European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR)
In a series of asylum and subsidiary protection cases, the decisions made by the European Court of Human Rights and by the relevant national authorities on issues relating to the risk of honour based violence and around internal relocation alternatives seem controversial. The case of DNMf1 brought before the Swedish authorities, ended up at the European Court of Human Rights. In this case the applicant, a Kurdish Sunni Muslim man, had a Sunni Muslim girlfriend. Since the brothers of the girlfriend had not approved of him, they had kept their relationship secret, until the lovers were caught hugging each other by the brothers. The brothers attacked the man with scissors. The brothers told him that he
had offended their honour and that it would only be restored if they killed him. The applicant was hospitalised for a week. The brothers burnt down his shop and assaulted his father. The applicant reported the incident to police; however, they told him that they could not help him as it was an honour based issue. He then went into hiding and subsequently left Iraq for Sweden, where he applied for asylum. Yet the claim for asylum and subsidiary protection failed because the European Court of Human Rights found that the applicant should be able to find a relocation alternative in southern or central Iraq where the living conditions would be reasonable for him. In connection with this, the Court noted that he was a young man without any apparent health problems.[1] The European Court of Human Rights stated that it ‘finds it reasonable to assume that the passing of time has to some degree reduced the threat against the applicant.’
When considering this case, the Migration Court in Sweden also stressed that ‘two years had passed since the attack on the applicant’ and held that the interest from the woman’s family had probably diminished. The risk that the applicant would be subjected to revenge upon returning to Kirkuk ‘could, however, not be disregarded.’ However, Idriss and Warrick go against such a view, arguing that a lapse of time does not necessarily reduce the desire for revenge in honour crimes. Idriss cites an example of a ‘death sentence’ hanging over a woman 20 year after the initial ‘dishonouring’ event, who was still murdered once she had been located. Another example provided is that of a girl whose house was burned down in an honour based violence attack. Although she survived and escaped the city, 15 years later she was found and murdered in another city. Therefore, considering a lapse of time as justification for deportation will expose the applicant to risk of being killed. In such circumstances, an applicant with a death sentence hanging over her or him is safer abroad than in the home country. Thus, such a consideration has to be made by the courts when deciding cases on this issue.
Similarly, in another European Court of Human Rights case, of SA, again brought before the Swedish authorities, the applicant’s asylum and subsidiary protection claims had tailed. The applicant in this case was an Iraqi national who had applied for asylum in Sweden in 2008. The applicant had submitted that he was a Sunni Muslim from Nasriya, located in the Thi-Qar district in southern
Iraq. He had been in a relationship with a woman who was a Shiah Muslim. He had asked her family’s permission to marry her on three occasions in 2007 but had been refused because he was a Sunni Muslim. After his first proposal, two of the woman’s cousins assaulted him and warned him against proposing again. In late 2007, the couple decided to elope. They travelled to Baghdad, where they stayed with a relative of the applicant for one week. They falsely told their families that they had married, and that the woman had returned to her parents’ house with the promise that the family would allow the marriage. Meanwhile, the applicant returned home with his brothers. Some days later, four unidentified persons shot at their house, but left after the applicant’s brother fired back. The next day, the applicant drove past the woman’s house, and discovered that she had been killed. Her hair and her hand with her engagement ring on it had been hung on the front door of her house, as a sign that the family had cleansed their honour. The woman had been killed by her father and two of her cousins. One of the woman’s cousins was involved with the Badr Organisation and another with the Al Daawa party, and they had asked the militia to harass the applicant. His family’s house had been visited daily by the woman’s relatives, and they had left a threatening letter stating that they wanted his head. They had also entered his family’s house to look for him. The applicant had left the region after a few days in hiding. In 2008, his father had received a threatening letter, urging him to surrender the applicant or else leave his home. His mother had been shot and killed by relatives of the woman in January 2009. The shot had been aimed at another relative but had hit her instead. Their house had subsequently been burnt down. On 22 June 2009, the Migration Board did not find the case credible and so rejected the applicant’s claim for asylum and ordered his deportation to Iraq. It noted that the first shooting at the applicant’s home had been perpetrated by unknown persons. The threatening letter addressed to his father was unsigned, while the one addressed to the applicant had not been submitted to the Board. It had not been made probable that the death of the applicant’s mother was connected to him. The woman’s family had, according to the applicant’s own statements, ‘washed away their shame’ by killing the woman, and the Board therefore presumed that the family considered their honour restored. The Board further highlighted that the applicant had been offered protection by his own family and clan. Furthermore, he had been able to live in Baghdad for a certain period of time without being subjected to threats or violence. Considering the presented evidence, the European Court of Human Rights court also decided that he would be able to relocate to other regions in Iraq.
1
Ibid, paras 54 and 56.
powers. Thus, in many cases, a person who is persecuted by a family or clan can be safe in another part of the country. One factor possibly weighing against the reasonableness of an internal relocation alternative is if a person is persecuted by a powerful clan or tribe with influence at governmental level. However, if the clan or tribe in question is not particularly influential, an internal relocation alternative might be reasonable in many cases. But with the family in question, there was no evidence to support the applicant’s claim that it was powerful and had links to the authorities or the militia. The applicant did not put forward any documentary evidence to support his claim in this regard, nor did he give any detailed information regarding the woman’s relatives and their alleged position in Iraqi society. Therefore, the Swedish government’s immigration authorities pointed to the Kurdistan Region as a possible internal relocation alternative. Yet the applicant, who was neither a Kurd nor a Christian, and apparently did not have any connections in the region, disputed that he would be able to enter that region.[2]
Furthermore, the European Court of Human Rights concluded that substantial grounds for believing that the applicant would be exposed to a real risk of being subjected to treatment contrary to Article 2 or 3 of the Convention if deported to Iraq, had not been shown in the present case. Accordingly, the implementation of the deportation order against him would not give rise to a violation of these provisions. The same assumption made in the case of DNM was also present in the SA case, where the European Court of Human Rights found ‘it reasonable to assume that the passing of time has to some degree reduced the threat against the applicant.’ This was acknowledged in the dissenting judgment of Judge Power-Forde, joined by Judge Zupancic, who stated:
The majority accepts that, in view of the passage of time since the date of the attacks upon the applicant, it would be ‘reasonable’ to assume that the applicant is no longer at the same risk of ill treatment by members of his former fiancee’s family (§36). The perpetrators of the crimes visited upon the applicant’s fiancee cannot be considered as ‘reasonable’ people and, to my mind, it cannot be assumed that the passage of time has abated their desire for revenge.
The case AA and Others'1* illustrates the fact that being an independent woman with financial means does not diminish the risk of honour killing. In this case, both asylum and subsidiary protection claims failed before the Swedish courts, where it was held by the European Court of Human Rights that there was an internal relocation alternative available to the applicants. The applicants, a mother
and her five children, complained that, if deported from Sweden to Yemen, they faced a real risk of being the victims of honour based crimes in violation of Articles 2 and 3 of the Convention. The first daughter was already a victim of forced marriage, and the younger two daughters were at risk of forced marriage. Two of the applicants were her sons. The mother claimed that women had no freedom in Yemen and that her husband would kill her if she were returned, since she had dishonoured him by leaving the country with their daughter (the one that was already a victim of forced marriage; she had left her husband and run away with her mother) and without his permission. No one would be able to protect her and her daughter. The court stated that there were inconsistencies in the stories presented and questioned the credibility of their case. The Swedish authorities found that there was not enough information presented to show that the applicants were in need of protection in Sweden.[3] Inter alia, there were concerns about the authenticity of the documents submitted (81) and unexplained reasons for not obtaining the copies of their passports from the Swedish Embassy in Riyadh.
With regards to the first applicant (the mother) the Court agreed with the (Swedish) government’s view ‘that the first applicant has shown proof of independence by going to court in Yemen on several occasions to file for divorce ... and also shown strength by managing to obtain the necessary practical and financial means to leave Yemen.’ Yet women showing their independence by filing for divorce and managing to obtain the necessary practical and financial means does not diminish the risk of honour killing. On the contrary, in honour based patriarchal communities, women acting independently and seeking divorce are actually triggers for such crimes.
As can be seen, when the asylum and subsidiary protection applications fail, the relevant government immigration authorities and courts decide whether there is indeed available an internal relocation alternative (also known as internal flight). However, such a suggestion requires further examination, and the Contracting State needs to make sure that the applicant’s human rights under Article 3 will not be violated as a result of deportation. According to Article 3, no one shall be subjected to torture or to inhumane or degrading treatment or punishment. Thus, when deciding a subsidiary protection claim, it is stated by the European Court of Human Rights that Article 3 does not preclude Contracting States from relying on an internal flight or relocation alternative in their assessment. However, the Court also states that reliance on such an alternative does not affect the responsibility of the expelling State to ensure that the applicant is not, as a result of its decision to deport, exposed to treatment contrary to Article 3 of the Convention. In SA v Sweden the ruling was:
Therefore, as a precondition of relying on an internal flight or relocation alternative, certain guarantees have to be in place: the person to be expelled must be able to travel to the area concerned, gain admittance and settle there, failing which an issue under Article 3 may arise, the more so if in the absence of such guarantees there is a possibility of his or her ending up in a part of the country of origin where there is a real risk of ill-treatment.[4] However, lack of a uniform and principled application of the internal relocation alternative internationally may pose a danger to women. For instance, in the deportation decisions which emphasised the fact that since applicants were ‘educated and resourceful,’ it was believed that they could look after themselves.
This was highlighted in the European Court of Human Rights’ dissenting judgment in the already mentioned case of A A and Others.[5] The dissenting judgment of Judge Power-Forde provided that: The fact that the gender-based violence occurs in Yemen in no way diminishes the relevance or applicability of the Opuz
Therefore, deportation by a Contracting State may give rise to an issue under Article 3, and hence engage the responsibility of that State under the Convention where substantial grounds have been shown for believing that the person concerned, if deported, faces a real risk of being subjected to treatment contrary to Article 3. In such a case, Article 3 implies an obligation not to deport the person in question to that country. Objectively, the policies, practices and laws of Yemen demonstrate that systemic and structural discrimination in the form of gender-based violence exists in that country and that breaches of the most fundamental human rights of women and girls are common. Judge Power-Forde found the applicants’ history credible. Therefore, she concluded that ‘the real risk of ill treatment occurs in a country' whose “traditions” endorse such practices against women in no way diminishes the fact that domestic and gender-based violence violates Article 3.’
The Opuz case clarified and highlighted very crucial difficulties that women face in honour based patriarchal countries. In this case, the Court noted that perpetrators of domestic violence do not receive appropriate punishment, as the courts lower sentences for crimes committed in the name of honour. Whether the discrimination is intentional does not matter; the widespread failure of police officials to act disproportionately impacts women. For these reasons (among others), the Court recognised that there was a general and discriminatory judicial passivity in Turkey, which denied women equal protection under the law. Such criteria, as emphasised by Judge Power-Forde above, will be among the main criteria when assessing the deportation of applicants, instead of applicants’ other attributes such as her/his education and independence.
