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06 december 2012

Dissenting opinion van twee rechters in zaak Ethiopier tegen Zweden

Interessant zijn ook de Dissenting opinions van twee rechters die niet zoals de meerderheid vinden dat meneers verhaal ongeloofwaardig is (Noot: zo zie je hoe belangrijk geloofwaardigheid is. Probeer dat altijd zo uitgebreid mogelijk aannemelijk te maken). Hun verhaal is wellicht interessant in het geval u een zaak heeft waar de geloofwaardigheid van het asielrelaas niet ter discussie staat maar het de vraag is of er nog wel risico is bij terugkeer.

This case raises an important question concerning the additional weight, if any, to be accorded to evidence of past torture in this Courts assessment[1] of any future risk that an applicant will suffer treatment that is prohibited by Article 3 of the Convention. As a general principle, a respondent States responsibility may be engaged where substantial grounds have been shown for believing that the person concerned, if deported, faces a real risk to being subjected to treatment contrary to Article 3. In such a case, Article 3 imposes an obligation not to deport the person in question to that country. (see Saadi v. Italy (dec.) GC no. 37201/06, § 125, ECHR 2008-... ). As such, the Courts focus in assessing such a risk is future orientated; but does the fact that an applicant has already been tortured in the past have any bearing upon the Courts assessment of a future risk if he or she is deported to a third country? To my mind, it does. It constitutes a factor to which particular weight should be given and it leads to a reversal of the general onus of proof in Article 3 claims (R.C. v. Sweden, no. 41827/07, § 55, 9 March 2010).

The Court in R.C. v Sweden introduced an important point of principle in its assessment of risk in respect of applicants with a personal history of having been subjected to treatment that is prohibited in absolute terms under Article 3 of the Convention. The applicant in R.C. was an Iranian national who sought asylum in Sweden and whose application was assessed and refused at national level. The evidence was that he had, probably, been tortured in the past in that his body bore scars which substantiated his claim. Being aware of reports of serious human rights violations in Iran, the Court did not find them to be of such a nature as to show that, on their own, there would be a violation of the Convention if the applicant were to be returned thereto. However, when assessing his personal situation which included a history of torture the Court articulated an important principle in stating:-

Having regard to its finding that the applicant has discharged the burden of proving that he has already been tortured, the Court considers that the onus rests with the State to dispel any doubts about the risk of his being subjected again to treatment contrary to Article 3 in the event that his expulsion proceeds. (§55) [Emphasis added]
The majority in the instant case has departed from this case law. It finds no reason to question that the applicant may have been subjected to illtreatment in the past and notes, in particular, that the forensic evaluation of the applicants injuries confirmed that they were visibly compatible with his story. However, instead of reversing the onus of proof at this point by requiring the respondent State to dispel any doubts about the risk of the applicant being subjected again to ill treatment, it reverts its focus to comparatively minor credibility issues and concludes that the onus remains with the applicant and that he has failed to make it plausible that he would face a risk of ill treatment if deported to Ethiopia. In this regard, it fails to apply the clearly established principle of the reversal of the onus of proof as articulated in R.C. v Sweden.

To my mind, this applicant has satisfied the objective and the subjective tests under Article 3. Objectively, there are independent reports of serious human rights violations in Ethiopia,[2] a fact which the majority acknowledges (§39). Subjectively, the applicants account of severe beatings with fists and truncheons, of cuts with sharp objects, of being enchained and blindfolded, of being forced to listen to others being tortured, of being forced to crawl over sharp rocks and of having his head shaved with broken glass—are corroborated in two respects. Firstly, he bears “a rather large number of scars on different parts of the body” which are consistent with the applicants statements and have been assessed as such by an expert in forensic medicine (§12). Secondly, his presentation upon independent assessment led to the conclusion that he has undergone trauma in the past and that he now suffers from post-traumatic stress disorder and depression (§ 11). This evidence, including the independent forensic evidence, has not been contradicted or rebutted by the Government. To expect of an applicant who has already been tortured to prove that he will not be tortured again if deported is, to my mind, to take a step too far. The case law is clear. In such circumstances, the onus of proof shifts to the deporting State to adduce convincing evidence that such an individual will not be subjected, once again, to such treatment.

In the light of the evidence in this case, the applicant has, to my mind, discharged the burden of proving that he has already been tortured in the past. Consequently, I adopt the position of the Court in R.C. v Sweden and consider that the onus rests with the State to dispel any doubts about the risk of being subjected again to treatment contrary to Article 3 in the event that his expulsion proceeds (R.C. v Sweden §55). This has not been done.

As to the credibility issues raised by the majority, an asylum seeker is required to make a genuine effort to substantiate his story[3]. The extensive scarring on his body and the medical/forensic evidence of two independent experts is sufficient, to my mind, to satisfy this requirement. After such an effort to substantiate has been made there may still be a lack of evidence for some of his statements. As the UNHCR Handbook on Procedures and Criteria for Determining Refugee Status provides:-

[I]t is hardly possible for a refugee to “prove” every part of his case and, indeed, if this were a requirement the majority of refugees would not be recognised. It is therefore frequently necessary to give the applicant the benefit of the doubt.” [4]

Given the significant substantiation of the applicants claim of having been tortured, the credibility issues relied upon by the majority are not of sufficient weight as to warrant a departure from the principles previously articulated by this Court. The respondent State having failed to dispel any doubts about the applicants subjection to a recurrence of ill-treatment if deported to Ethiopia, I find that its obligations under Articles 2 and 3 of the Convention would be breached if it proceeds to return him to the place wherein he has been tortured.

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