DISSENTING OPINION OF JUDGE FURA

1. I do not share the majority's view that the applicant's deportation to Iran would be in violation of Article 3 of the Convention. Here are my reasons.

2. Like the Government, I find that the applicant failed to substantiate that he would be exposed to a real risk of being arrested and subjected to treatment contrary to Article 3 if deported to Iran.

3. The starting point for anyone alleging a breach of the Convention is to substantiate the allegation. This onus on the applicant can be difficult to discharge but it must nonetheless be done, even in cases like the one at hand. In principle, the applicant has to adduce evidence capable of proving that there are substantial grounds for believing that, if the measure complained of were to be implemented, he would be exposed to a real risk of being subjected to treatment contrary to Article 3 (see N. v. Finland, no. 3885/02, 26 July 2005, § 167, and NA. v. the United Kingdom, no. 25904/07, 17 July 2008, § 111). It is only when and if such evidence is adduced that it is for the Government to dispel any doubts, failing which there would be a violation.

4. I am not convinced that the applicant has made out a prima facie case and that the necessary evidence has been adduced, even with the additional medical certificate dated November 2008.

5. In examining the case before them the domestic authorities must assess facts that are presented by the parties. In this exercise the authorities might come across difficulties when facts are in dispute. Evidence presented must be evaluated and credibility will be of the essence. Domestic courts are normally better placed to do this than an international court, since they have had the opportunity to see and hear the parties.

6. In the present case, the applicant had his case tried in several instances domestically. The review was both administrative and judicial. After arriving in 2004 in Sweden at the age of 38 he asked for asylum. He was assisted by the same legal counsel from the outset and all through the proceedings, including before this Court. He informed the authorities that he had been kept in detention in Iran and tortured but that he had managed to escape in 2003. He submitted a medical certificate before the Migration Board.

7. The mentioned certificate issued by a general practitioner gave an indication that the applicant's injuries might have been caused by ill-treatment or torture. Since the authorities had doubts, however, they ought to have, on their own motion according to the majority (see paragraph 53), directed that an expert opinion be obtained as to the probable cause of the applicant's scars. I am far less assured than the majority and would be reluctant to give any specific instructions to the domestic authorities as to what procedural measure to take and even less willing to advise on what conclusions to draw from certain evidence introduced in a case where I have not had the benefit of seeing the parties and in which the relevant events took place a long time ago.

8. At a later stage the applicant added that he had been involved in organising demonstrations, without giving any details as to where they took place or as to their contents. Also the nature of the applicant's criticism of the Iranian regime remains unclear to this day even though the applicant has been asked specifically about this.

9. A forensic medical report issued in November 2008, after the domestic authorities had finalised their examination, concluded that the findings strongly indicated that the applicant had been tortured in 2001.

10. In the majority's view, this forensic medical report is evidence enough to outweigh the inconsistencies of his story (see paragraphs 52 and 53 of the judgment). I respectfully disagree. To me all the evidence adduced must be taken together and evaluated as a whole and I cannot see that the Swedish authorities have failed in carrying out this task. Even if it is taken into account that they did not have the benefit of the forensic medical report and even allowing for the difficult general conditions in Iran, I cannot draw the same conclusion as the majority in this respect.

11. The applicant has not himself claimed that he runs a risk of being specially checked at the border. This is a conclusion the majority draws from the international reports about the general conditions and practices in Iran and in particular what returning Iranians can expect if they are not carrying any valid travel documents.

12. The applicant alleges that since he has been active organising demonstrations, detained and tortured, been abroad for a long time and received summonses he would be of interest to the Iranian authorities if he were to be returned to Iran today, 7 years later, and as a consequence would run a real risk of being subjected to treatment contrary to Article 3 of the Convention.

13. The fact that the applicant has in all probability been tortured in Iran is not enough in itself to substantiate that he runs a real risk of being tortured again if returned. Here my views differ from the majority (see paragraph 55). The majority's opinion that the onus rests with the State to dispel any doubts about the risk of the applicant's being subjected again to treatment contrary to Article 3 in the event that his expulsion proceeds does not follow the established case-law of the Court (see Saadi , among other authorities). Furthermore, I have difficulties to see how, in practice, a State should proceed in order to achieve this aim.

14. For all these reasons I cannot depart from the assessment made by the Swedish authorities and I fail to see that the applicant has substantiated his submissions.