CONCURRING OPINION OF JUDGE ZUPANČIČ

1. To the majority opinion with which I agree, I would like to add the following remarks in order to pinpoint two additional issues. I have explained the first question to some extent in my concurring opinion in Scozzari and Giunta [1] several y ears ago. One problem in family- law cases, in pre-trial d etention cases and in emergency- assessment cases, as in Saadi v. Italy here, is that the judicial assessment does not have to do with a past historical event. Because I have dealt with this question in Scozzari and Giunta it is not necessary to reiterate the whole problem, except that I might add that the legal paradigm is retrospecti ve. Legal process as a conflict- resolution context, together with all its evidentiary apparatus, is always retrospective. It is the insurance companies that are used to making “speculative” probabilistic assessments of the likelihood of future events. In American legal literature one may find many serious mathematical contributions concerning the descent from abstract probability to the concrete assessment of risk. When one is dealing with large numbers, as insurance companies, for example, often do, one may use a fairly simple formula known as “Bayes ’ theorem”. However, when one is dealing with rare events, the use of Bayes ’ formula becomes impossible, given that in rare events there is no statistical reality o ne could refer to. In paragraph 142 of the judgment the majority rightly say that , although the assessment of risk remains to some degree speculative, the Court has always been very cautious in examining the material placed before it in the light of the requisite standard of proof ( paragraphs 128-32) before indicating an interim measure under Rule 39 or finding that enforcement of removal from the territory would be contrary to Article 3 of the Convention.

Of course, the reference in this context has always been to Chahal v. the United Kingdom (15 November 1996, Reports of Judgments and Decisions 1996-V) . In § 74, the standard rule was established as follows: “where substantial grounds have been shown for believing that the person in question, if expelled, would face a real risk of being subjected to [ torture or to inhuman or degrading treatment or punishment ] in the receiving country ... , Article 3 implies the obligation not to expel the person in question to that country.” This standard has been used by the United Nations Committee against Torture when applying Article 33 of the United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Tratment or Punishment .

While superficially logical, the Chahal test has an inherent problem which I describe in the beginning of this opinion. No matter how precise the wording of the Chahal test, it applies to the probability of future events rather than something which has already happened. It is therefore at least inconsistent to say that a certain standard of proof as referred to in the judgment in paragraph 142 could be applied. The simple reason for that is, of course, that one cannot prove a future eve nt to any degree of p robability because the law of evidence is a logical rather than a prophetic exercise. It is therefore an understatement to say that the application of the Chahal test is “to some degree speculative”.

The cognitive approach to future events may be only a rational probabilistic assessment in the spectrum of experiment which moves from abstract probability to concrete probability. The correctness of that probabilistic assessment – one might use the word prognosis – critically depends on the nature of information (not evidence!) adduced in a particular situation.

Whether law deals with past events and their proof on the one hand or with the probabilities of future events on the other hand, the information supplied for the purpose is never 100% complete. When dealing with historical events, the problem is that they are un-repeatable by nature and are in some sense irretrievably lost in the past. This, in contrast with repeatable events, makes for the difference between the scientific approach and proof on the one hand , and a legal assessment of what has happened in the past on the other hand.

Consequently, there is a parallelism between the evidentiary problem in assessing the actual occurrence of past events on the one hand, and the probabilistic assessment of future events as in the present case on the other hand. However, while in both cases we are dealing with situations that are cognitively never completely accessible, the “evidentiary” problem concerning future events is far more radical.

From time immemorial the legal process has dealt with these problems and has invented a way of resolving situations despite this cognitive insufficiency. I refer to the use of presumptions in Roman law where the magistrate ( praetor ) was required to make a decision about the past event although the evidence adduced was insufficient. The formula concerning presumptions, therefore, referred to situations of doubt and it required the decision-maker to assume a particular position when in doubt, as indicated by the legally mandated presumption. In other words, this enabled the system to reach a res judicata level even without being able to ascertain the whole truth.

The mirror image of presumption is what at common law we call “the burden of proof” and “risk of non-persuasion”. The person bearing the burden and risk in the legal process is therefore put in a situation in which he must adduce sufficient evidence – or else lose the case.

This logic works very well with past events, but it does not work very well either in family- law cases ( Scozzari and Giunta ) or in pre-trial detention cases or for that matter in Rule 39 cases.

The latter are clearly emergency situations in which a person is , for example , arrested at an airport in order to be expelled ( “ refoulement ” ). To say in such a situation that this person must bear both the burden of proof and the risk of non- persuasion – while bein g held at the airport detention centre! – is clearly absurd. To make such a person bear the burden and the risk without redistributing both the burden and the risk and placing a large portion of it on the expelling S tate, borders on the inquisitorial. This kind of superficial formalism goes against the very grain of the European Convention on Human Rights.

Moreover, the purpose of injunctions as per Rule 39 of the Rules of Court is not to adjudicate a particular case. In every legal system , emergency measures of this kind apply in order to freeze the situation so that the court dealing with the situation may have the time and the opportunity to make justice prevail. In such situations the issue is not whether the person being expelled will or will not be tortured or subjected to inhuman or degrading treatment in the country to which he is being expelled, but simply to create a delay without irremediable consequences should the person be irretrievably expelled. The aim therefore is not some kind of truth - finding. The aim is to create conditions in which truth - finding may yet happen.

It therefore becomes obvious that the role of presumptions and of the “burden of proof” is here completely different because it does not serve an ultimate decision over the subject matter; it only serves to preserve the future scope of judicial decision-making over the subject matter. It follows inexorably that the role of the person being expelled in Rule 39 situations is to produce a shadow of a doubt, whereupon the burden of proof shifts to the country concerned. This is human rights. In evidentiary doctrine this is called “bursting the bubble”, as for example in the case of presumption of sanity, where a minimum of doubt suffices to eliminate this presumption and shifts the burden to the prosecution. The reasons for that shift are, of course, completely different in the context of criminal trial, but are extenuated to the n th degree in an airport emergency situation in which the person is being expelled. In the context of human rights the minimal empathy and the humanness of human rights dictate that a person threatened with expulsion should not bear an excessive burden of proof or risk of non- persuasion. The expelling St ate, in other words, is morally responsible for the mistaken assessment of risk, whereas the Court must in such situations favour the security of the person being expelled.

2. I am in complete agreement with paragraph 139 of the judgment in which the majority say that there is simply no quid pro quo between “serious threat to the community” on the one hand , and “the degree of risk of ill-treatment that the person may be subject to on return” on the other hand. The police logic advanced by the intervening Contracting State simply does not hold water. The question of the danger posed by the person to be expelled to the expelling party does not have an immediate bearing of any kind on the danger he might face if in fact expelled. Certainly, there will be cases in which a confirmed or notorious terrorist will for that reason face a harsher sentence in the country, usually a non-signatory of the Convention, to which he is being expelled. The fact, however, that these two sets overlap does not in itself prove that there should be a quid pro quo between them.

It is intellectually dishonest on the other hand to suggest that expulsion cases require a low level of proof simply because the person is notorious for his dangerousness. From the policy point of view it is clear that the expelling S tate will in such situations be more eager to expel. The interest of a party, however, is no proof of its entitlement. The spirit of the Convention is precisely the opposite, that is, the Convention i s conceived to block such short- circuit logic and protect the individual from the unbridled “interest” of the executive branch or sometimes even of the legislative branch of the S tate.

It is thus extremely important to read paragraph 139 of the judgment as a categorical imperative protecting the rights of an individual. The only way out of this logical necessity would be to maintain that such individuals do not deserve human rights – the third - party intervene r is unconsciously implying just that to a lesser degree – because they are less human.