JOINT DISSENTING OPINION OF JUDGES KJØLBRO AND KOSKELO

1. Regretfully, we are unable to subscribe to the majority’s conclusion that the Lithuanian authorities failed “ to sufficiently assess the existence in Tajikistan of a practice of ill-treatment of persons who were in a similar situation to the applicants ”, and, consequently, that “ returning the applicants to Tajikistan without a fresh assessment of that aspect would breach Article 3 of the Convention ” (point two of the operative provisions). Therefore, and for the reasons explained below, we have voted against points two and three of the operative provisions.

2. The applicants are failed asylum-seekers from Tajikistan facing expulsion from Lithuania. In such situations, the Court has two options. It may assess the complaint concerning the alleged risk of ill-treatment in Tajikistan on the merits and find either a violation or no violation of Article 3 of the Convention. In the alternative, the Court may find a procedural violation of that provision. The latter option, adopted by the majority in the present case, would normally be taken in situations where the Court is unable to assess the alleged risk on the merits but has identified serious shortcomings in the domestic proceedings, thereby giving the domestic authorities a chance to reassess the alleged risk in the light of the Court’s finding.

3. In our view, based on the relevant principles established in its case-law, the Court has a sufficient evidentiary basis to assess the alleged risk on the merits and to reach the conclusion that there will be no violation of Article 3 of the Convention in the event of expulsion. In addition, we consider it necessary to distance ourselves from the majority’s findings to the effect that there were shortcomings in the domestic proceedings. These conclusions are difficult, if not impossible, to reconcile with ordinary practice in asylum proceedings at the domestic level.

Review of the assessment conducted by the domestic authorities

4. At the outset, we note that there is no basis for criticising the domestic asylum proceedings. The applicants benefited from two sets of asylum proceedings, and their requests were assessed by administrative and judicial authorities. The applicants were assisted by interpreters during questioning, several times, and they were also assisted by lawyers and had ample opportunity to present arguments and evidence. Furthermore, it transpires from the reasoning that the domestic authorities, administrative as well as judicial, assessed the available general background information about the country of origin as well as the applicants’ individual circumstances.

5. When rejecting the applicants’ asylum request, the domestic authorities, in both sets of proceedings, relied on several arguments, on which we will briefly comment.

6. The authorities dismissed the applicants’ account of problems and threats which they had personally experienced from the Tajik authorities (see paragraphs 14 and 30 of the judgment). The majority accept this part of the assessment (see paragraph 80 of the judgment), to which conclusion we can subscribe.

7. As for their membership of the Islamic Renaissance Party (IRPT), the authorities adopted a more cautious approach. They proceeded on the basis that the first applicant had been an IRPT member, but at the same time they found that he had not been particularly active, that his participation in its activities had been limited, and that he was no longer active, an assessment partly based on the absence of evidence to the contrary (see paragraphs 13, 24, 31 and 37 of the judgment).

8. In this context, the authorities considered the available background information and country reports and found that they documented a risk of ill ‑ treatment in respect of high-ranking, leading and active members of IRPT or critics and dissidents, but not all IRPT members (see paragraphs 14, 31 and 37 of the judgment).

9. Furthermore, the authorities relied on the fact that it had not been demonstrated that the applicants were of any interest to the authorities; they had not been sought by the authorities and there had been no attempt to arrest them (see paragraphs 14, 15, 31 and 35 of the judgment).

10. Without going into details on the numerous available country reports and materials, some of which are quoted in the judgment (see paragraphs 47 to 54 of the judgment), we take the view that the authorities’ reading of the available sources is reasonable and is sufficiently supported by the relevant materials.

11. We consider that the available country materials do not support the conclusion that any member of IRPT, irrespective of the nature, the scope and the level of their political activities, past and present, would run a risk of ill-treatment. Therefore, inevitably, the risk assessment must comprise an assessment of the individual circumstances of the person seeking asylum, and that is exactly what the domestic authorities did.

Our position

12. In the light of the foregoing considerations, we find it necessary to distance ourselves from the way in which the majority presents and reads the relevant country reports and materials (see paragraphs 83 to 86 of the judgment).

13. More specifically, with regard to our difficulties with the reasoning adopted by the majority on the substantive assessment of the situation in the country of origin (see paragraphs 83 to 86 of the judgment), we find it important to note the following.

14. The applicants have argued, before both the domestic authorities and the Court, that they belong to a group that is being systematically targeted by the Tajik authorities and, consequently, that there is a real risk that they will be ill-treated in the event of expulsion. In that context, we find it important to recall the general principles on the burden of proof in cases concerning Article 3 of the Convention.

15. 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 would be exposed to a real risk of being subjected to treatment contrary to Article 3 (see, for example, F.G. v. Sweden [GC], no. 43611/11, §§ 113 and 127, 23 March 2016; J.K. and Others v. Sweden [GC], no. 59166/12, §§ 91 and 116-17, 23 August 2016).

16. More specifically, it is for the applicant to substantiate any allegation to the effect that he or she is a member of a group systematically exposed to a practice of ill-treatment, and after that has been sufficiently demonstrated, the protection of Article 3 of the Convention comes into play when the applicant establishes, where necessary on the basis of the relevant sources, that there is serious reason to believe in the existence of the practice in question and his or her membership of the group concerned (see, for example, Saadi v. Italy [GC], no. 37201/06, § 132, ECHR 2008, and J.K. and Others, cited above, §§ 103-05).

17. In the present case, the first applicant was unable to demonstrate that he was a high-ranking or leading or active IRPT member. On the contrary, the domestic authorities reached the conclusion that the applicant had been a member of the IRPT, but that he had not been particularly active and that he was no longer active.

18. In our view the Court has no grounds for calling into question the facts as established by the domestic authorities. On that basis, and having regard to the available background information about Tajikistan, the first applicant has failed to demonstrate that he is a member of a group systematically exposed to a practice of ill-treatment.

19. What the majority does in the present case is actually to reverse the burden of proof, requiring the domestic authorities, despite the absence of evidence in available and reputable sources, to provide proof that ordinary members are not exposed to a real risk of ill-treatment in case of expulsion.

20. More importantly, the majority identify three concrete shortcomings in the domestic assessment of the applicant’s arguments (see paragraphs 87 to 89 of the judgment), but here again we cannot follow the majority in their criticism of the domestic authorities on these points.

21. In this regard we recall that before the domestic authorities, the applicants had relied on (1) specific country reports, (2) press articles and (3) information on other individuals who had experienced problems (see paragraphs 20, 28 and 34 of the judgment).

22. Regarding the first aspect (country reports relied on by the applicants), we would like to point out the following: the domestic authorities were fully aware and took account of the relevant country reports and materials. In our experience, it is not common practice in domestic asylum proceedings for domestic authorities to engage in detailed discussion and analysis of each and every relevant country report. The amount of such background information concerning countries of origin is simply too vast and voluminous and, asylum authorities therefore often refer to the available country reports without reproducing their content in detail. In other words, the fact that the authorities did not expressly discuss the relevance of the reports mentioned by the applicants cannot in itself be taken to imply that the authorities failed to conduct a sufficiently thorough assessment of all the relevant reports on Tajikistan. In our view they did.

23. Regarding the second aspect (news articles relied on by the applicant), we note that the press articles concern interviews with representatives of the IRPT and their account of the situation in Tajikistan. In processing asylum requests, it is important to base the assessment on objective and impartial information from national and international authorities and organisations. The Court would normally do the same (see Sufi and Elmi v. the United Kingdom , nos. 8319/07 and 11449/07, §§ 230-33, 28 June 2011). Therefore, we fail so see how this aspect can in any shape or form be characterised as a shortcoming in the domestic assessment of the alleged risk.

24. Regarding the third aspect (other individuals’ experiences referred to by the applicants), we would emphasise the following: at the domestic level, the examination of requests for asylum or subsidiary protection is, in general, based on an assessment of the account given by the individual asylum-seeker, as well as on evidence or documents presented by and relied on by the applicant, reviewed in the light of available information about the country of origin, an approach that is similar to the approach adopted by the Court in such cases (see, for example, F.G. v. Sweden , cited above, § 114, and A.M. v. France , no. 12148/18, § 117, 29 April 2019). Expecting the domestic asylum authorities to inquire into, and seek information about, other individuals unrelated to the asylum-seeker’s request would, in our view, place the domestic authorities in an impossible position by expecting them to conduct investigations into the circumstances and fate of third parties mentioned by an asylum-seeker during an interview. It is common practice in asylum cases to rely on publicly available material, in particular country reports, as well as statements by the individual asylum seeker and any evidence presented in support thereof.

25. Therefore, concerning the alleged procedural shortcomings, we would take the view that neither separately nor in combination can they justify the finding of a procedural violation in the present case, and more importantly, they impose excessive and unjustified burdens on domestic authorities in asylum proceedings, disregarding both the standards set out in the Court’s established case-law and the ordinary practice in asylum proceedings at the domestic level.

APPENDIX

List of applicants:

No.

Applicant’s Name

Year of birth

Nationality

Place of residence

1.

T.K.

1981

Tajik

Vilnius (Lithuania)

2.

O.O.

1985

Tajik

Vilnius (Lithuania)

3.

H.T.

2005

Tajik

Vilnius (Lithuania)

4.

F.T.

2006

Tajik

Vilnius (Lithuania)

5.

S.T.

2008

Tajik

Vilnius (Lithuania)

6.

A.K.

2013

Tajik

Vilnius (Lithuania)