PARTLY DISSENTING OPINION OF JUDGE ZUPANČIČ

I regret that I am unable to join the majority in finding no violation in this case.

The judgment is replete with details concerning the general situation in Iraq as well as with the particulars of the applicant ’ s individual situation. However, as I have pointed out in my other separate opinions, law is poorly equipped to deal with future events, i.e. in the vast majority of cases it deals with past historical events. The exceptions to this are rare, among them predictions for the purpose of pre-trial detention of the defendant ’ s likelihood to abscond, to repeat his offence or to interfere with the evidence, on the one hand, and predictions as to what is in the best future interest of the child in custody cases, on the other. In most other cases we deal with events that have already happened and are somehow frozen in the past.

A special sub-category of legal scholarship deals with the “prediction and prevention of harmful conduct” – and it is an established view that such predictions are speculative. The famous Gluecks ’ Prediction Tables [1] concerning juvenile delinquents were based on extensive and long-term statistical data, which in individual cases are not available. In other words, where statistically confirmed data on a sufficiently large sample are available, prediction as to what will happen makes some sense. In individual cases it is pure conjecture.

For example, in R v. Adams [1996] 2 Cr App R 467, [1996] Crim LR 898, CA and R v. Adams [1998] 1 Cr App R 377 , the well-known Bayes theorem was applied to assess the retrospective probability of a past event. Bayes theorem is a mathematical formula permitting the regression from an abstract probability to an ever more concrete likelihood. The use of this device in evidence law is a subject of controversy and yet it is the only mathematically rational mode of assessing the probability of a future event. On the basis of large statistical data it is used in insurance actuarial tables in order to assess the more specific probability, for example, of a particular driver being involved in a possible traffic accident.

Clearly, no such rational possibility exists in establishing the probability of torture of the asylum applicants upon their refoulement to the country of origin. Moreover, if these risks were to materialise, the Court would be unlikely to be apprised of them. It is a fact that the Court just does not know how many false negatives concerning torture upon refoulement to the country of origin it has adjudicated in the past. These are people we never hear from again.

Herein rests another important difference between an ordinary legal case concerning a past historical event, on the one hand, and a prognostic judgment concerning what will or will not happen in the future, on the other.

In cases concerning an historical event, with rare exceptions leading to the trial de novo and recently deriving mostly from the use of DNA evidence, any court ’ s judgment stands unperturbed. It stands as unconditionally final: res judicata pro veritate habetur . Thus the legal systems, with rare exceptions, are not adapted to the negative feedback from reality. Anyway, owing to this lack of contact with reality, law is not a science; its judgments about historical events are adamantly not, as Karl Popper would have put it, falsifiable.

However, when it comes to predictions as to what will happen upon refoulement to the country of origin, this is no longer true. Such judgments are falsifiable. The person so expelled, extradited or returned in fact will, or will not, suffer the consequences this Court had speculated about. The question remains whether this Court will ever be apprised of them (most likely not). Here, as opposed to most other legal cases, the negative feedback would be made available only if there was a legal instrument in place enabling the Court to verify the consequences of its conjecture concerning the future events.

In turn, the language of the UN Convention on Torture (UN CAT) prohibits, in its Art. 3 (1) [2] , the refoulement if the applicant would be in danger of being subjected to torture. Subsection (2) provides that the competent authorities must take into account all relevant considerations including, where applicable, the existence in the State concerned of a consistent pattern of gross, flagrant or mass violations of human rights.

Clearly, the latter criterion has to do with the abstract probability that must be taken into account, whereas “all relevant considerations” pertain to our Chahal test [3] , according to which the danger must be “real and personal”, that is to say concrete and specific. This is entirely logical, but the question remains as to what are these real risks of being subjected to treatment contrary to Article 3 of the ECHR in the receiving country. The unfortunate past experiences of the applicants in this case ought to be perceived as a concrete basis for the inference that something comparable is likely to happen to them upon being expelled to Iraq. However, the assessment of the probabilities is ineluctably subjective and speculative. [4]

In purely epistemological terms, this is nothing new as the law in action had always been obliged to deal with the dearth of evidence. In Roman law, for example, the praetor was bound to issue a judgment – he was mostly precluded from resorting to the non- liquet decision –, although the evidence was inconclusive or even scant. The obvious solution to this problem is to resort to presumptions, that is to say the burden of proof on the one hand and the carrying of the risk of non-persuasion on the other. In certain cases law has even resorted to fictions, which are very close to irrefutable presumptions.

The law may for example adopt a rule that the judge speculating about the defendant ’ s likelihood to abscond, must, when in doubt, follow the presumption that this will indeed happen, which means that he must rule in favour of pre-trial detention. More generally, in child custody cases the court is obliged to follow what it considers to be in the best interests of the child. When in doubt, it must follow this recommendation.

When it comes to the refoulement cases the obvious solution derives from Blackstone ’ s famous formulation: “All presumptive evidence of felony should be admitted cautiously; for the law holds it better that ten guilty persons escape, than that one innocent party suffer.” [5] Is it too much to ask the same concerning the innocents that are expelled or returned to their country of origin? With Blackstone, the presumptive probability is one to ten in favour of acquittal, namely of a person for whom there had almost certainly been a degree of probability that he had committed a crime.

A fortiori , such a presumption in favour of completely innocent people ought to be higher than that: argumentum de maiore ad minus.

II

We now turn to the specific details of this case. The applicant is 51 years of age, his wife is 50 and their son is 15 years old.

The applicants maintain that if they return to Iraq they risk persecution by al-Qaeda. The applicant husband had already been, and perhaps still is, on the al-Qaeda death list in that country. On 26 October 2004 the applicant husband had been the target of a murder attempt carried out by al-Qaeda, as a result of which he had been confined to hospital for a period of three months. In 2005, the applicant ’ s brother was kidnapped by al-Qaeda because of the applicant ’ s alleged collaboration with the Americans. The applicants then fled to Jordan and stayed there until December 2006. Some time thereafter a bomb was placed next to their house (the bomb did not explode as it was detected in time) and the perpetrator had later confessed that he had been paid by al-Qaeda to kill the applicant husband. In January 2008 the applicants had nevertheless returned to Baghdad. In October 2008 the applicant husband and his daughter had been shot at while driving. In this incident the daughter was killed. Subsequently, the family started to move around in Baghdad in order to avoid being killed. Allegedly, a masked terrorist group came looking for the applicant husband on 10 September 2011 at 10 p.m. (see § 16 of the judgment). The applicants also submitted a translated residence certificate/police report certifying that their house had been burned down by a terrorist group on 12 November 2011 (ibid.).

However, the Swedish Migration Board, while acknowledging that the applicants had proved their identity and that their asylum story was credible (§ 15), and while acknowledging also that they had been the victims of “severe violence and harassment”, dismissed their request for asylum mainly on the ground that they had not sufficiently shown that they would be unable to seek the domestic authorities ’ protection if returned to Iraq. On appeal by the applicants to the Migration Court, the Migration Board submitted that the further documentary evidence submitted on appeal (regarding the incidents of September and November 2011) were of “a simple nature and low value”. The Migration Court, in its decision upholding the Migration Board ’ s decision, held that the Iraqi authorities will “probably” be able and willing to protect the applicant and his family (§ 17). The Migration Court rejected the applicant husband ’ s allegations as to his poor health for which he could not obtain adequate hospital care in Iraq. The judgment, in paragraph 16, does not explain what the medical certificates submitted by the applicant actually certified. In paragraph 19 of the judgment we find a reference to the continued al-Qaeda threat in connection with the applicant ’ s political activity since he was interviewed in English in a TV debate.

A request for the re-examination of the case in light of additional evidence was refused by the Migration Board on 26 September 2012 (§ 19).

As usual, the grounds for the decision of the Swedish authorities were evidentiary and based on the estimated credibility of the applicants ’ allegations on the one hand, and on a perceived ability of the Iraqi authorities to provide protection on the other. Admittedly, as to evidentiary estimates of credibility, those made by the Swedish authorities are more accurate than any estimates, based on the case-file, which this Court could make.

At least two indisputable facts, however, on which there can be no doubt, concern the direct attack by al-Qaeda on the applicant on the one hand, and the death by shooting of his daughter in Baghdad on the other. These two facts are connected to the general situation in Baghdad and in Iraq, that is to say to the more or less continuous presence and threat of this terrorist organisation. The fact that someone had already been a direct victim of an attack of the sort described above should, in principle, lead this Court to examine very carefully (albeit based on imperfect induction) the unremitting danger to the applicants.

Again, irrespective of the allegedly low evidentiary value of some of the proofs submitted to the Swedish authorities, it is irrational to maintain that the burden of proof and the risk of non-persuasion ought to be squarely on the shoulders of the applicants. The attacks on the applicant, on the one hand, and the death of his daughter at the hands of al-Qaeda, on the other, are more than sufficient to create the prima facie case for the applicants ’ asylum request. In turn, this means that the burden of proof and the risk of non-persuasion should be on the state – and this especially so before the European Court of Human Rights. The evidentiary burden, as distinct from the burden of proof, is therefore shifted on to the respondent state to prove that the applicant (or applicants in this case case) will not, on their return to Iraq, be subjected to conditions or situations which would contravene Article 3.

III

As in so many other Swedish cases one is here confronted with the outlandish approach to the appraisal of evidence before the Swedish Migration authorities, as if the lack of credibility of the applicants on some issues would in itself nullify the evidentiary value of other well-attested facts.

In any event, there is repeated speculation as to what will or will not happen upon the expelling of the applicants to their country of origin, as if the credibility of the applicants on some of the issues submitted to the Swedish Migration Board would prove that the rest of their allegations, too, are without probative value. For example, it is maintained (by the Migration Board) that the burning of the applicants ’ house has not been sufficiently proved and that this lack of proof casts a bad light on other evidence adduced by the applicants. This contagion effect is a constant in Swedish cases. The Migration Board in particular is willing to overlook hard facts due to the perceived lack of credibility of the applicants on other alleged facts at hand. But the issue is not the (dis)honesty of the immigrants, who will obviously try by all possible means to avoid being expelled.

It cannot be overemphasised in this and in other similar cases that the evidentiary burden and the risk of non-persuasion, once the prima facie case has been established in favour of the applicants, lies squarely on the Government.

The European Court of Human Rights is the court of last resort where this ought to happen.

STATEMENT OF DISSENT BY JUDGE DE GAETANO

I do not agree with the finding that the implementation of the deportation order against the applicants would not give rise to a violation of Article 3 of the Convention, and this for substantially the same reasons advanced by Judge Zupančič in parts II and III of his separate opinion.

[1] . See, for example, Kurt Weiss, The Glueck Social Prediction Table--An Unfulfilled Promise , 65 (3) (6) Journal of Criminal Law and Criminology 397 (1975) at http://scholarlycommons.law.northwestern.edu/cgi/viewcontent.cgi?article=5907&context=jclc [Updated  22 April 2015]

[2] . UN CAT, Article 3:

1. No State Party shall expel, return (" refouler ") or extradite a person to another State where there are substantial grounds for believing that he would be in danger of being subjected to torture.

2. For the purpose of determining whether there are such grounds, the competent authorities shall take into account all relevant considerations including, where applicable, the existence in the State concerned of a consistent pattern of gross, flagrant or mass violations of human rights.

[3] . The Case of Chahal v. the U.K ., Application no. 22414/93 , 15 November 1996, § 74: “However, it is well established in the case-law of the Court that expulsion by a Contracting State may give rise to an issue under Article 3 (art. 3), and hence engage the responsibility of that State under the Convention, where substantial grounds have been shown for believing that the person in question, if expelled, would face a real risk of being subjected to treatment contrary to Article 3 (art. 3) in the receiving country .  In these circumstances, Article 3 (art. 3) implies the obligation not to expel the person in question to that country (see the Soering v. the United Kingdom judgment of 7 July 1989, Series A no. 161, p. 35, paras. 90-91, the Cruz Varas and Others v. Sweden judgment of 20 March 1991, Series A no. 201, p. 28, paras. 69-70, and the above-mentioned Vilvarajah and Others judgment, p. 34, para. 103).”   (Emphasis added.)

[4] . As a former member of the UN Committee against Torture (1995-1998) I can decidedly maintain that before the UN CAT the request for an interim measure in this case would, at least at that time, readily have been made admissible under Art. 22 of the UN Convention against Torture:

Article 22

1. A State Party to this Convention may at any time declare under this article that it recognizes the competence of the Committee to receive and consider communications from or on behalf of individuals subject to its jurisdiction who claim to be victims of a violation by a State Party of the provisions of the Convention. No communication shall be received by the Committee if it concerns a State Party which has not made such a declaration.

2. The Committee shall consider inadmissible any communication under this article which is anonymous or which it considers to be an abuse of the right of submission of such communications or to be incompatible with the provisions of this Convention.

3. Subject to the provisions of paragraph 2, the Committee shall bring any communications submitted to it under this article to the attention of the State Party to this Convention which has made a declaration under paragraph I and is alleged to be violating any provisions of the Convention. Within six months, the receiving State shall submit to the Committee written explanations or statements clarifying the matter and the remedy, if any, that may have been taken by that State.

4. The Committee shall consider communications received under this article in the light of all information made available to it by or on behalf of the individual and by the State Party concerned.

5. The Committee shall not consider any communications from an individual under this article unless it has ascertained that:

(a) The same matter has not been, and is not being, examined under another procedure of international investigation or settlement;

(b) The individual has exhausted all available domestic remedies; this shall not be the rule where the application of the remedies is unreasonably prolonged or is unlikely to bring effective relief to the person who is the victim of the violation of this Convention.

6. The Committee shall hold closed meetings when examining communications under this article.

7. The Committee shall forward its views to the State Party concerned and to the individual.

8. The provisions of this article shall come into force when five States Parties to this Convention have made declarations under paragraph 1 of this article. Such declarations shall be deposited by the States Parties with the Secretary-General of the United Nations, who shall transmit copies thereof to the other States Parties. A declaration may be withdrawn at any time by notification to the Secretary-General. Such a withdrawal shall not prejudice the consideration of any matter which is the subject of a communication already transmitted under this article; no further communication by or on behalf of an individual shall be received under this article after the notification of withdrawal of the declaration has been received by the Secretary General, unless the State Party has made a new declaration.

The Committee, its Working group of the Rapporteur in the case would have transmitted to the Government a request that it take such interim measures as the Committee considers necessary to avoid irreparable damage to the victim or victims of alleged violations . It is worth noting that the UN CAT initially takes such decisions on the basis of unilateral information submitted by the complainant.

Moreover, UN CAT is a Convention covering 66 States worldwide, and one would expect the standards of a European regional Court to be higher than the standards of the world at large.

On 14 August 2014, Sweden had 13 interim measure cases pending before the UN CAT under Art. 22 of the UN Convention against Torture. In 20 cases the interim measure had been approved, in 41 cases it had been denied. Apart from Switzerland (155 cases), Sweden with its 123 cases before the UN CAT is in second place concerning requests for an interim measure by the UN CAT. See Status of the Communications dealt with by UN CAT under Art. 22 of the UN Convention against Torture at http://www.ohchr.org/en/hrbodies/cat/pages/catindex.aspx , Statistical Survey on Individual Complaints.

See also UN CAT/C/3/Rev.6 at http://daccess-dds-ny.un.org/doc/UNDOC/GEN/G14/152/79/PDF/G1415279.pdf?OpenElement , Rule 113 at p. 34:

Rule 113 Conditions for admissibility of complaints

With a view to reaching a decision on the admissibility of a complaint, the Committee, its Working Group or a Rapporteur designated under rules 104 or 112, paragraph 3, shall ascertain:

(a) That the individual claims to be a victim of a violation by the State party concerned of the provisions of the Convention. The complaint should be submitted by the individual himself/herself or by his/her relatives or designated representatives, or by others on behalf of an alleged victim when it appears that the victim is unable personally to submit the complaint, and, when appropriate authorization is submitted to the Committee;

(b) That the complaint is not an abuse of the Committee’s process or manifestly unfounded; (c) That the complaint is not incompatible with the provisions of the Convention;

(d) That the same matter has not been and is not being examined under another procedure of international investigation or settlement;

(e) That the individual has exhausted all available domestic remedies. However, this shall not be the rule where the application of the remedies is unreasonably prolonged or is unlikely to bring effective relief to the person who is the victim of the violation of this Convention;

(f) That the time elapsed since the exhaustion of domestic remedies is not so unreasonably prolonged as to render consideration of the claims unduly difficult by the Committee or the State party.

Rule 114 Interim measures

1. At any time after the receipt of a complaint, the Committee, a working group, or the Rapporteur(s) on new complaints and interim measures may transmit to the State party concerned, for its urgent consideration, a request that it take such interim measures as the Committee considers necessary to avoid irreparable damage to the victim or victims of alleged violations .

2. Where the Committee, the Working Group, or Rapporteur(s) request(s) interim measures under this rule, the request shall not imply a determination of the admissibility or the merits of the complaint. The State party shall be so informed upon transmittal.

3. The decision to grant interim measures may be adopted on the basis of information contained in the complainant’s submission. It may be reviewed, at the initiative of the State party, in the light of timely information received from that State party to the effect that the CAT/C/3/Rev.6 35 submission is not justified and the complainant does not face any prospect of irreparable harm, together with any subsequent comments from the complainant.

4. Where a request for interim measures is made by the Working Group or Rapporteur(s) under the present rule, the Working Group or Rapporteur(s) should inform the Committee members of the nature of the request and the complaint to which the request relates at the next regular session of the Committee.

5. The Secretary-General shall maintain a list of such requests for interim measures.

6. The Rapporteur on new complaints and interim measures shall also monitor compliance with the Committee’s requests for interim measures.

7. The State party may inform the Committee that the reasons for the interim measures have lapsed or present arguments why the request for interim measures should be lifted.

8. The Rapporteur, the Committee or the Working Group may withdraw the request for interim measures. (Emphasis added.)

[5] . William Blackstone, Commentaries on the Laws of England , 1897, p. 713 .