JOINT DISSENTING OPINION OF JUDGES JÄDERBLOM, GRIŢCO, DEDOV, KJØLBRO, KUCSKO-STADLMAYER AND POLÁČKOVÁ

1 . We regret that we are not able to subscribe to the view of the majority in this case that there would be a potential violation of Article 3 of the Convention should the applicants be expelled to Iraq.

2 . The parties agreed that the applicants and some other members of their family had been subjected to persecution by al-Qaeda until 2008 on account of the services provided by the first applicant to the American forces. The crucial question in this case is how to deal with the applicants ’ allegation of subsequent events that took place after those services ended, bearing in mind that although the historical position is of interest in so far as it may shed light on the current situation and its likely evolution, the present conditions are decisive for the assessment of applicants ’ claims (see, among other authorities, Chahal v. the United Kingdom , 15 November 1996, § 86, Reports of Judgments and Decisions 1996 ‑ V; Venkadajalasarma v. the Netherlands , no. 58510/00, § 67, 17 February 2004; Hirsi Jamaa and Others v. Italy [GC], no. 27765/09, § 121, ECHR 2012; and A.G.R. v. the Netherlands , no. 13442/08 , § 55, 12 January 2016).

3 . The majority see no reason to question the applicants ’ account. They are satisfied that the applicants ’ account of the events which occurred between 2004 and 2010 is generally coherent, credible and consistent with relevant country-of-origin information and that it provides a strong indication that the applicants continue to be at risk from non-State actors in Iraq (see paragraph 114 of the judgment). After concluding that there is a strong indication of this continued risk, the majority find that it is for the Government to dispel any doubts about it. Here the majority refer back to the assessments made by the Migration Agency and the Migration Court and find their reasoning to be lacking. However, the majority do not take into account the Government ’ s submissions on the relevant points but conclude that the domestic decisions do not appear to have entirely excluded a continuing risk from al-Qaeda and that they instead appear to have supported the view that the Iraqi authorities ’ ability to protect the applicants had increased (see paragraph 115).

4 . The question is whether or not the respondent State would be fulfilling its obligations under the substantive limb of Article 3 were it to execute the authorities ’ decision to expel the applicants to Iraq. Even though the domestic authorities ’ assessment of the facts, including the credibility of accounts provided by asylum-seekers, is very important for the Court ’ s assessment of an application, the principal issue in the present case is not the Swedish immigration authorities ’ decisions at the time, but whether, in the present-day situation, the applicants would face a real risk of persecution if returned to Iraq (see paragraph 113 of the judgment). This inevitably means that the Court takes on the responsibility for determining all the facts on which it bases its risk assessment under Article 3. However, respecting the principle of subsidiarity, “it is not the Court ’ s task to substitute its own assessment of the facts for that of the domestic courts and, as a general rule, it is for those courts to assess the evidence before them” (see paragraph 84), and therefore any assessment of the relevant facts and evidence that has previously been made in the domestic context must be taken into account. As it is the Government who defend the State in the case before the Court, and as a possible potential violation of Article 3 is at issue, their submissions as regards the facts and the applicants ’ credibility must be taken into account in the Court ’ s ex nunc assessment of any future risks for the applicants. All this must be done without the Court having had the opportunity to hear the applicants in person and, in this case, without any of the written evidence adduced in the domestic proceedings having been presented to all the judges. Furthermore, even accepting past ill-treatment as a “strong indication” of risk (see paragraphs 99-102), if such ill-treatment ceased while the applicants remained in their home country, that risk indication is diminished in our opinion. However, we agree with the majority that any acceptance of past ill-treatment as an indication of a risk presupposes that the applicant “has made a generally coherent and credible account of events” (see paragraph 103).

5 . It is not clear from the majority ’ s reasoning in paragraph 114 or elsewhere in the judgment on what grounds they base their conclusion that the applicants ’ account of events is generally credible, or why they disregard the Government ’ s contention to the contrary. In our opinion the assessment of the applicants ’ credibility in this case should include the following aspects: an evaluation of the Government ’ s claim that the first applicant had not mentioned in his interviews at the Migration Agency in 2011 his allegation that al-Qaeda had been searching for him only a few weeks previously; scrutiny of the report allegedly produced by the Iraqi authorities (to which the applicants claimed that they did not have access) in relation to the alleged burning down of the applicants ’ house in November 2011; an assessment of the claim that the applicants risk persecution on account of the first applicant ’ s political activities, set against the Government ’ s contention that this factor was not mentioned in the proceedings before the Migration Agency but only in the later appeal to the Migration Court; and an assessment of the claim by the applicants that al-Qaeda had searched for the first applicant in 2011, the only evidence of which is a report by a former neighbour in Baghdad, the evidentiary value of which is low according to the respondent State.

6 . We conclude the following as regards these aspects. In combination with the fact that the last-mentioned event was not brought up in the interviews at the Migration Agency, the neighbour ’ s report gives the impression of having been constructed retrospectively, and therefore that event should be regarded as unsubstantiated. The report of the fire at the applicants ’ house has been considered to be of low evidentiary value by the Migration Agency, and even if that event were accepted as fact, there is no indication of any specific category of perpetrator. The first applicant ’ s claims as regards his political activities are supported by a video recording of a political debate which apparently is not correctly dated. Moreover, this was also an alleged event which could have been mentioned from the outset of the asylum proceedings, and the failure to do so has not been sufficiently explained. Against this background we do not agree with the majority ’ s finding that the applicants ’ account of events is “generally credible”.

7 . In sum, we find that the allegations by the applicants in their submissions before the domestic authorities after the first set of proceedings before the Migration Agency were not merely unsubstantiated, but undermined their asylum claim, especially as regards the events that allegedly took place after 2008. We therefore conclude that the applicants have not shown that they were subjected to persecution by third parties after that date and do not agree that the burden of proof shifted to the Government to dispel any doubts about the risk of such persecution in the future.

8 . As the parties agreed that the applicants had been persecuted until 2008 we accept that as fact, but we conclude that the persecution stopped at that point and that this coincided with the first applicant ’ s termination of his business activities linked to the American forces. Under these circumstances, the applicants ’ past ill-treatment cannot serve as the main basis for an assessment of a future risk of persecution, but is one factor among others to be taken into account.

9 . The question is whether, in spite of the fact that the persecution of the applicants ended by 2008, there exists today a real risk of their persecution by any group because of the first applicant ’ s previous business activities. We agree with the majority that the general situation in Iraq does not call for the conclusion that it in itself entails a risk of treatment in violation of Article 3. The evaluation of such a risk should thus be based on the following elements pertaining to the applicants ’ individual situation on account of the first applicant ’ s previous services to the American forces:

(i) the applicants were persecuted by al-Qaeda until the first applicant ended his business with the Americans in October 2008, and

(ii) the applicants each remained in Baghdad for between two and three years thereafter without being persecuted.

10 . The applicants claimed that they had gone into hiding in Baghdad by moving between different addresses before leaving Iraq. This has not been contested by the Government. Even if the applicants were hiding and thereby avoided threats from al-Qaeda, they have not claimed that the rest of their family – two daughters who lived in Baghdad and were not in hiding – were ever threatened on account of the activities of the first applicant. Against this background we cannot conclude that the hiding and moving around in Baghdad constituted the sole reason why their persecution ended.

11 . The first applicant claimed that he had provided construction and transport services to the Americans, operating out of one of their camps in Baghdad. He has not described in any detail what those services consisted of. Although it is clear that certain categories of collaborators with the former US/multinational forces – apparently mainly those who have shown a political or ideological commitment to those forces – are still targeted by various groups (see paragraph 41 of the judgment), the reports appear not to be as conclusive when it comes to former independent providers of practical services untainted by ideological commitment. As the reports describe an ongoing threat from al-Qaeda towards certain collaborators it may be assumed that had any threats ended after the first applicant stopped providing his services, he and his family would no longer be under threat from that particular organisation. As regards other groups, such as ISIS, some country information has been cited in the judgment as regards their activities throughout Iraq. However, none of these reports describe a risk from ISIS that is any different from that of al-Qaeda as regards persecution of persons in Baghdad. Consequently, there appears to be no risk of persecution of the applicants on account of the activities of ISIS either.

12 . To sum up, there is no disagreement between the parties that the applicants were subjected to persecution by al-Qaeda until the first applicant stopped providing services to the American forces in 2008. The applicants remained in Baghdad for a considerable length of time after their persecution ended in 2008. Their past ill-treatment can therefore not in itself serve as an indication of a future risk of being subjected to the same type of persecution as previously. It is therefore for the applicants to show that were they to be returned to Iraq in the present conditions there would be a real risk of ill-treatment emanating from al-Qaeda or any other group. They have not been able to do this. For these reasons we consider that there would not be a violation of Article 3 if the order to expel the applicants to Iraq were implemented .