By: Susan Mintz
Journal of Global Rights and Organizations, Associate Articles Editor
HELSINKI, Finland — The European Court of Human Rights (“ECHR”) has sanctioned Finland in relation to the murder of an Iraqi asylum seeker. His claim for asylum was denied after Finnish authorities determined he was not likely to be in danger of persecution in Iraq. Following his expulsion to Iraq in December of 2017, within weeks of his return he was shot and killed. An application against the Republic of Finland was submitted by his daughter to the ECHR for violating Articles 2 and 3 of the Convention for the Protection of Human Rights and Fundamental Freedoms. The Iraqi asylum seeker’s daughter, who fled with him and her brother to Finland, requested the court not use her name as was referred to in the judgment as N.A.
N.A.’s father was a Sunni Muslim man from Baghdad. Under Saddam Hussein’s regime he served as an army major. After the U.S. invasion he worked with an American logistics company before becoming a civil servant in the Office of the Inspector General, where he was the only one with a Sunni background. In his last year at the Office, as the lead officer his work included conducting internal investigations, dealing with human rights crimes, and corruption.
In early 2015, a coworker physically assaulted and threatened to kill N.A.’s father following a disagreement. Shortly after the incident, his attacker was transferred to the intelligence service and promoted. In February, an attempt on his life was made when he was shot at leaving work. When the police failed to follow up on his report of the shooting, N.A.’s father resigned his job due to the lack of protection offered by the Iraqi authorities. He and his wife went into hiding after narrowly surviving a car bomb. After the applicant, N.A., escaped an attempted kidnapping, N.A. fled with her father and brother to Finland and applied for asylum.
The Finnish Immigration Service found N.A.’s father credible and accepted the facts established by his account of his history and the events leading up to his flight from Iraq. Nevertheless, his asylum claim was denied because the Service determined that attack by his coworker was a personal matter and the attempts on his life were part of the general violence in Baghdad and not specifically directed at him or related to his Sunni background. His appeals to the Administrative Court and Supreme Administrative Court were denied without permitting oral argument. Under an enforceable order of removal, N.A.’s father returned to Iraq under Finland’s voluntary returns program on November 29, 2017. Following his return, N.A. learned that her aunt’s home, where the family had been in hiding, had been attacked. She learned of her father’s murder a few weeks later.
The ECHR ruled that Finland violated N.A.’s father’s right to life under Article 2 and the prohibition on torture, inhuman or degrading treatment or punishment under Article 3 because the authorities knew or should have known that conditions in Iraq and his personal circumstances presented a real risk of persecution or death of N.A.’s father in Iraq. In reaching this finding, the ECHR rejected claims by Finnish authorities that N.A.’s father had waived all claims under the Convention for the Protection of Human Rights and Fundamental Freedoms when he accepted voluntary return, and that he failed to demonstrate a sufficient likelihood of future persecution.
While the ECHR declined to rule on whether rights under Article 2 and 3 could ever be waived, under the circumstances of this case there was no waiver of rights. To waive a right, the waiver must be under free will, unequivocal and attended by minimum safeguards. Although N.A.’s father used the voluntary return program, the court found that he did not have a genuinely free choice in the matter given that the alternative was detention and forced deportation to Iraq, which would alert the Iraqi authorities of his presence.
The ECHR also found that the Finnish Immigration Service failed to properly assess the asylum claim of N.A.’s father. By finding he credibly established the facts of his account, the Finnish Immigration Service necessarily accepted as true his background, work history, the attempts on his life and the circumstances of his flight from Iraq. However, in evaluating N.A.’s father’s claim, the authorities failed to consider the accumulation of the factors that, taken together, showed an increased risk of persecution. In particular, the ECHR noted that his account supported an inference that the return of N.A.’s father would be of interest to Iraqi authorities, as well as non-State actors, showing that he was at risk of being a target of persecution.
Violence against Sunni Muslim men by Shia militias was well documented at the time the asylum decision was made, as were killings of Iraqis who had worked with Americans. While no single factor established a risk of harm or death, taken together all the circumstances accepted by the Finnish authorities clearly established the risk to N.A’s father.
In the wake of the ruling a suspension of deportations was announced by Minister of the Interior Maria Ohisalo, and the Helsinki Police Department. Although the Finnish Immigration Service previously claimed that voluntary return to Iraq had “succeeded to a fair extent,” the agency is now reviewing 500 orders of expulsion to Iraq.
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