issues raised in the applicant’s case under Articles 2 and 3 were indissociable and should therefore be examined together.   The Court recognised the problematic security situation in Iraq and stressed the importance of information contained in recent reports from independent international human rights organisations or governmental sources. However, in the applicant’s case, it held that while the general situation in Iraq was insecure and problematic, it was not so serious as to cause, by itself, a violation of Article 3 if the applicant were to be returned there. Therefore the Court had to establish whether the applicant’s personal situation was such that his return to Iraq would be in breach of Articles 2 or 3.   As regards the applicant’s claim that he would risk being killed because of his Christian faith, the Court takes into account that there have been several incidents directed against Christians in Iraq. However, Christians do still congregate there and, according to the general information available, the Iraqi Government has condemned all attacks against this group. In October 2008, when 12 Christians were killed in attacks in the town of Mosul, the police and military intervened. It was therefore clear that there was no State-sanctioned persecution of Christians and, since no one had accepted responsibility for those attacks, which had also been condemned by Islamic groups, it appeared that they had been carried out by individuals rather than by organised groups.   Furthermore, the applicant had been a member of the Republican Guard and had served in the Iraq-Iran war and the First Gulf War. However, on the basis of the information submitted by the applicant, and, noting that some former Republican Guards had been integrated into the new Iraqi army, the Court found nothing to indicate that F.H. would risk being charged with any type of crime before the Iraqi courts for having served in the Republican Guard.   Concerning the applicant’s membership of the Ba’ath Party, it was not possible to establish whether or not the applicant had been a full member of the party or, if he had been, what exact level he had attained within it. However, given in particular the fact that the applicant had consistently held that he had never met Saddam Hussein or been involved in any political activities, the Court considered it highly unlikely that he had belonged to any of the higher levels of the Ba’ath Party. Moreover, the Court observed that the Accountability and Justice Act had opened the door for most former Ba’ath Party members to apply for reinstatement into the civil service. The Court further noted that the Iraqi parliament had adopted an Amnesty Law in February 2008 which had resulted in the release, so far, of over 120,000 detainees in Iraq. Accordingly, the Court considered that the applicant did not face a real risk of being persecuted, and even less of being sentenced to death, for having been a member of the Ba’ath Party.   As regards the applicant’s allegation that he risked being killed extrajudicially by Shi’a militia groups, the Court observed, in particular, that the applicant had maintained all along that, from 1988 until he had left Iraq, he had been working in a transport division with logistics and that he had deserted from the army because he had not wanted to take part in the attacks against the Shi’as. Therefore, the applicant had not personally carried out any violent or criminal acts against the Shi’a population for which they would seek revenge.   As concerned the applicant’s fear of being convicted a second time in Iraq for the murder of his wife, the Court reiterated that the crime took place in Sweden and that the applicant had been convicted and purged his sentence in that country. The Court also noted that, despite some uncertainties surrounding its current status, the Iraqi Penal Code of 1969 prohibited retrial of a person who had been convicted by final judgment in another country.   Consequently, the Court found that the implementation of the deportation order against the applicant would not give rise to a violation of Articles 2 or 3.   The Court further considered that the indication made to the Swedish Government under Rule   39 of the Rules of Court had to remain in force until the Chamber judgment became final or until the Panel of the Grand Chamber of the Court accepted any request by one or both of the parties to refer the case to the Grand Chamber under Article 43.     Judge Power expressed a dissenting opinion joined by Judge Zupančič, which is annexed to the judgment.     ***   The Court’s judgments are accessible on its Internet site ( http://www.echr.coe.int ).   Press contacts Tracey Turner-Tretz (telephone: 00 33 (0)3 88 41 35 30) Paramy Chanthalangsy (telephone: 00 33 (0)3 88 41 28 30) Kristina Pencheva-Malinowski (telephone: 00 33 (0)3 88 41 35 70) Céline Menu-Lange (telephone: 00 33 (0)3 90 21 58 77)   The European Court of Human Rights was set up in Strasbourg by the Council of Europe Member States in 1959 to deal with alleged violations of the 1950 European Convention on Human Rights. [1] Under Article 43 of the Convention, within three months from the date of a Chamber judgment, any party to the case may, in exceptional cases, request that the case be referred to the 17 ‑ member Grand Chamber of the Court. In that event, a panel of five judges considers whether the case raises a serious question affecting the interpretation or application of the Convention or its protocols, or a serious issue of general importance, in which case the Grand Chamber will deliver a final judgment. If no such question or issue arises, the panel will reject the request, at which point the judgment becomes final. Otherwise Chamber judgments become final on the expiry of the three-month period or earlier if the parties declare that they do not intend to make a request to refer. [2] This summary by the Registry does not bind the Court.