JOINT PARTLY DISSENTING OPINION OF JUDGES LEMMENS, VEHABOVIĆ AND SCHUKKING

1. We agree with the majority’s conclusions that the general situation in Afghanistan cannot be deemed such that any removal there would necessarily breach Article 3 of the Convention (see paragraphs 105-106 of the judgment), and that the situation of Sikhs in Afghanistan cannot be deemed such that they belong to a group that is systematically exposed to a practice of ill-treatment (see paragraphs 107-112 of the judgment). We fully support the reasoning of the judgment leading to these conclusions. We are also in agreement with the majority’s view that the conclusions drawn by the competent domestic authorities as regards the lack of credibility of the applicants’ accounts of their flight and of the events preceding it were reached following a thorough examination and set out in decisions containing rational grounds that the Court has no reason to doubt (see paragraphs 114-117 of the judgment).

2. As regards the assessment by the domestic authorities of the foreseeable consequences of the removal of the applicants to Afghanistan (see paragraphs 118-128 of the judgment), we would like to make the following remarks.

3. The applicants’ complaint relating to this issue consists of a substantive component and a procedural component: they claim that, having regard to the well-documented difficult situation faced by Sikhs in Afghanistan, as well as to their individual circumstances, they would fall victim to a situation incompatible with Article 3 of the Convention, if removed, and they claim that the competent authorities failed to make a full examination of the risks to which they would be exposed on returning to that country (see paragraphs 91-92 of the judgment).

4. As regards the procedural component of the applicants’ complaint, it is recalled that according to the Court’s case-law a claim that the expulsion of an individual would expose him or her to a real risk of being subjected to treatment contrary to Article 3 of the Convention must, owing to the absolute nature of the prohibition enshrined in that provision, necessarily be subjected to a rigorous scrutiny (see Jabari v. Turkey , no. 40035/98, § 39, ECHR 2000-VIII). That scrutiny should entail a thorough assessment – in which account is taken of all the information brought to the authorities’ attention (see F.G. v. Sweden [GC], no. 43611/11, § 156, 23 March 2016) – of the situation in which the individual is likely to find him- or herself on returning. Regarding the burden of proof in expulsion cases, it is the Court’s well-established case-law that it is in principle for the applicant to adduce evidence capable of proving that there are substantial grounds for believing that, if the measure complained of were to be implemented, he or she would be exposed to a real risk of being subjected to treatment contrary to Article 3; and that where such evidence is adduced, it is for the Government to dispel any doubts about it (see Saadi v. Italy [GC], no. 37201/06, § 129, ECHR 2008; NA. v. the United Kingdom , no. 25904/07, § 111, 17 July 2008; F.G. v. Sweden , cited above, § 120, and J.K. and Others v. Sweden [GC], no. 59166/12, § 91, 23 August 2016). Moreover, although a number of individual factors may not, when considered separately, constitute a real risk, the same factors may give rise to a real risk when taken cumulatively and when considered in a context of general violence and heightened insecurity. Both the need to consider all relevant factors cumulatively and the need to give appropriate weight to the general situation in the country of destination derive from the obligation to consider all the relevant circumstances of the case (see NA. v. the United Kingdom , cited above, § 130, and, more recently, N.A. v. Finland , no. 25244/18, § 81, 14 November 2019, not yet final).

5. Turning to the case at hand, it is firstly noted that in the Dutch country-specific asylum policy concerning Afghanistan, Sikhs have been designated both as an “at-risk group” and a “vulnerable minority group”. For a person belonging to a group so designated, limited indications suffice to make a plausible case that he or she fears “serious harm” within the meaning of section 29(1)(b) of the Aliens Act 2000 (see also C2/3.2 and 3.3 of the Aliens Act 2000 Implementation Guidelines). Serious harm within the meaning of that section includes treatment contrary to Article 3 of the Convention (see paragraphs 54-64 of the judgment). We consider that this Dutch country-specific asylum policy is a nuanced one; it acknowledges the difficulties that religious minority groups, in particular Sikhs, encounter in Afghanistan and accepts that members belonging to such a group might be in need of international protection, depending on their individual circumstances, which is, in our view, in line with the UNHCR Guidelines and EASO reports (see paragraphs 73-81 of the judgment). The policy is further regularly reviewed on the basis of updated country reports prepared by the Dutch Ministry of Foreign Affairs and information from various other international sources.

6. Secondly, as stated in paragraph 123 of the judgment, the assessment of the applicants’ claims at the domestic level – in both sets of asylum proceedings – was in essence confined to the question whether the criteria set out in the above-mentioned country-specific asylum policy had been fulfilled. When applying this policy to the case at hand, the competent authorities concluded that the applicants had not complied with the relevant requirements since their accounts as regards any past ill-treatment suffered by themselves were found not to be credible and no human rights violations committed against other Sikhs in their “immediate circle” had been established; the authorities concluded that they had therefore not succeeded in establishing the required “limited indications”. We fully accept that in terms of the Dutch asylum policy in force, the required “limited indications” indeed cannot be considered established on the basis of those parts of the applicants’ asylum accounts.

7. However, while past ill-treatment provides a strong indication of a future, real risk of treatment contrary to Article 3, the absence of past ill-treatment does not, by and of itself, rule out the existence of such a risk (see paragraph 119 of the judgment). In other words: if no credence can be given to allegations of past ill-treatment of a person, this does not always and automatically lead to the conclusion that there is no evidence of a real risk of that person being subjected to treatment contrary to Article 3 of the Convention upon return to his or her country of origin. Fact-specific factors that are not related to past ill-treatment but which have been put forward by the individual in support of his or her claim of future ill-treatment should also be taken into consideration, as the rigorous scrutiny referred to in the case-law of the Court entails a thorough assessment taking account of all the information brought to the authorities’ attention and relating to the situation in which the individual is likely to find him- or herself upon return.

8. On the basis of the foregoing, we are in full agreement with paragraph 124 of the judgment, which points out that owing to the manner in which the country-specific policy was applied in the present case, there was no room for a full examination of the applicants’ claim that their return to Afghanistan would nevertheless expose them to a situation incompatible with Article 3 of the Convention, as the individual circumstances submitted by the applicants – summarised in paragraph 122 of the judgment –, although noted by the competent authorities, were not included in the latter’s risk assessment. As a result, these individual circumstances were thus unable to have any impact on the outcome of that assessment. The above considerations lead us to the conclusion that the risk assessment conducted by the competent authorities in the present case did not satisfy the procedural requirement under Article 3 of the Convention (see case-law referred to in paragraph 4, above).

9. In reaching this conclusion we have not overlooked the fact that at the domestic level the final decisions were taken in the context of repeat asylum applications. In both cases the applicants – who were represented by the same lawyer – relied on, inter alia , the worsening security situation of Sikhs in Afghanistan and referred to the hardships that they would face upon return (see paragraphs 25, 26 and 44 of the judgment). While the new asylum request of the applicants in application no. 68377/17 was declared inadmissible for the reason that their claim was found not to amount to new elements or findings that were relevant for the assessment of their request, the applicants’ new asylum request under application no. 530/18 was rejected as being manifestly ill-founded for the reason that the new elements identified could not lead to a different outcome. In the reasoning of both final decisions it was held that the applicants had still not made plausible the existence of “limited indications” as required by the asylum policy in force (see paragraphs 28 and 46 of the judgment). [3]

10. It is true that the Court has accepted that States may confine the assessment of a repeat asylum application to an examination of the question whether relevant new facts have been brought forward, and that when no such facts are found they are not required to conduct their assessment with the same thoroughness. However, this applies only when the original asylum application has been examined with the requisite thorough scrutiny (see Sultani v. France , no. 45223/05, § 65, ECHR 2007 ‑ IV (extracts), and Sow v. Belgium , no. 27081/13, § 79, 19 January 2016). As regards the case at hand, it is noted that the manner in which the country-specific asylum policy was applied precluded some of the arguments which the applicants had put forward in support of their Article 3 claim from being examined, both in the first and the second set of asylum proceedings.

11. Further, it is true that the Government, in their observations before this Court, did address some of the individual circumstances which the applicants had raised in this connection (see paragraph 98 of the judgment). In our view, however, this does not detract from the fact that those circumstances received insufficient scrutiny at the domestic level.

12. As said above, it is the manner in which the country-specific asylum policy was applied in the present case that was problematic, not the policy itself. A slight amendment of the IND Working Instruction might be a possible way to solve that problem. This Working Instruction, setting out what the policy rules on “vulnerable minority groups” mean in practice, including what “limited indications” entail, exclusively refers to examples of past ill-treatment (see paragraph 59 of the judgment). It seems to us that it might be useful to modify the Working Instruction so as to recall that all relevant circumstances should be taken into consideration in the risk assessment, including those relating to foreseeable hardships which the individual has alleged he or she will face on returning. However, there might be other, more suitable ways to address this procedural issue; it is for the domestic authorities to evaluate those possibilities. The United Kingdom Home Office’s Country Policy and Information Note “Afghanistan: Hindus and Sikhs”, points 2.3.12 - 2.3.13 (see paragraph 84 of the judgment) may serve as a source of inspiration.

13. Unlike the majority, we see no grounds for also addressing the substantive component of this part of the applicants’ complaint, for the following reasons.

14. Firstly, it is recalled that the machinery of complaint to the Court is subsidiary to the national systems safeguarding human rights, and that the Court does not itself examine asylum applications. Its main concern is whether effective guarantees exist that protect an asylum-seeker against being removed, directly or indirectly, to his or her country of origin without a proper evaluation of the risks he or she faces from the standpoint of Article 3 of the Convention (see, among many other authorities, F.G. v. Sweden , cited above, §§ 117-18). Since the national authorities have not yet carried out a full examination of the applicants’ claim that their return to Afghanistan would expose them to a situation incompatible with Article 3 of the Convention – neither in the first, nor in the second set of asylum proceedings – it is, at this stage, for them to do so.

15. Secondly, it is also recalled in this respect that the national authorities are, as a general principle, best placed to assess the facts and the credibility of asylum claimants since it is they who have an opportunity to see, hear and assess the demeanour of the individuals concerned (see F.G. v. Sweden , cited above, § 118). Taking account of the fact that the assessment of the alleged Article 3 risk entails a full and ex nunc evaluation and that some time has elapsed since the final decisions were taken on the applicants’ second asylum applications, we take the view that the competent domestic authorities are in a much better position to carry out this examination, to draw all the relevant threads together and to assess whether or not the applicants’ individual circumstances – which are fact-sensitive – will, considered cumulatively and in the context of the general situation in Afghanistan and the specific situation of Sikhs in that country, amount to such serious discrimination and/or other forms of inhuman or degrading treatment as to overstep the severity threshold of Article 3 of the Convention.

16. By dissenting on this point, we are not expressing a view on the outcome of that risk assessment. However, we cannot support the view that the applicants’ contention should be discarded as untenable from the outset.

[1] . The youngest son had not yet been born.

[2] . A branch of the militant Islamist group Islamic State of Iraq and the Levant, active in Afghanistan and Pakistan.

[3] The somewhat different approach to the issue of new elements or findings in both cases was, for one of us, a reason to disagree with the joinder of both applications (see paragraph 85 of the judgment). However, we all agree, including in respect of the first case (application no. 68377/17), that the authorities did in fact pay attention to the merits of the applicants’ claims.