CEDH · CASELAW;JUDGMENTS;CHAMBER;ENG — 14 novembre 2019

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display:inline-block } .sC1AC44A4 { width:228.11pt; display:inline-block } .sF6A12959 { width:33%; height:1px; text-align:left } .s85226119 { margin-top:0pt; margin-bottom:0pt; text-align:justify; font-size:10pt } .sB343B0AA { font-family:Arial; font-size:6.67pt; vertical-align:super; color:#000000 } .s8EB5F569 { font-family:Arial; font-size:6.67pt; vertical-align:super }     FIRST SECTION CASE OF N.A. v. FINLAND (Application no. 25244/18)   JUDGMENT   Art 2 • Art 3 • Expulsion • Sunni Muslim killed shortly after removal to Iraq where he had previously suffered life-threatening incidents • Inadequate assessment of risks with regard to tensions between Shia and Sunni Muslims   This judgment was revised in accordance with Rule 80 of the Rules of Court in a judgment of 13 July 2021.   STRASBOURG 14 November 2019 FINAL   14/02/2020   This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of N.A. v. Finland, The European Court of Human Rights (First Section), sitting as a Chamber composed of:   Ksenija Turković, President,   Krzysztof Wojtyczek,   Aleš Pejchal,   Pauliine Koskelo,   Tim Eicke,   Jovan Ilievski,   Raffaele Sabato, judges, and Abel Campos, Section Registrar, Having deliberated in private on 15 October 2019, Delivers the following judgment, which was adopted on that date: PROCEDURE 1.     The case originated in an application (no. 25244/18) against the Republic of Finland lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by an Iraqi national, Ms N.A. (“the applicant”), on 23   May 2018. The President of the Section acceded to the applicant’s request not to have her name disclosed (Rule   47   §   4 of the Rules of Court). 2.     The applicant was represented by Ms Marjaana Laine, a lawyer practising in Helsinki. The Finnish Government (“the Government”) were represented by their Agent, Ms Krista Oinonen, from the Ministry for Foreign Affairs. 3.     The applicant alleged, in particular, that her late father’s expulsion to Iraq violated Articles 2 and 3 of the Convention, and that her father’s expulsion and his violent death caused her considerable suffering under Article 3 of the Convention. 4.     On 13 September 2018 notice of the application was given to the Government. THE FACTS     THE CIRCUMSTANCES OF THE CASE 5.     The applicant was born in 1996 and lives in Finland. 6.     The applicant’s complaints mainly concern the fate of her father who died in December 2017 in Iraq. Background of the case 7.     The applicant’s father, born in 1971, was a Sunni Muslim Arab from Baghdad. He served as a Major in the army under Saddam Hussein’s regime until 2002. After the fall of Saddam Hussein’s regime, he worked for an American logistics company. From 2007 he was employed by the Iraqi Ministry of the Interior and worked there as an investigator of the Office of the Inspector General (hereinafter “the Office”). He was the only civil servant in the Office with a Sunni background. During his tenure at the Office, he was promoted to lieutenant colonel. From 2008 onwards he questioned hundreds of persons suspected of having committed crimes. 8.     In March 2014 the applicant’s father became a leading officer at the Office, whose task was to conduct internal investigations and to deal with human rights crimes as well as corruption. The investigations often concerned officers of the intelligence service or officers of the militia groups. His work became all the more dangerous when the Shia militia gained a substantial and official position in Iraq. 9.     In early 2015 the applicant’s father was investigating his last case when he had a disagreement with one of his colleagues in the Office, Mr A., who allegedly belonged to the Badr Organisation. [1] Mr A. insulted him, physically assaulted him and threatened his life. After the incident Mr A., who was of Shia background, was transferred to the intelligence service and was promoted. In February 2015 there was an attempt to kill the applicant’s father by shooting him when he was leaving the Office with his driver. He reported the shooting to the police but subsequently realised that no investigation had been started and that the case file had been archived. He understood that he had no chance of receiving justice or protection from the Iraqi authorities and therefore he resigned from his post on 5 March 2015. 10.     In April 2015 there was another attempt to kill the applicant’s father when a car bomb exploded in his car only minutes after he and his wife had got out. After this incident, the family left their house and went into hiding in several residences belonging to the wife’s relatives. In May 2015 the applicant was the victim of an attempted kidnapping but she was able to escape. She stopped going to school and went into hiding with the rest of the family. In August 2015 the applicant’s father, his adult son and the applicant managed to flee from Iraq. The applicant’s mother and two minor sisters stayed in Iraq and remain in hiding. 11.     On 2 September 2015 the applicant, her father and her brother arrived in Finland. 12.     The applicant was married in Finland in October 2015 and has two small children born in 2016 and 2017 respectively. Asylum proceedings 13.     On 3 September 2015 the applicant’s father sought international protection in Finland. 14.     On 16 December 2016 the asylum application of the applicant’s father was rejected by the Finnish Immigration Service (Maahanmuuttovirasto, Migrationsverket ) which ordered that he be expelled to Iraq, his country of origin. In its reasoning, the Immigration Service accepted as established facts the account of the applicant’s father’s background, his employment history and the incidents that had taken place in Iraq (see paragraphs 9 and 10 above). There was no issue of credibility. Concerning Mr A., the Service found that the disagreement had been between two private individuals and that the allegation that Mr A. belonged to the Badr Organisation was only based on hearsay. Moreover, the Service accepted that the shooting at the applicant’s father’s car and the car bomb attack had taken place, but concluded that those incidents had nothing to do with his personal circumstances or background. As regards the work performed for an American company, the Service considered that this could have given rise to problems before 2011, but since the applicant’s father had later been able to obtain a post in the Ministry of the Interior, there was no indication that he was the subject of any special interest from the authorities. The Service acknowledged that Sunni Arab men were unlikely to obtain protection from the authorities in Iraq. However, the applicant’s father had not brought up any problems relating to his Sunni background, other than the argument with Mr A. In conclusion, the Service did not accept that the applicant’s father would be in danger of persecution upon return to Iraq. 15.     By letter dated 7 February 2017 the applicant’s father appealed against the Immigration Service’s decision to the Administrative Court ( hallinto-oikeus, förvaltningsdomstolen ). 16.     On 26 September 2017 the Helsinki Administrative Court dismissed his appeal. It found that people who had worked for Saddam Hussein’s regime were no longer subject to systematic persecution. The applicant’s father had also stopped working for the American company in question more than ten years earlier. This part of his work history alone did not make it likely that he would be subject to persecution by non-State actors. The court considered it improbable that the applicant’s father would be at serious risk upon return to Iraq due to his earlier work history. As to his work at the Ministry of the Interior, the court noted that the applicant’s father had lived for several months in Baghdad after his disagreement with Mr A. and that the latter had not threatened him after the first incident. The shooting at the applicant’s father’s car, the car bomb and the alleged link between these incidents and the grounds invoked to justify his fear of persecution had only been based on his own conclusions. He did not know who the perpetrators had been, nor had he received any new threats during those three and a half months he had spent in Iraq after the shooting and the explosion. The court concluded that the shooting and the explosion had had nothing to do with him personally but with the general security situation in Baghdad. It was therefore improbable that the applicant’s father would be at serious risk upon return to Iraq due to his work at the Ministry of the Interior. His Sunni Arab background gave no reason to believe that he would be at real risk of persecution upon return to Iraq. 17.     By letter dated 18 October 2017 the applicant’s father appealed to the Supreme Administrative Court ( korkein hallinto-oikeus, högsta förvaltningsdomstolen ), requesting leave to appeal and that the court order a stay on his removal. 18.     The Supreme Administrative Court did not order a stay on removal. In respect of the merits, on 30 November 2017 the court refused the applicant’s father leave to appeal. Enforcement of the expulsion decision and the subsequent events 19.     On 12 October 2017 the applicant’s father applied for assisted voluntary return to Iraq. On the same day he signed a declaration with the Finnish representative of the International Organization for Migration (IOM) in which he agreed, in return for receiving financial aid for the return, that any agency or government participating in the voluntary return could not in any way be held liable or responsible. 20.     On 13 October 2017 assisted voluntary return was granted to the applicant’s father. On 29 November 2017 he left Finland. 21.     On 2 December 2017 the applicant learned that her aunt’s apartment, which the applicant’s family had previously used as a hiding place, had been attacked. Since then, the applicant has not been able to contact her family in Iraq. 22.     Later in December 2017 the applicant learned from a neighbour that her father had been killed. Apparently he was shot by unidentified persons on 17 December 2017. The applicant has submitted photocopies of a death certificate and a translation into Finnish, stating that the applicant’s father was deceased in a street in Baghdad and that the cause of death was three shot wounds to the head and body. The applicant has also submitted photocopies and translations of a police report concerning the fatal incident as well as of a crime report filed by the deceased’s father in Baghdad. According to the Government, the original death certificate has not been submitted to any Finnish authority or domestic court. Thus, the latter have not been in a position to verify its authenticity and origin.   RELEVANT DOMESTIC LAW AND PRACTICE Constitution of Finland 23.     According to Article 9, paragraph 4 of the Constitution of Finland ( Suomen perustuslaki, Finlands grundlag , Act no. 731/1999): “The right of foreigners to enter Finland and to remain in the country is regulated by an Act. A foreigner shall not be deported, extradited or returned to another country, if in consequence he or she is in danger of a death sentence, torture or other treatment violating human dignity.” Aliens Act 24.     Section 87, subsection 1, of the Aliens Act ( ulkomaalaislaki, utlänningslagen , Act no. 301/2004) provides the following: “Aliens residing in the country are granted asylum if they reside outside their country of origin or country of permanent residence owing to a well-founded fear of being persecuted for reasons of ethnic origin, religion, nationality, membership in a particular social group or political opinion and if they, because of this fear, are unwilling to avail themselves of the protection of that country.” 25.     According to section 88 of the Act (as amended by Act no.   323/2009): “An alien residing in Finland is issued with a residence permit on grounds of subsidiary protection if the requirements for granting asylum under Section 87 are not met, but substantial grounds have been shown for believing that the person, if returned to his or her country of origin or country of former habitual residence, would face a real risk of being subjected to serious harm, and he or she is unable, or owing to such risk, unwilling to avail him or herself of the protection of that country. Serious harm means: 1) the death penalty or execution; 2) torture or other inhuman or degrading treatment or punishment; 3) serious and individual threat as a result of indiscriminate violence in situations of international or internal armed conflicts.” 26.     Section 52, subsection 1, of the Act provides that aliens residing in Finland are issued with a continuous residence permit if refusing a residence permit would be manifestly unreasonable with regard to their health, ties to Finland or on other compassionate grounds, particularly considering the circumstances they would face in their country of origin or of their vulnerable position. 27.     Section 146a of the Act (as amended by Act no. 1214/2013) reads as follows: “For the purposes of this Act, return shall mean a process of removal from the State, during which a third country national having received a decision on refusal of entry, deportation or expulsion either leaves the State voluntarily or he or she is forcibly removed ...” 28.     According to section 147 of the Act (as amended by Act no. 1214/2013), no-one may be deported, or refused entry and sent back to an area where he or she could be subject to the death penalty, torture, persecution or other treatment violating human dignity or from where he or she could be sent to such an area. 29.     Section 147a, subsection 1, of the Act (as amended by Act no.   194/2015) provides that: “A decision on refusal of entry referred to in section 142(2) or on deportation sets a time-limit of at least seven and no more than thirty days within which the alien may leave the country voluntarily. The time-limit for voluntary return is counted from the day the decision is enforceable. The time-limit may be extended for special reasons. ...” 30.     Section 198a of the Act (as amended by Act no. 432/2009) reads as follows: “An administrative court or the Supreme Administrative Court may decide that an appeal relating to international protection expires if the appellant has left Finland at his or her own initiative without any measures being taken by authorities, or he or she is considered in all likelihood to have left Finland in a manner referred to in section 95c(1).” 31.     According to section 201, subsection 1, of the Act (as amended by Act no. 194/2015), a decision on removal may not be enforced until a final decision has been issued on the matter, unless otherwise provided in the Act. Applying for leave to appeal from the Supreme Administrative Court does not prevent the enforcement of a decision, unless otherwise ordered by the Supreme Administrative Court. 32.     In its decision KHO:2017:165, the Supreme Administrative Court held that an asylum seeker could be granted asylum under section 87 of the Aliens Act and issued a residence permit on grounds of subsidiary protection under section 88 of the Act only on the condition that he or she resides in Finland. Therefore, the non-refoulement prohibition laid down in section 147 of the Aliens Act could not apply and the enforcement of an expulsion decision could not be prohibited if an appellant had already returned voluntarily, prior to the issuing of an enforceable expulsion decision, to an area in relation to which he or she had applied for international protection. 33.     In its decision KHO:2019:5, the Supreme Administrative Court confirmed that an administrative court could decide, in accordance with section 198a of the Aliens Act, that an appeal relating to international protection expires if the appellant has left Finland at his or her own initiative before any measures have been taken by the authorities. Tort Liability Act 34.     According to Chapter 5, section 1, of the Tort Liability Act ( vahingonkorvauslaki, skadeståndslagen , Act no. 412/1974, as amended by Act no. 509/2004), damages shall be awarded in compensation for personal injury and damage to property as well as for suffering, provided that the conditions in sections 4 a and 6 are fulfilled. Where the injury or damage has been caused by an act punishable by law or in the exercise of public authority, or in other cases, where there are especially weighty reasons for the same, damages shall also be awarded in compensation for economic loss that is not connected to personal injury or damage to property. 35.     Section 4a of the Act (as amended by Act no. 61/1999) provides that: “The parents, children and spouse of a person who has died, as well as another comparable person who was especially close to that person, shall be entitled to damages for the anguish arising from the death, if the death has been caused deliberately or by a grossly negligent act and if the awarding of the damages is deemed reasonable in view of the close relationship between the deceased and the person seeking the damages, the nature of the act, and other circumstances.” 36.     According to section 6 of the Act (as amended by Act no. 509/2004), “a person shall have the right to compensation for suffering caused by a violation if: 1) his or her liberty, peace, honour or private life has been violated by an offence; 2) he or she has been discriminated against by an offence; 3) his or her personal integrity has been seriously violated by a wilful act or by gross negligence; or 4) his or her human dignity has been seriously violated by a wilful act or by gross negligence in other ways comparable to those mentioned in points 1–3. Compensation will be awarded on the basis of the suffering which the violation is prone to cause, taking into account, in particular, the nature of the violation, the position of the victim, the relationship between the perpetrator and the victim and the publicity of the violation.” RELEVANT COUNTRY INFORMATION ON IRAQ 37.     At the time of the domestic proceedings, the following country information was available on Iraq. General security situation 38.     The United Kingdom Home Office’s Country Information and Guidance on the security situation in Iraq, issued in November 2015, stated as follows under the heading “Policy Summary”: “The security situation in the ‘contested areas’ of Iraq, identified as the governorates of Anbar, Diyala, Kirkuk, Ninewah and Salah Al-din, has reached such a level that a removal to these areas would breach Article 15(c) of the Qualification Directive (QD). The security situation in the parts of the ‘Baghdad Belts’ (the areas surrounding Baghdad City), which border Anbar, Salah Al-Din and Diyala governorates, has reached such a level that a removal to these areas would breach Article 15(c) of the QD. In the rest of Iraq – the governorates of Baghdad (including Baghdad City), Babil, Basrah, Kerbala, Najaf, Muthanna, Thi-Qar, Missan, Quadissiya and Wassit, and the Kurdistan Region of Iraq (KRI) which comprise Erbil, Sulaymaniyah and Dahuk governorates – indiscriminate violence does not reach such a level that is in general a 15(c) risk. However, decision makers should consider whether there are particular factors relevant to the person’s individual circumstances which might nevertheless place them at enhanced risk. The security situation remains fluid and decision makers should take into account up-to-date country information in assessing the risk.” Situation of Sunni (Arab) Muslims 39.     The United Kingdom Home Office’s Country Policy and Information Note on Iraq: Sunni (Arab) Muslims, of June 2017 provided the following: “2.2 Assessment of risk a. Sunni identity 2.2.1 The Upper Tribunal, in the Country Guidance case of BA (Returns to Baghdad) Iraq CG [2017] UKUT 18 (IAC), heard on 24-25 August 2016 and promulgated on 23 January 2017, found: ‘Sectarian violence has increased since the withdrawal of US-led coalition forces in 2012, but is not at the levels seen in 2006-2007. A Shia dominated government is supported by Shia militias in Baghdad. The evidence indicates that Sunni men are more likely to be targeted as suspected supporters of Sunni extremist groups such as ISIL [Daesh]. However, Sunni identity alone is not sufficient to give rise to a real risk of serious harm’ (paragraph 107, (v)). ‘Individual characteristics, which do not in themselves create a real risk of serious harm on return to Baghdad might amount to a real risk for the purpose of the Refugee Convention, Article 15(c) of the Qualification Directive or Article 3 of the ECHR [European Convention on Human Rights] if assessed on a cumulative basis. The assessment will depend on the facts of each case’ (paragraph 107 (vi)). b. State treatment 2.2.2 Sunnis, though marginalised by the Shia majority in Baghdad, are still represented in society and government. There are sectarian tensions, but Haider al-Abadi’s government has attempted reconciliation with the Sunni population (see Sunnis in Baghdad and Political and sectarian context). 2.2.3 There are reports that Government forces have abused Sunnis, mainly in areas of current or recent Daesh control (see State treatment). 2.2.4 In general the treatment of Sunnis by the state is not sufficiently serious by its nature and repetition that it will reach the high threshold of being persecutory or otherwise inhuman or degrading treatment. 2.2.5 However, decision makers must consider whether there are particular factors relevant to the specific person which might make the treatment serious by its nature and repetition. c. Non-state treatment 2.2.6 Various non-state actors, primarily the powerful Shia militia (who number, in some estimates, in the tens of thousands), have violated the human rights of Sunnis in a number of governorates including Baghdad, Diyala, Kirkuk and Salah al-Din. These abuses increased following the remobilisation of the Shia militia in response to the Daesh insurgency in 2014 (see Shia militia and Shia militia abuses). 2.2.7 A Sunni may be able to demonstrate a real risk of persecution or serious harm from a Shia militia, but this will depend on their personal profile, including their family connections, profession and origin. 2.2.8 Sunni Internally Displaced Persons (IDPs), who generally lack support networks and economic means, are more vulnerable to suspicion and abuse. Decision makers need to consider each case on its merits. 2.2.9 There are a few reports that Sunnis experienced human rights abuses at the hands of Shia militia or unknown perpetrators in the southern governorates (Babil, Basra, Kerbala, Najaf, Missan, Muthanna, Qaddisiya, Thi-Qar and Wassit) (see Shia militia abuses and Abuses by other non-state actors).However, it does not appear to form part of a consistent or systematic risk to Sunnis. 2.2.10 In general, Sunnis in the southern governorates are not subject to treatment which would be persecutory or cause serious harm. However, decision makers must consider whether there are particular factors specific to the person which would place them at real risk. The onus is on the person to demonstrate this. ... 2.3 Protection 2.3.1 Where the person’s fear is of persecution and/or serious harm from non-state actors, decision makers must assess whether the state can provide effective protection. 2.3.2 The Upper Tribunal, in BA (Returns to Baghdad), found: ‘In general, the authorities in Baghdad are unable, and in the case of Sunni complainants, are likely to be unwilling to provide sufficient protection’ (paragraph 107 (vii)). 2.3.3 However, decision makers must explore whether there are circumstances – such as family, tribal or political links – in which a person can obtain protection. Each case must be assessed on its merits.” Situation of persons who collaborated with foreign companies or armed forces 40.     The interim report of 14 January 2011 issued by the Norwegian Country of Origin Information Centre (Landinfo) and the Swedish Migration Agency on their fact-finding mission to Iraq observed that there had been a number of incidents where Iraqis who had worked for American forces or companies had been killed. The United States had an assistance programme for Iraqis who had been subjected to threats for working at the Embassy in Baghdad. Recruitment was carried out only after careful scrutiny, which could take three to six months. 41.     The United Kingdom Home Office’s Operational Guidance Note on Iraq, of 22 August 2014, stated the following: “3.10.9 Conclusion. Persons perceived to collaborate or who have collaborated with the current Iraqi Government and its institutions, the former US/multi-national forces or foreign companies are at risk of persecution in Iraq. This includes certain affiliated professionals such as judges, academics, teachers and legal professionals. A claimant who has a localised threat on the basis that they are perceived to be a collaborator may be able to relocate to an area where that localised threat does not exist. The case owner will need to take into consideration the particular profile of the claimant, the nature of the threat and how far it would extend, and whether it would be unduly harsh to expect the claimant to relocate. A claim made on these grounds may be well founded and a grant of refugee status due to political opinion or imputed political opinion may be appropriate depending on the facts of the case.” 42.     According to Amnesty International Deutschland’s 2015 Report   on   Iraq (translation from German original at https://www.amnesty.de/jahresbericht/2015/irak): “ISIS soldiers also killed Sunnis, blaming them for insufficient support or alleging that they were working for the Iraqi government and their security forces or were at the service of the US troops during the war in Iraq.” THE LAW     ALLEGED VIOLATION OF ARTICLES 2 AND 3 OF THE CONVENTION CONCERNING THE APPLICANT’S FATHER 43.     The applicant complained that her late father’s expulsion to Iraq had violated Articles 2 and 3 of the Convention. The risk assessment by the Finnish authorities had not been undertaken with necessary diligence and it had been in clear conflict with the Court’s case-law. 44.     Articles 2 and 3 of the Convention read as follows: Article 2 “1.     Everyone’s right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law. 2.     Deprivation of life shall not be regarded as inflicted in contravention of this article when it results from the use of force which is no more than absolutely necessary: (a)     in defence of any person from unlawful violence; (b)     in order to effect a lawful arrest or to prevent the escape of a person lawfully detained; (c)     in action lawfully taken for the purpose of quelling a riot or insurrection.” Article 3 “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.” Admissibility Submissions by the parties (a)    The Government 45.     The Government raised a preliminary objection that this complaint was incompatible ratione loci with the provisions of the Convention. The applicant’s father had submitted an application for assisted voluntary return already before lodging his appeal and requesting a stay on execution of the Administrative Court’s decision. The applicant’s father had then returned voluntarily to his country of origin while his case was still pending before the Supreme Administrative Court, and his death had taken place in Iraq. The Finnish authorities had not exposed him to a risk of ill-treatment. Given his voluntary departure from Finland, there was no causal connection between the subsequent removal order and the exposure of the applicant’s father to an alleged risk in Iraq, where he had chosen to return. In any event, a sending State could be held responsible under Articles 2 and 3 of the Convention only at the time when a measure was taken to remove an individual from its territory. Articles 2 and 3 of the Convention did not create a general positive obligation for the Contracting States to protect people from voluntarily exposing themselves to potential risks outside their jurisdiction. This complaint should therefore be rejected as incompatible ratione loci with the provisions of the Convention. 46.     Secondly, the Government argued that, following the applicant’s father’s voluntary departure to Iraq, it could be considered that his voluntary departure put an end to his victim status and that after his departure he could no longer be regarded as a potential victim of any violation of the Convention. Furthermore, before his departure, he had signed a declaration in which he had agreed that any agency or government participating in the voluntary return could not in any way be held liable or responsible. In any event, the applicant’s father’s death could not be imputable to the Government of Finland nor engage the responsibility of the State in any respect. 47.     The Government further submitted that the applicant could not be regarded as an indirect victim of the alleged violation of Articles 2 and 3 of the Convention concerning her father, and that this complaint should therefore be rejected as incompatible ratione personae with the provisions of the Convention. (b)    The applicant 48.     The applicant disagreed with the Government and maintained that her father had not returned voluntarily to Iraq but had left as a result of the execution of an enforceable expulsion order issued by the State of Finland. Contrary to the facts in the Supreme Administrative Court’s case KHO:2017:165 (see paragraph 32 above), his return to Iraq was not genuinely voluntary but part of a process to execute an enforceable expulsion order. If he had not cooperated with the authorities, he would have risked being detained. He had left Finland only on 29 November 2017 when the deadline for his voluntary return had already expired and the Supreme Administrative Court had declined to grant a stay on the execution of his removal order pending the resolution of his appeal. The applicant’s father had preferred to opt for a voluntary return instead of forced return in order to avoid detention, to attract less attention from the Iraqi authorities upon return and in order to avoid a two-year entry ban to the Schengen area. He was planning to flee from Iraq again with his family and to seek international protection elsewhere. 49.     The applicant maintained that the violation of Articles 2 and 3 had been committed when the State of Finland ordered the applicant’s father’s expulsion to Iraq in spite of the existence of a real and well-substantiated risk to his life. The Finnish authorities had known, or should have known, that he was at risk of irreparable harm if returned to Iraq and nevertheless they had decided to expel him. According to the well-established case-law of the Court, Articles 2 and 3 could conditionally trigger the responsibility of the respondent State outside the State’s territory and jurisdiction in situations like the present one. The Finnish State had both the negative obligation to abstain from expelling the applicant as well as a positive obligation to protect him from a real risk of harm to his life and physical integrity which were known, or ought to have been known, to them. Finally, the applicant pointed out that the Court had recognised the standing of the victim’s next-of-kin to submit an application where the direct victim had died or disappeared. The Court’s assessment (a)    Locus standi of the applicant 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. (b)    Compatibility ratione loci 53.     The Court notes that according to the Government’s argument, the circumstances of the case did not engage the jurisdiction of Finland, because the applicant’s father had left Finland voluntarily for Iraq, where he had subsequently been killed. The applicant in turn argues that her father’s return had not been genuinely voluntary but based on the decisions already taken by the Finnish authorities with a view to his expulsion, and that her father’s death had thus been a consequence of the risk to which he had been exposed by the actions of the Finnish authorities. 54.     The Court reiterates that it has already had to consider whether Articles 2 and 3 ( inter alia ) were engaged in respect of a person who had voluntarily left the respondent Contracting State and returned to another State and whose complaint was based on facts that had occurred in that latter State (see Abdul Wahab Khan v. the United Kingdom (dec.), no.   11987/11 , 28 January 2014). In that case the Court held, in the context of its consideration of whether a person could be said to be “within the jurisdiction” of the United Kingdom for the purposes of Article 1 of the Convention, that there was no principled reason to distinguish between, on the one hand, someone who was in the jurisdiction of a Contracting State but voluntarily left that jurisdiction and, on the other hand, someone who was never in the jurisdiction of that State (see Abdul Wahab Khan, cited above, § 26). 55.     In the present case, the applicant’s complaint is based on the allegation that her father had not left Finland voluntarily but had been forced to return to Iraq because of the adverse decisions already taken by the Finnish authorities, and that those decisions therefore engaged the responsibility of Finland for having exposed the applicant’s father to a real risk of losing his life after his involuntary return to Iraq. 56.     The Court must therefore assess whether under the circumstances of the present case the applicant’s complaint falls outside the jurisdiction of Finland ratione loci on the grounds that the applicant’s father had voluntarily left Finland for Iraq where, as alleged, he was subsequently killed. 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. (c)    Whether the applicant’s father had waived his rights 58.     The Government also argued that the applicant’s father had, before his departure, signed a declaration with the Finnish representative of the IOM in which he had agreed, in return for receiving financial aid for the return, that any agency or government participating in the voluntary return could not in any way be held liable or responsible. While the Government raised this argument by reference to a loss of victim status, the Court, taking into account the circumstances of the present complaint, finds it appropriate to consider this point as an implied submission to the effect that the applicant’s father had waived his right to protection under Articles 2 and 3 of the Convention. 59.     The Court notes that Article 3 of the Convention, together with Article 2, must be regarded as one of the most fundamental provisions of the Convention and as enshrining core values of the democratic societies making up the Council of Europe (see Soering v. the United Kingdom , 7   July 1989, § 88, Series A no. 161). In contrast to the other provisions in the Convention, it is cast in absolute terms, without exception or proviso, or the possibility of derogation under Article 15 of the Convention (see Pretty v. the United Kingdom , no. 2346/02, § 49, ECHR 2002 ‑ III). Without taking a stand in abstracto on whether the rights guaranteed under Articles 2 and 3 can be waived, the Court notes that a waiver must, if it is to be effective for Convention purposes, in any event be given of one’s own free will, either expressly or tacitly, be established in an unequivocal manner and be attended by minimum safeguards commensurate with its importance (see Scoppola v. Italy (no. 2) [GC], no. 10249/03, § 135, 17 September 2009, and M.S. v. Belgium , no. 50012/08, § 123, 31 January 2012). 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). (d)   Conclusions 61.     On the above basis, the Court concludes that the Government’s preliminary objections must be dismissed. 62.     The Court notes that this complaint is not manifestly ill ‑ founded within the meaning of Article   35   §   3   (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. Merits Submissions by the parties (a)    The applicant 63.     The applicant argued that the credibility of her late father was not at any point called into question in the proceedings before the Finnish authorities. In the light of the information submitted to the domestic authorities and the relevant country information the authorities knew, or ought to have known, of the existence of a real risk of ill-treatment or loss of life if the applicant’s father were returned to his country of origin, Iraq. The authorities had failed to take into account his personal circumstances, background, previous experience of persecution and the cumulative factors in his personal circumstances pointing to an increased risk, as well as the Iraqi authorities’ lack of ability and willingness to provide protection, and had ended up with an erroneous result in the risk assessment. This had resulted in the death of the applicant’s father upon return. 64.     The applicant stressed that the authorities had found the applicant’s father’s account credible and coherent. The country information had corroborated his credible claims but this had been completely ignored by the authorities. Their conclusions were therefore clearly erroneous. The Finnish authorities had also applied a standard of proof which was inconsistent with the Court’s case-law, UNHCR guidelines and EU law. The applicant’s father had clearly substantiated to a reasonable degree why his stay in Iraq had become intolerable: he had done everything to prove his case. 65.     The applicant’s father’s account had clearly contained several elements distinguishing his case from the general perils in Baghdad. All parts of his account had been accepted as fact by the authorities. Although taken individually his personal circumstances might not have created a real risk for him, taken cumulatively they clearly amounted to a risk profile. No such cumulative assessment was ever made by the Finnish authorities. The authorities had rejected all of these individual reasons, considering that they had either taken place too long ago (working for Saddam Hussein’s regime and for an American company) or that, alone, they would not increase his risk of being ill-treated. In particular, the fact that he had twice experienced persecutory acts targ