CONCURRING OPINION OF JUDGE BIANKU

I agree with the way this judgment lays down the general principles governing expulsion cases under Article 3 of the Convention. I think it was high time, indeed, to do so. I also agree with the way in which these general principles were applied in the concrete circumstances of the case, leading to the finding of a potential violation.

I would add, however, the following. When dealing with asylum cases, our Court finds itself in a particularly delicate situation compared with the analysis it has to conduct in relation to other Convention-protected rights. This is linked to the fact that the Court has to conduct an ex nunc analysis of the situation in the country of destination. I fully agree with the need for such an analysis and I do not see any other possibility in a system aiming to offer effective and practical protection of the rights enshrined in the Convention. However, before deciding to conduct such an analysis and to proceed with the application of the general principles, as established in paragraphs 77-105 of this judgment, the Court should check whether the analysis conducted at national level in the particular case has been Convention compliant or not. By circumventing this check and avoiding giving a clear answer as to whether or not the national authorities have failed to do their job, I do not think that our Court helps them in applying the Convention standards at national level. While saying this, I do not rule out the possibility that the Court might deem it necessary to conduct an ex novo analysis itself, on account of a change of circumstances, after the national authorities have reached their conclusion.

Therefore, I would have preferred this judgment to have included another general principle after all those already set out, which would concern the test of the necessity of a new analysis of the case in Strasbourg. To my mind that test would be met only in two circumstances: first, when the national authorities have not conducted a Convention-compliant assessment of the concrete circumstances of the case and, second, when fundamental changes in circumstances, whether general or personal, require that, with a view to the effective protection of Article 3 rights, the Strasbourg Court should conduct a fresh analysis.

I would then have preferred the analysis of the specific circumstances of the case to start with the question whether the necessity test for a Strasbourg analysis has been met in this case. I respectfully consider that the majority have avoided giving a direct answer in that regard. [1] I believe that in this case the first requirement of the necessity test has been met, in so far as the national authorities, and specifically the Migration Court as the court of last resort at national level, failed to meet the Convention standard. I state this with the utmost respect for the Swedish authorities and the remarkable work they do in dealing with all t he asylum requests before them.

Under the Court ’ s well-established case-law, “[t]he Court ’ s examination of the existence of a risk of ill-treatment in breach of Article 3 at the relevant time must necessarily be a rigorous one in view of the absolute character of this provision and the fact that it enshrines one of the fundamental values of the democratic societies making up the Council of Europe”. [2] This has rightly been confirmed in paragraph 86 of the judgment.

The Migration Court, in the applicants ’ case, concluded that “in the event that some threats should still exist, it appears likely that [in French ‘ il était probable que ’ ] the Iraqi law-enforcement authorities are both willing and able to offer the applicants the necessary protection”. [3] In my opinion, this conclusion on the risk assessment does not comply with the test required by the Convention in asylum cases brought under Article 3. The likeliness or probability of the protection of an asylum seeker upon his or her return does not comply with the test of a rigorous examination of the applicants ’ allegations. When absolute rights protected by the Convention are at stake, the national authorities cannot discharge their obligations by concluding that it is likely that these rights will not be violated in the country of destination. The rigorous test requires that in their assessment the authorities should check whether there are substantial grounds to believe that there would be no real risk for the applicants ’ rights in the event of their return to Iraq. The wording used by the Swedish Migration Court does not convince me that the required rigour was applied in the examination of the applicants ’ case. For this reason, I think that an analysis by the Strasbourg Court should have been triggered and indeed was fully justified in this case.

CONCURRING OPINION OF JUDGE O ’ LEARY

1 . I voted, albeit with some hesitation, with the majority in this case due to the particular features of the applicants ’ case as well as the general situation in Iraq and given the Court ’ s obli gation, pursuant to its Article 3 case-law, to engage in an ex nunc assessment of the risk which the applicants would face if returned to Iraq.

2 . As Judge Zupančič indicated in his dissenting opinion at C hamber level, asylum cases like this one, when exam ined by the Court under Article 3, depend often, on the one hand, on geographically distant, historical events. On the other, they require the Court to craft prognostic judgments concerning what will or will not happen in the future if the applicants are returned to their country of origin. [4]

3 . Since I agree with most of the general principles outlined by the Grand C hamber judgment and support the conclusion of a violation, this concurring opinion is limited to highlighting some aspects of the majority judgment which risk creating unnecessary difficulties both for domestic asylum authorities and for the different sections of this Court called on to deal with Article 3 complaints introduced by failed asylum-seekers the subject of deportation orders.

4 . Firstly, the Grand Chamber judgment in J.K. v. Sweden highlights a fault line running through the Court ’ s current case-law on asylum and immigration, at least to the extent that that jurisprudence concerns m ember States, like Sweden, of the EU. At the heart of this case, as the majority judgment highlights (see paragraphs 85-102) is how the question of risk is to be assessed, with reference to Article 3, when it is established or accepted that the asylum-seeker has been the subject of past persecution or serious harm in the country to which the respondent State is seeking to return him. As a m ember State of the EU, Sweden is subject to the detailed rules of the Common European Asylum System and, within that context, the Qualification Directive. [5] Despite the fact that the Swedish legislation interpreted and applied by the competent authorities transposes this detailed EU secondary legislation, the majority judgment proceeds as if this is an irrelevance, referring only to EU asylum law when selectively borrowing elements to set its own jurisprudential standard for the burden of proof (see further paragraph 7 below). Nowhere in the Grand C hamber judgment, not even in the paragraphs setting out domestic law (paragraphs 23 - 29 of the majority judgment), are the provisions of Swedish law which transposed the relevant provisions of the Qualification Directive , particularly Article 4, explained or reproduced.

5 . I have stressed in a recent case on Article 5 of the Convention that the fact that a decision the subject of an application before this Court finds its origins in EU law is, of course, not a guarantee of Convention compatibility. [6] Nevertheless, if this Court is to fulfil its European supervisory role in the field of fundamental rights, it is incumbent on it to engage with and understand the complex legislation which m ember States of the EU may, in certain distinct fields of law, be required to transpose. In Avotiņš v. Latvia , the Grand C hamber, in a spirit of complementarity, rightly enjoin ed the domestic courts of EU m ember States to examine, regardless of the mutual recognition mechanism established by EU law, any complaint which raises “a serious and substantiated complaint to the effect that the protection of a Convention right has been manifestly deficient” where that situation cannot be remedied by EU law. [7] In the same spirit, it is incumbent on this Court, when examining complaints with a heavy EU law component, to understand fully the legal framework with which it is confronted and on which the impugned decisions of the domestic authorities are based.

6 . Lest this be read as a criticism aimed solely at this Court, I should stress it is not. It is essential that respondent Governments explain clearly, in cases where this arises, the nature and scope of the relevant provisions of national law and the EU law provisions which serve as their source or background. It is not for this Court to interpret them but it must understand them. Without this information, particularly in the field of immigration and asylum law, the Court is provided with an insufficient overview of the relevant legal framework with which domestic authorities and courts are working and the interrelationship between its component parts. This lack of clarity does not serve applicants, respondent Governments or the national asylum authorities called on to apply both the decisions of this Court and that of the Court of Justice in Luxembourg well. In the words of a domestic judge engaged in a recent Article 3 risk assessment similar to that at issue in the present case:

“ By contrast with other major national or regional courts, such as the U.S. Supreme Court or the Court of Justice of the EU, there are no legislative checks and balances to moderate the effect of any particular Strasbourg decision. To that extent, the European Court of Human Rights must have one of the highest ratios of power to accountability of any major judicial organ. ( ... ) where the court is dealing with a matter where such checks and balances are absent, one might hope that a finding of a violation would arise only where the breach was clearly established. ” [8]

While the judge in question goes on to recognize that this Court ’ s case-law does (generally) imply a rigourous and careful approach before concluding that deporting an individual would be a violation of Article 3 of the Convention, the message is clear: rigour and care are essential if our jurisprudence in this field is to be understood and followed.

7 . Secondly, in seeking to clarify its case-law pursuant to Article 3 of the Convention on the general assessment of risk, past ill-treatment as an indication of future risk and the burden of proof in this context, the Grand C hamber has sought inspiration from notes and guidelines established by the UNHCR and the provisions of the Qualification Directive, in particular, Article 4. Yet, as Judge Ranzoni highlights in his dissenting opinion, it is not for the Grand Chamber to pick and choose preferred elements from either or both sources, leaving aside those elements which suit its judicial narrative less well and jettisoning all important context. The result is a well-intentioned but slightly cobbled together formula in paragraph 102 which competent authorities may have some difficulty with in practice. How is a national judge called on to apply Article 4(4) of the Qualification Directive via the prism of his or her transposing national legislation, while insuring compliance with the requirements of Article 3 of the Convention, to reconcile the “serious indication” to which the former refers with the “strong indication” which the Court now identifies as the relevant standard under Article 3? There is no explanation for this altered language. In addition, as regards paragraph 97, whatever about the UNHCR documents referred to, Article 4(5) of the Qualification Directive does not recognise, explicitly or implicitly, that the benefit of the doubt should be granted in favour of an individual seeking international protection. Article 4(5) states rather that where aspects of the applicant ’ s statements are not supported by documentary evidence, those aspects shall not need confirmation where five clearly defined conditions are met. There is no need to reproduce all of those conditions in detail. Suffice it to say that by finding that asylum-seekers should be given the benefit of the doubt, without in anyway qualifying that statement with a general “in certain circumstances” or “subject to certain conditions”, the Grand Chamber glosses over essential details and conditions built into the sources on which it claims to rely. [9] In order to find a violation of Article 3 in the instant case, this muddying of legal waters was not necessary and, given that this is a Grand Chamber judgment, far from desirable.

8 . Thirdly, it should be stressed that the majority judgment is to be welcomed to the extent that it systematizes some of the general principles to be applied by domestic authorities in Article 3 cases and, in addition, clarif ies the nature of the ex nunc assessment the Court engages in pursuant to this provision (see paragraphs 77 - 90). Nevertheless, when it comes to applying those general principles to the facts of the instant case, some of the unnecessary weaknesses identified above in paragraph s 97 and 102 find their mirror image when it comes to application of the general principles in paragraph 114. Some of these weaknesses are highlighted in the joint dissenting opinion annexed to the majority judgment. While I would disagree with the latter in their alternative assessment of risk, or rather the lack thereof, I would certainly agree that it was unnecessary for the majority to rely on such reductive reasoning in this crucial paragraph. This case turned on the evidentiary burden which had to be discharged once it was accepted, as it was, that the applicant and his family had been the victims of serious persecution, resulting in death and serious injury, in Iraq and that significant parts of their account were credible. The Grand C hamber had to assess in this context whether, given past events, the probability that the Iraqi authorities would be both willing and able to protect the applicant, a former U.S. army collaborator, and his family was a sufficient basis to be able to deport them. Despite evidence that the applicant had participated in a TV debate in which he had criticised the authorities precisely on this point, the Migration Board refused to re-examine their case, [10] a fact alone which could have been examined more closely by the Court in the light of its recent decision in F.G. v. Sweden . [11] In the context of the Court ’ s own ex nunc assessment, given the situation in Iraq and Baghdad mid-2016, it was possible to provide more than the bare statement in paragraph 114 to the effect that past ill-treatment by a l-Qaeda allowed the Court to find “that there is a strong indication that they would c ontinue to be at risk from non-S tate actors in Iraq”, referring in a circular manner in support of this statement to a previous paragraph under the general principles where this criterion of past ill-treatment in the assessment of future risk is enunciated. Again, the potential violation of Article 3 should the applicants be expelled to Iraq could have been established on a more solid basis. Once it is recognised, as it was by the Swedish authorities, that the attacks on the applicant, on the one hand, and the death of his daughter, on the other, occurred and the reason for those attacks, a prima facie case in favour of granting asylum began to form, and the evidentiary burden passed to the State, particularly when it came to disproving the risks posed by the general situation in the receiving State, the threat from non-State actors and the in ability of the authorities in said State to protect the applicants when and if returned. [12] I respectfully disagree with the joint dissent when they “assume” that, since threats to the applicant and his family had stopped when he ceased his collaboration with the U.S. forces, no future risk lay and when they state, without more, that “there appears to be no risk of persecution of the applicants on account of the activities of ISIS either”. However, they are entirely correct in their contention that the Grand Chamber, in its ex nunc assessment, had to engage clearly and concretely with these issues. Was it not possible to refer, amongst others, to the UNHCR guidelines, albeit from 2012, which made clear that civilians (formerly) employed or otherwise affiliated with the former MNF-I/USF-I or international companies, as well as their families, were still at ri sk of being targeted by non-S tate actors for their (imputed) political opinio n and identified who those non-S tate actors were? [13] The Court itself has previously recognized that individuals who worked directly with the international forces or for a company connected to those forces must, as a rule, be considered to be at greater risk in Iraq than the average population. [14]

9 . It was also open to the Grand Chamber, in the context of the latter assessment, to recognize that the violation which it finds against the respondent State is in part due to the situation of, at times, acu te volatility in the receiving S tate and is the result of an assessment undertaken by the Court in June 2016, over four years after the key decision by the Migration Court. The violation imputed to the respondent State should be viewed in the light of this significant time lapse. [15]

10 . As the dissenting opinions demonstrate, views will undoubtedly differ as regards the application of the general principles derived from the case-law to an individual asylum-seeker ’ s circumstances in the context of an ex nunc assessment by this Court. There is no doubt that such assessments have fourth instance overtones [16] and it is precisely because of this that the Grand Chamber should have handled more carefully the two cruc ial paragraphs discussed above.