Erfolgreiche Beschwerde der Tochter eines irakischen Staatsangehörigen, der kurze Zeit nach seiner Rückkehr in Irak getötet wurde:
1. Nahe Angehörige sind beschwerdebefugt im Hinblick auf die Verletzung von Art 2 und 3 EMRK.
2. Wird eine Person, deren Asylantrag wegen angenommener fehlender Verfolgungsgefahr abgelehnt wurde, nach der "freiwilligen" Rückkehr in das Herkunftsland dort verfolgt und getötet, stellt dies eine Verletzung des Rechts auf Leben nach Art. 2 EMRK sowie des Verbots einer unmenschlichen und erniedrigenden Behandlung nach Art. 3 EMRK dar.
3.. Diese Menschenrechtsverletzungen sind dem Staat, der den Asylantrag abgelehnt hat, zuzuschreiben, wenn die "freiwillige" Ausreise ins Herkunftsland die einzige Alternative zur Abschiebung darstellte. Denn dann erfolgte die Ausreise nicht tatsächlich freiwillig.
(Leitsätze der Redaktion)
50. The Court notes that, according to its well-established case-law, it may be possible for a person with the requisite legal interest as next-of-kin to introduce an application raising complaints related to the death or disappearance of his or her relative in a situation in which the alleged victim of a violation has died before the introduction of the application (see Varnava and Others v. Turkey [GC], nos. 16064/90 and 8 others, § 112, ECHR 2009). In such cases, the Court has accepted that close family members, such as children, of a person whose death or disappearance is alleged to engage the responsibility of the State can themselves claim to be indirect victims of the alleged violation of Article 2, the question of whether they were legal heirs of the deceased not being relevant (see Tsalikidis and Others v. Greece, no. 73974/14, § 64, 16 November 2017, and McKerr v. the United Kingdom, no. 28883/95, ECHR 2001-III).
51. The next-of-kin can also bring other complaints, such as under Articles 3 and 5 of the Convention on behalf of deceased or disappeared relatives, provided that the alleged violation is closely linked to the death or disappearance giving rise to issues under Article 2 (see Lykova v. Russia, no. 68736/11, §§ 63-66, 22 December 2015).
52. In the present case, such a close link between the Article 3 complaints and the subsequent death of the applicant’s father does exist. Therefore the Court considers that, being the daughter of the direct victim, the applicant can legitimately claim to be an indirect victim of any omissions in her father’s case. In view of the foregoing, the Government’s objection as to the applicant’s lacking locus standi must be dismissed. [...]
57. As to the voluntary nature of the applicant’s father’s return, the Court notes that the applicant’s father left Finland on 29 November 2017, that is, at a time when the Supreme Administrative Court had not granted his request to stay the enforcement of his removal. The removal order was thus enforceable. At that point, he opted for voluntary return, a possibility available for him under section 147a, subsection 1, of the Aliens Act. His situation was therefore different from the circumstances underlying the Supreme Administrative Court’s decision KHO:2017:165 referred to by the Government (see paragraph 32 above). For the Court the fact that the applicant’s father had first lodged an application under the voluntary returns programme before submitting his application for leave to appeal before the Supreme Administrative Court cannot be regarded as decisive, either. In the light of the circumstances of the case, in particular the factual background of the applicant’s father’s flight from Iraq as acknowledged by the domestic authorities, the Court sees no reason to doubt that he would not have returned there under the scheme of “assisted voluntary return” had it not been for the enforceable removal order issued against him. Consequently, his departure was not “voluntary” in terms of his free choice. The circumstances of the present case are thus different from those in the case of Abdul Wahab Khan, cited in paragraph 54 above. It cannot therefore be held that the facts complained of were incapable of engaging the respondent State’s jurisdiction under Article 1 of the Convention. [...]
60. In the present case, the applicant’s father had to face the choice between either staying in Finland without any hope of obtaining a legal residence permit, being detained to facilitate his return by force, and handed a two-year entry ban to the Schengen area, as well as attracting the attention of the Iraqi authorities upon return; or agreeing to leave Finland voluntarily and take the risk of continued ill-treatment upon return. In these circumstances the Court considers that the applicant’s father did not have a genuinely free choice between these options, which renders his supposed waiver invalid. Since no waiver took place, his removal to Iraq must be considered as a forced return engaging the responsibility of the Finnish State (see, mutatis mutandis, M.S. v. Belgium, cited above, §§ 124-125). [...]
82. The Finnish authorities and courts found the applicant’s father’s account of the factual background of his asylum application both credible and coherent. They thus accepted that the applicant’s father could be of interest to the Iraqi authorities and/or non-State actors. In their decisions, the domestic authorities and courts extensively referred to relevant country information on Iraq. The Court observes that, as can be seen from the country information and materials publicly available to the domestic authorities and courts at the relevant time, there were then, inter alia, sectarian tensions between the Shia militia and the Sunni (Arab) Muslims; a number of incidents had been reported where Iraqis who had worked for Americans had been killed; and there was a heightened security situation in Baghdad which did not reach the level of indiscriminate violence but which in any case required decision makers to consider whether deportees’ individual circumstances might nevertheless place them at increased risk. Moreover, in general, the Iraqi authorities in Baghdad were unable and unwilling to provide sufficient protection for Sunni Muslims (see paragraphs 38-42 above). The Court observes that any of these individual factors may not, when considered separately, necessarily have given rise to a real risk. However, when taken cumulatively and when considered in a situation of general violence and heightened security concerns in Iraq at the relevant time, they could have given rise to such risk (see paragraph 77 above). It appears from the domestic decisions that such a cumulative assessment was not made at any stage by the domestic authorities and courts.
83. Even more importantly, the Court considers that the domestic authorities have not given adequate consideration to the fact that in the period preceding his decision to leave Iraq, the applicant’s father had twice experienced violent acts of a life-threatening nature, albeit that on both occasions he escaped unhurt. The Court reiterates in this context that past ill-treatment may be relevant for assessing the level of risk of future ill-treatment. Both the incident in February 2015 when the applicant’s father was shot at when leaving the Office with his driver and the car bomb which exploded in his car in April 2015 were acknowledged as facts by the Finnish authorities. However, the latter did not accept the contention that these acts were targeted at the applicant’s father. Instead, these incidents were placed exclusively in the context of the general security situation in Baghdad. Given the circumstances relating to the personal background and professional profile of the applicant’s father (see paragraphs 8 and 9 above), the Court does not see any plausible explanation as to why two serious incidents of this nature were not more carefully and specifically assessed in terms of the risk of the applicant’s father having been targeted personally. In this context, the Court also notes that the altercation between the applicant’s father and his colleague (see paragraph 9 above), was dismissed by the domestic authorities as a mere dispute between individuals, and not assessed in terms of its possible links with their respective religious affiliations and the tensions between the Shia and Sunni groups, nor with the subsequent violent events mentioned above.
84. In the light of the above observations, the Court is not convinced in the present case that the quality of the assessment conducted by the domestic authorities regarding the relevant facts and the risk to which the applicant’s father would be exposed upon removal to Iraq satisfied the requirements under Articles 2 and 3 of the Convention. It also reiterates that the Grand Chamber of the Court found a conditional violation of Article 3 in a relatively similar case concerning Iraq in August 2016 (see J.K. and Others v. Sweden, cited above).
85. Hence, the Court finds that the domestic authorities and courts were aware, or ought to have been aware, of facts which indicated that the applicant’s father could be exposed to a danger to life or a risk of ill-treatment upon his returning to Iraq. The Court therefore concludes that the Finnish authorities and courts failed to comply with their obligations under Articles 2 and/or 3 of the Convention when dealing with the applicant’s father’s asylum application.
86. There has accordingly been a violation of Articles 2 and 3 of the Convention.