CONCURRING OPINION OF JUDGE THOMASSEN

In agreement with my colleagues, I find that the applicant ' s expulsion to Eritrea w ould be in breach of Article 3.

However, I would like to give additional reasons for being unable to follow the conclusion reached by the domestic authorities that the applica nt ' s account was not credible.

The issue at stake is an extremely serious one: the expulsion of a person who fears that, in his country of origin, his life will be at risk or that he will be subjected to torture or inhuman treatment, that is to say, a possible infringement of the most fundamental values of the Convention.

What complicates the examination of the present and similar cases, however, is that the facts – as related by the person concerned – can often not, or can only partially, be established. This cannot always be held against that individual, because one can readily understand that adducing proof of the facts is often a difficult task.

At the same time, it is important to recognise that persons who have fabricated the reasons for their flight should not be able to benefit from asylum laws, because this could discredit the very important humanitarian right to asylum.

Insufficient facts will often result in the judge having to assess the reliability of the account given by the person concerned. Bearing in mind the subjective elements which are inherent in making such an assessment, judges will to a certain extent, in an area where the most fundamental human rights are at stak e, find themselves on thin ice.

Given what is at stake, a conclusion that an asylum - seeker ' s account is not credible should therefore be based on a thorough investigation of the facts and be accompanied by adequate reasoning (see Nasimi v. Sweden (dec.), no. 38865/02, 16 March 2004 ).

Such an obligation does not follow from Article 6, which is not applicable to expulsion cases (see Maaouia v. France [GC], no. 39652/98, § 40, ECHR 2000 ‑ X), but flows directly from Articles 2 and 3, in my opinion. I would draw a parallel with other procedural aspects which, under the Court ' s case-law, can be derived from these provisions, such as the obligation to conduct an effective investigation into a homicide or into a credible assertion that someone has been subjected to treatment contrary to Article 3. Indeed, the Court has already held that an individual ' s claim that their deportation to a third country will expose them to treatment prohibited by Article 3 requires rigorous scrutiny (see Jabari v. Turkey , no. 40035/98, § 39, ECHR 2000 ‑ VIII).

However, in my view, no serious investigation was carried out in the present case.

In the first decision on the applicant ' s request for asylum, it was held against him that he had failed to provide documentary evidence of his identity. Yet , when he subsequently submitted a number of identity documents in the appeal proceedings before the Regional Court (see paragraph 16 of the judgment), the relevance of these for the assessment of the credibility of his account remained unaddressed.

The Regional Court concluded that the applicant ' s account was not credible, since it was not plausible that the general mobilisation sh ould still have continued at a time when, by the applicant ' s own admission, the war had ended and the army had conducted an evaluation of its performance.

This test applied by the Regional Court for assessing the credibility of the applicant ' s account was defective because, despite the war having ended, the army did indeed remain mobilised.

When the applicant complained about this incorrect factual assumption to the Council of State, the reply was that this did not affect the impugned ruling since the decision of the Regional Court was also based on the lack of credibility of the applicant ' s account of his sudden arrest on 5 December 2000 and the relative ease with which he had allegedly managed to escape.

These considerations cannot, in my opinion, be regarded as an adequate justification for the conclusion that the applicant ' s account as a whole was invented. Given the facts, firstly, that deserters are sought out by the army and do run the risk of execution or ill-treatment , secondly, that the Netherlands authorities did not dispute that the applicant had served in the army , and, thirdly, that the applicant had in the meantime adduced proof of his identity, his account deserved more serious attention as soon as it was established that the general mobilisation was indeed still in force when the applicant left the army and fled to the Netherlands.

For me, this lack of rigorous scrutiny justifies the Court ' s decision not to follow the national courts ' assessment. It also leads me to the conclusion that, given what is at stake, and noting those facts which have been established, despite persistent doubts as to what actually happened, the balance should tip in the applicant ' s favour.