DISSENTING OPINION OF JUDGE SPIELMANN JOINED BY JUDGE ZUPANČIČ

I am unable to agree with the majority that there has been no violation of Articles 3 and 8 of the Convention.

Even if I agree that, having regard to the high threshold set by Article 3, particularly where the case does not concern the direct responsibility of the Contracting State for the possible harm, the present case, in respect of the applicant ’ s health situation, does not disclose the very exceptional circumstances established by its case-law (paragraph 94 of the judgment), I have much more difficulty in following the majority view concerning the possibility for the applicant to resettle elsewhere in Afghanistan.

In the crucial paragraph 97 of the judgment, the majority recall that Article 3 does not, as such, preclude Contracting States from placing reliance on the existence of an internal flight alternative in their assessment of an individual ’ s claim that a return to his or her country of origin would expose him or her to a real risk of being subjected to treatment proscribed by that provision.

However, as a precondition for relying on an internal flight alternative, certain guarantees have to be in place. The majority rightly emphasise in this respect that the person to be expelled must be able to travel to the area concerned, gain admittance and settle there, failing which an issue under Article 3 may arise, all the more so if in the absence of such guarantees there is a possibility that the person expelled will end up in a part of the country of origin where he or she may be subjected to ill-treatment.

Those are questions of fact and in my view it is the respondent Government which should satisfy the Court that, on the basis of the facts, resettlement is possible, not only in theory, but also in practice. Admittedly the Migration and Aliens Appeals Boards conducted an examination of the applicant ’ s case. But I cannot find any support in the file for the opinion that, in the particular circumstances of the case, it is possible and reasonable to expect the applicant to resettle elsewhere in Afghanistan . This issue should have been examined separately and thoroughly by the domestic authorities. In my view, the existence of such a thorough and separate examination, focusing on internal flight alternatives and concrete possibilities of resettlement, is not apparent from the file and I cannot therefore support the majority view that there has been no violation of Article 3 of the Convention.

Concerning, more specifically, the complaint as regards the final decision on the applicant ’ s access to his children and its compatibility with Article 8 of the Convention, I am unable to agree with the domestic authorities ’ reasoning, which is upheld by the majority. This reasoning was based to a large extent on the fact that, if the children were to have contact with the applicant, they would be exposed to yet another separation from him when the expulsion order was implemented and that it was not therefore in the children ’ s best interest to see him. The authorities also relied, unconvincingly in my view, on the fact that, even if the children were able to create a safe relationship with the applicant during limited access arrangements, he would subsequently be expelled and therefore separated from his children until May 2013 (see District Court ’ s decision of 18 November 2008, paragraph 126 of the judgment). This cannot be a reason to refuse access. Nor can it be justifiable to refuse access at an earlier stage on the ground that, in any event, access will potentially become possible after May 2013 (see paragraph 108 of the judgment concerning the non-communicated and inadmissible part of the application under Article 8). Hence, in my view, the interference with the applicant ’ s rights under Article 8 of the Convention was not proportionate. I would like to stress in this context that the possibility of access after May 2013 is purely theoretical, as it is more than doubtful that the applicant would, as a matter of fact, be granted leave to return to Sweden in 2013. In other words, and to sum up, the denial of access, in a situation where contact with the children has been impossible for such a long time, constitutes a disproportionate interference with a right protected by Article 8.

Finally, I would like to emphasise that the mere fact that the applicant was placed in a position enabling him to put forward all arguments in favour of obtaining a visiting arrangement and also had access to all relevant information which was relied on by the courts (see paragraph 128 of the judgment) is insufficient to convince me that the Swedish courts struck a fair balance between the interests of all concerned or that there has been no violation of Article 8 of the Convention.