DISSENTING OPINION OF JUDGE RANZONI

1 . I respectfully disagree with the majority that the applicants ’ expulsion to Iraq would give rise to a violation of Article 3 of the Convention. I cannot agree either with the general principles set out in paragraph 102 of the Grand Chamber judgment or with their subsequent application in the instant case.

General principles

2 . In paragraphs 77 to 105 the judgment of the Grand Chamber presents the general principles applicable in this field. The Court ’ s existing case-law is correctly summed up, albeit not always in full. For example, in paragraph 99, under the heading of “Past ill-treatment as an indication of risk”, the judgment omits a reference to I. v. Sweden (no. 61204/09, 5 September 2013), in which the Court held in paragraph 62, with reference to several other judgments:

“where an asylum seeker, like the first applicant, invokes that he or she has previously been subjected to ill ‑ treatment, whether undisputed or supported by evidence, it may nevertheless be expected that he or she indicates that there are substantial and concrete grounds for believing that upon return to the home country he or she would be exposed to a risk of such treatment again, for example because of the asylum seeker ’ s political activities, membership of a group in respect of which reliable sources confirm a continuing pattern of ill ‑ treatment on the part of the authorities, a pending arrest order, or other concrete difficulties with the authorities concerned.”

These principles are of significance for me when considering the present case and assessing the majority ’ s reasoning.

3 . The Grand Chamber judgment, after referring to provisions and principles laid down in the EU Qualification Directive (see paragraph 100) and UNHCR documents (see paragraph 101), makes the following statement in paragraph 102 without any further explanation:

“The Court considers that the fact of past ill-treatment provides a strong indication of a future, real risk of treatment contrary to Article 3, in cases in which an applicant has made a generally coherent and credible account of events that is consistent with information from reliable and objective sources about the general situation in the country at issue. In such circumstances, it will be for the Government to dispel any doubts about that risk.”

4 . At first sight, it does not seem clear whether the intention is to reflect the principles laid down in the existing case-law or whether new principles are to be established. A thorough assessment of the different criteria and their application later in the judgment makes it plain that the majority have established new principles in this crucial paragraph 102 without providing sufficient reasoning.

5 . These new general principles are my main concern. First, their development is not explained in the judgment. Secondly, they are in my view an unbalanced and fragmentary mixture of existing case-law and other international sources; they are not clear enough and not persuasive and are therefore not suitable for giving helpful guidance either to the domestic authorities in their difficult task of assessing asylum cases or to the Court itself when it is called upon, pursuant to Article 3, to make its own assessment. Thirdly, under the title “Past ill-treatment as an indication of risk” these principles mix different elements like the burden of proof, credibility and the consequences of past ill-treatment in an incoherent and, at least for me, unsatisfactory manner. Fourthly, taking into account the existing case-law, the establishment of new principles is not necessary.

6 . I will now concentrate on the four terms used in paragraph 102 of the judgment which, to my mind, are the most problematic: past ill-treatment , strong indication , generally and any doubts .

7 . Past ill-treatment : The judgment does not explain what kind of past “ill-treatment” is required for indicating a risk of future ill-treatment. Does that mean that any ill-treatment would be sufficient, even if it does not reach the threshold of Article 3? In my opinion only past ill-treatment contrary to Article 3 could, in principle, justify a conclusion that there is a risk of future ill-treatment of a similar gravity. In any event , past ill ‑ treatment cannot be seen as the only element in this risk assessment.

Furthermore, paragraph 102 remains silent on the consequences of the lapse of time between past ill-treatment and the assessment of any future risk. This raises the following question: is ill-treatment which, for example, occurred five or even ten years before the asylum request was made still sufficient to provide a strong indication of future ill-treatment?

8 . Strong indication : At the outset, it is not at all clear and nowhere in the judgment is it explained where the term “ strong ” stems from. The term indication seems to be inspired by Article 4 § 4 of the EU Qualification Directive (see paragraph 100 of the judgment), which provides:

“The fact that an applicant has already been subject to persecution or serious harm or to direct threats of such persecution or such harm, is a serious indication of the applicant ’ s well-founded fear of persecution or real risk of suffering serious harm, unless there are good reasons to consider that such persecution or serious harm will not be repeated.”

However, this Directive does not refer to a strong indication but only to a serious indication. Why does the judgment of the Grand Chamber use the term strong without any explanation? By the way, the difference in the wording also alters or at least confuses the EU standard, where the serious indication of a continuing real risk is based on past persecution and serious harm.

The use of strong may have been taken from R.J. v. France (no. 10466/11, 19 September 2013), referred to in paragraph 99 of the judgment as follows: “[T]he Court found that the Government had failed to effectively rebut the strong presumption raised by the medical certificate of treatment contrary to Article 3”. However, the Court in R.J. v. France acknowledged the strong presumption solely on the basis of the veracity of past ill-treatment and the injuries sustained as recorded in a medical certificate. A similar approach was taken in R.C. v. Sweden (no. 41827/07, 9 March 2010). There, the term strong was also used, but again simply to qualify the assumption that the injuries noted in the medical certificate had been caused by (past) ill-treatment (presumably by the domestic authorities). Neither in R.J. v. France nor in R.C. v. Sweden did the Court conclude that past ill-treatment provided a strong presumption or a strong indication of future ill-treatment upon the asylum-seeker ’ s return to his country of origin.

Thus, the Court ’ s case-law forms no basis for justifying the use of the term strong indication to determine the impact of past ill-treatment on the risk of future ill-treatment.

9 . Generally coherent and credible account : In my view, the asylum-seeker ’ s account of (past) events must be coherent and credible and it is not sufficient for the account just to be generally coherent and credible. The Court has stated in several judgments that if the veracity of the asylum-seeker ’ s submissions is questioned, he or she must provide a satisfactory explanation for any alleged discrepancies (see F.G. v. Sweden [GC], no. 43611/11, § 113, ECHR 2016, with further references). But it is also an important factor for the benefit of the doubt that the asylum-seeker ’ s statements were coherent and not contradictory and that the very essence of those statements remained unchanged during the asylum procedure. Of course, if only some details of the account may appear somewhat implausible, that does not necessarily detract from the overall credibility of the applicant ’ s claim. That is what the judgment of the Grand Chamber notes in paragraph 93 (last sentence), although it adds - without any explanation - the term general . However, the reference to Said v. the Netherlands (no. 2345/02, § 53, ECHR 2005-VI) and, mutatis mutandis , N. v. Finland (no. 38885/02, §§ 154-155, 26 July 2005) does not support this addition; the term general is not used in either of these two judgments.

That leads to the question where the term generally , used in paragraph 102 of the Grand Chamber judgment, stems from. Neither the Court ’ s case ‑ law nor the EU Qualification Directive nor the UNHCR documents indicate that an asylum-seeker ’ s account must simply be generally coherent and/or credible. The expression general credibility in Article 4 § 5 (e) of the Directive does not constitute a valid basis because it refers not to the credibility of the account (in German: Glaubhaftigkeit ) but to the credibility of the person (in German: Glaubwürdigkeit ). These are different concepts.

Moreover, Article 4 § 5 of the Directive appears to concern the conditions under which an applicant ’ s statement does not need confirmation, and one of these conditions reads as follows:

“(c) the applicant ’ s statements are found to be coherent and plausible and do not run counter to available specific and general information relevant to the applicant ’ s case.”

The purpose of using the term “ generally coherent and credible account” in the majority judgment seems to be to lower the credibility threshold in order to shift the burden of proof as soon as possible to the State. I cannot agree with such an approach, and the consequences thereof are visible in paragraph 114 of the judgment. Although the applicants ’ allegations concerning the period since 2008 give rise to serious doubts and are in several respects neither substantiated nor consistent but contradictory, they are nevertheless described as generally coherent and credible. Pursuant to the newly established principles and having regard to the consistency “with information from reliable and objective sources about the general situation in the country at issue” (see paragraph 102), this suffices for the majority to shift the burden of proof to the State. I am not able to follow this line of reasoning.

10 . The notion and interpretation of reliable and objective sources could also give rise to some observations, but in the present context I will refrain from further elaborating on this point.

11 . The last term I would like to discuss is the requirement for the State to dispel any doubts : If the burden of proof is, owing to the lowered credibility requirement, so quickly shifted, it seems nearly impossible for States to dispel any doubts. In my opinion, the majority have established very problematic principles and imposed a heavy burden (of proof) on member States.

I could, in principle, subscribe to this requirement but only under the following conditions:

(a) if the asylum-seeker has made a coherent and credible account of events of past ill-treatment which met the Article 3 threshold;

(b) if this account is consistent with information from reliable and objective sources about the situation in the country at issue, providing a serious indication of a future, real risk of such ill-treatment; and

(c) if the asylum-seeker has indicated substantial and concrete grounds for believing that the risk of further such ill-treatment still persists (see in this context I. v. Sweden , cited above, § 62).

In such circumstances, it would be for the State to dispel any doubts about the risk. That approach would be consistent with our case-law (see, for example, F.G. v. Sweden , cited above, § 120, and Saadi v. Italy [GC], no. 37201/06, § 129, ECHR 2008).

However, if the principles set out in paragraph 102 were to be applied, a less strict requirement than the requirement to dispel any doubts should have been provided. The Court could, for example, once again have taken inspiration from the EU Qualification Directive, which in Article 4 § 4 states that a serious indication can be rebutted if “ there are good reasons to consider that such persecution or serious harm will not be repeated ”. A similar approach would have been more appropriate in the present case.

12 . Against this background, I cannot agree with the principles established by the majority in paragraph 102 of the judgment.

Application of the general principles

13 . Even applying all the above-mentioned principles, my own assessment, contrary to the majority ’ s assessment, does not lead to a finding of a potential violation of Article 3 of the Convention should the applicants be expelled to Iraq. In this regard I agree with the joint dissenting opinion of my colleagues Judges Jäderblom, GriÅ£co, Dedov, Kjølbro, Kucsko ‑ Stadlmayer and Poláčková, and have nothing further to add.

[1] See paragraph 113 of the judgment, where the majority of the Grand Chamber conclude that the main question is not how the Swedish authorities assessed the case at the time. Compare this with the case of F.G. v. Sweden ([GC], no. 43611/11, § 1 1 7 in fine , ECHR 2016): “The Court must be satisfied, however, that the assessment made by the authorities of the Contracting State is adequate and sufficiently supported by domestic materials as well as by materials originating from other reliable and objective sources such as, for instance, other Contracting or third States, agencies of the United Nations and reputable non-governmental organisations (see, among other authorities, NA. v. the United Kingdom , no. 25904/07, § 119, 17 July 2008).”

[2] See Vilvarajah and Others v. the United Kingdom , 30 October 1991, § 108, Series A no. 215 .

[3] See p aragraph 19 of the Grand Chamber judgment.

[4] See the dissenting opinion of Judge Zupančič annexed to the C hamber judgment of 4 June 2015.

[5] Directive 2004/83/EC of the European Parliament and of the Council, of 29 April 2004, on minimum standards for the qualification and status of third country nationals or stateless persons as refugees or as persons who otherwise need international protection and the content of the protection granted (OJ 2004 L 304/12), subsequently recast by Directive 2011/95/EU, of 13 December 2011 (OJ 2011 L 337/9).

[6] See the separate opinion in A.M. v. France , no. 56324/13, judgment of 12 July 2016, which concerned administrative detention awaiting expulsion after illegal entry on the basis of the EU Returns Directive as transposed into the national law of the respondent State.

[7] Judgment of the Grand Chamber of 23 May 2016, paragraph 116.

[8] Judgment of the Irish High Court of 24 June 2016 in X.X. v. Minister for Justice and Equality , paragraphs 124-125.

[9] Contrast with the more limited concession in paragraph 93 of the Grand Chamber judgment, where it is stated that “ it is frequently necessary ” to give asylum-seekers the benefit of the doubt because they “often” find th emselves in special situations.

[10] See paragraphs 2 1 -2 2 of the Grand Chamber judgment.

[11] See the judgment of the Grand Chamber of 23 March 2016 in F.G. v. Sweden , no. 43611/11, paragraph 127, on the need, in certain circumstances , and given the absolute nature of Article 3 rights, for the authorities to carry out an assessme nt of risk of their own motion.

[12] I borrow this succinct overview of where the legal heart of the case is located from Judge Zupančič’s dissent, closing paragraph, Section II.

[13] See UN High Commissioner for Refugees (UNHCR), UNHCR Eligibility Guidelines for Assessing the International Protection Needs of Asylum-Seekers from Iraq , 31 May 2012, HCR/EG/IRQ/12/03, available at: http://www.refworld.org/docid/4fc77d522.html . For the relevance of such guidelines see A.M. v. Netherlands , no. 29094/09, paragraph 84, judgment of 5 July 2016, not yet final, where the absence of the applicant’s group from such a UNHCR potential risk profile was a factor supporting a conclusion as to absence of risk. See also, as regards the general situation in Iraq, the U.K. Home Office, Country Information and Guidance Iraq: Security situation in Baghdad, the south and the Kurdistan Region of Iraq (KRI) , April 2016, as well as the U.S. government’s approach to collaborators in U.S. Department of State, Proposed Refugee Admissions for Fiscal Year 2016 , 1 October 2015.

[14] See T.A. v. Sweden , no. 48866/10, judgment of 19 December 2013, paragraph 42, although it should be noted no violation was found in that case due, in part, to the passage of time since the applicant had received threats for his collaboration with U.S. forces.

[15] See paragraphs 145 and 151 of Neulinger and Shuruk v. Switzerland , no. 41615/07, Grand Chamber judgment of 6 July 201 0 .

[16] The statement in paragraph 117 of F.G. v. Sweden , cited above, to the effect that “[i]n cases concerning the expulsion of asylum-seekers, the Court does not itself examine the actual asylum applications or verify how the States honour their obligations under the Geneva Convention relating to the status of refugees” is entirely correct in theory. However, given the nature of the ex nunc assessment, it is less accurate, in certain cases, in practice.