Abstract
National authorities are often reluctant to arrange for a forensic medical examination or to grant important weight to forensic medical reports in asylum cases. They do not (fully) accept that a forensic medical report may change their initial assessment of the credibility of the applicant’s asylum account. They may argue that a physician cannot establish the context (date, location, perpetrator) in which the alleged ill-treatment has taken place or the cause of a specific scar or medical problem of the applicant. Moreover, they may contend that the physician concerned did not have the expertise to write a forensic medical report. This article examines how the European Court of Human Rights (ECtHR) and the Committee against Torture (CAT) have included forensic medical reports in their assessment of asylum cases and how they have dealt with the ‘context’, ‘causality’ and ‘expertise’ argument. It shows that these bodies do not accept that national authorities refrain from arranging a forensic medical examination or attach no or limited weight to a forensic medical report submitted by the applicant, just because the applicant has made inconsistent, incoherent or vague statements. They also do not accept general references to the ‘context’, ‘causality’ and ‘expertise’ argument. However, they have accepted these arguments in some individual cases, often without clear reasoning. The article concludes that the ECtHR and CAT could provide more guidance to national authorities concerning the role of forensic medical reports in asylum cases by explicitly weighing the seriousness of the credibility issues against the forensic medical report and by paying attention to the requirements for forensic medical reports laid down in the Istanbul Protocol.
Keywords
1. Introduction
How can asylum seekers make plausible that the risk that they will be subjected to torture or ill-treatment upon return to their country of origin is real? They can do this by substantiating that they were ill-treated in their country of origin in the past. Past ill-treatment is considered to be an important indicator of a future risk of such treatment. 1 However, substantiating past ill-treatment is not an easy task, as the perpetrators will generally prevent that they leave behind evidence of their actions. Moreover, asylum applicants generally have no or very limited documentary evidence in support of their asylum account. The UNHCR states that ‘cases in which an applicant can provide evidence of all his statements will be the exception rather than the rule. In most cases a person fleeing from persecution will have arrived with the barest necessities and very frequently even without personal documents’. 2 This means that in most cases the assessment of the credibility of the statements made by the asylum applicant (henceforth referred to as credibility assessment) plays a crucial role.
Some asylum seekers have scars on their body or physical or psychological problems as a result of ill-treatment. They may ask a physician to write a forensic medical report on their behalf, in an ultimate attempt to substantiate their claim of past ill-treatment. In such medical reports, conclusions are drawn with regard to the correlation between the signs and symptoms of torture or ill-treatment (physical or psychological) and the alleged event ill-treatment in the country of origin. 3 The European Court of Human Rights (ECtHR) and the Committee against Torture (CAT) have recognised the importance of such medical reports in individual cases. In some of their judgments and decisions, a medical report even seems to be the decisive factor for the conclusion that the applicant has been subjected to ill-treatment in the past and risks to become the victim of such treatment again, if he or she will be returned to his or her country of origin. 4
No systematic comparative research has been done on the use of forensic medical reports in and/or outside Europe. Nevertheless, it can be derived from reports, literature and case law, that national authorities in several EU Member States 5 are reluctant to arrange for a medical examination or to grant important weight to forensic medical reports in asylum cases. 6 They do not (fully) accept that a forensic medical report may change their initial credibility assessment. They give more weight to the fact that the applicant has made inconsistent, incoherent or vague statements. 7 In this context, there are three arguments, which are often raised by national authorities to refrain from arranging for a forensic medical report or attaching significant weight to it First, States may point to the fact that a physician (generally) cannot establish the location, date and perpetrator of and the reason for (the context of) the ill-treatment, which is important for the assessment of future risk. 8 Second, medical examinations can almost never establish with certainty whether the alleged ill-treatment caused a specific scar or physical or psychological problem of the applicant. 9 Most forensic medical reports conclude that there is a certain degree of causality between the alleged ill-treatment and the applicant’s scars or medical problems. 10 Third, States may argue that the physician concerned did not have the expertise to draw conclusions as to the correlation between the applicant’s scars or medical problems and the alleged event of ill-treatment. 11
The arguments raised by national authorities to refrain from arranging a forensic medical report or attaching significant weight to it, have been discussed in literature, mainly with regard to the United Kingdom 12 and the Netherlands 13 . However, no systematic research has been published on how the ECtHR and the CAT have dealt with these arguments. This article will therefore focus on this topic. It shows that some important standards concerning the ‘context’, ‘causality’ and ‘expertise’ argument can be derived from the ECtHR’s judgments and the CAT’s decisions and General Comments. However, this article also argues that the ECtHR and CAT could provide more guidance to national authorities on three points: the factors, which determine whether there is a duty on the national authorities to arrange a medical examination, the validity of the ‘context’ argument and the way the degree of causal relationship found in a forensic medical report and the expertise of the physician should be taken into account when deciding how much weight should be attached to this medical report. In particular this last point is based on the Istanbul Protocol, which contains guidelines for the impartial and objective documentation of torture. 14
More guidance may lead to a change in the use of forensic medical examinations on the national level. National courts may become more critical of the national administrative authorities’ reluctance to order and take into account forensic medical reports. Moreover, on the European Union level, the Court of Justice of the European Union (CJEU) may use this guidance to give a binding interpretation of EU legislation concerning forensic medical examinations and reports. Article 18 of the Asylum Procedures Directive provides for a duty to arrange for a forensic medical examination, where this is relevant for the assessment of the asylum application and to take into account forensic medical reports submitted by the asylum applicant in this assessment. 15 However, it does not address the validity of the three arguments mentioned above. 16
This article starts with a short explanation of the methodology (section 2). Section 3 will address the State’s duty to arrange for a forensic medical examination. Section 4 discusses the weight, which should be attached to a forensic medical report arranged for by the State or submitted by the applicant. Sections 5-7 discuss the ‘context argument’ (section 5), the ‘causality argument’ (section 6) and the ‘qualification argument’ (section 7). Section 8 will draw conclusions.
2. Methodology
Each section of this article starts by setting out the arguments used by national authorities to refuse to arrange for a forensic medical examination or to grant important weight to medical reports in asylum cases. These arguments were identified on the basis of reports concerning the use of forensic medical reports written by (inter)national NGO’s and researchers in particular in the Netherlands and the United Kingdom. In these countries, NGO’s issue many forensic medical reports, which have been extensively discussed in reports, case law and asylum policy. 17
This article discusses how the ECtHR and the CAT deal with the arguments, which have been raised by national authorities in order to refuse a medical examination or attach no or limited weight to a forensic medical report. These two bodies have developed a body of case law concerning forensic medical reports in asylum procedures. For the purpose of this article, ECtHR judgments concerning expulsion cases falling within the scope of Article 3 ECHR and CAT decisions concerning Article 3 UNCAT, were examined in which (the State’s duty to arrange for) a medical report played a role. Moreover, the CAT’s views in its General Comments were taken into account. The judgments and admissibility decisions of the ECtHR were selected through Hudoc. 18 CAT decisions were found through the Treaty Bodies Search engine of the office of the United Nations High Commissioner for Human Rights. 19 Many of the CAT’s views, in which forensic medical reports played a role, concern Denmark. 20 This may be explained by the fact that a few active Danish lawyers have submitted a number of cases concerning forensic medical reports before the CAT.
All ECtHR judgments and CAT decisions, in which a forensic medical report played a role in the asylum procedure, were selected for the purpose of this article. They were screened on considerations concerning the following issues: the duty to ask for a medical report, the weight attached to the medical report (by the State and the ECtHR/CAT), context, causality and expertise of the physician. In the examination special attention was paid to how the credibility assessment influenced the decision concerning the (duty to arrange a) forensic medical report.
In order to identify short-comings in the ECtHR’s and CAT’s case law, sections 5-7 of this article will refer to the Istanbul Protocol. The protocol was adopted in 1999 by a large number of NGO’s. It contains guidelines for the impartial and objective documentation of torture, which are also applicable to the context of asylum procedures. 21 The Istanbul Protocol is not legally binding, but it has been recognised internationally. 22 The ECtHR has reaffirmed the Istanbul Protocol, mainly in cases concerning complaints of direct violations of Article 3 ECHR by State Parties. 23 The CAT explicitly refers to the Protocol in the context of asylum in its General Comment no 4. 24
3. The duty to arrange for a forensic medical report in asylum casES
Article 3 ECHR prohibits the expulsion of a person where substantial grounds have been shown for believing that this person faces a real risk of being subjected to torture or inhuman or degrading treatment or punishment in the receiving country. 25 Article 3 UNCAT prohibits States to expel, return 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. Both the ECtHR and the CAT consider the fact that a person has been subjected to such treatment in the past, an important indicator for a future risk. 26 A forensic medical report, which addresses the correlation between the alleged ill-treatment and the applicant’s scars or medical problems may be asylum seekers’ only option to substantiate that they were ill-treated in the past.
At the same time, forensic medical examinations are expensive, take a lot of time 27 and may cause distress to the asylum applicant 28 . It may therefore be assumed that they should only be requested, if they can change the outcome of an asylum case. Moreover, applicants must have shown that they have scars and/or physical or psychological problems, for example with a statement provided by a nurse or physician. The applicant should claim that these scars or medical problems are caused by torture or ill-treatment.
States often refuse to arrange for a forensic medical report, because they deem the applicant’s asylum account not credible. In their view, a forensic medical report, which establishes a potential causal link between medical problems and the applicant’s account of torture or ill-treatment, cannot change their initial credibility assessment. 29 They may refer to (false) documents or information or to inconsistent, incoherent and/or vague statements made by the applicant with regard to the alleged ill-treatment or the alleged context of the ill-treatment. This may concern the reasons for (for example the political or religious activities or sexual orientation of the applicant) or perpetrator (the State or fellow citizens) of the ill-treatment (see also section 5 of this article).
This is problematic, because research also shows that precisely the fact that a person has been subjected to ill-treatment may cause psychological problems, which may result in inconsistencies, contradictions or vaguenesses in the applicant’s asylum account. 30 The fact that the applicant has psychological problems may thus support his or her statements about past ill-treatment. 31 A forensic medical examination is the only way in which applicants can substantiate their claim that they suffer from such psychological problems resulting from past ill-treatment. This may lead to a further examination concerning the question whether these psychological problems may explain the inconsistencies, contradictions or vaguenesses in his or her asylum account. A forensic medical report concerning the causal relationship between scars or medical problems and the alleged event of ill-treatment may thus provide a beginning of such explanation. 32
The question is thus when a State is required to arrange for a forensic medical examination in an asylum case. This question will be addressed in this section.
3.1 The state’s duty to investigate
The ECtHR places the burden of proof on the asylum applicant. 33 However, it accepts that the State should expel any doubts about a future risk of refoulement, if the applicant has substantiated that he has been subjected to torture or ill-treatment in the past. 34 Then the burden of proof thus shifts to the State. According to the ECtHR, the applicant and the national authorities have a shared duty ‘to ascertain and evaluate all relevant facts of the case in the asylum proceedings’. 35 Applicants should submit information about their own personal circumstances, because they have access to such information. If national authorities have full access to information (for example country of origin information) they should investigate this information. 36 The ECtHR has recognised that asylum seekers may encounter difficulties abroad when collecting evidence. 37 Therefore, it has considered that it is often necessary to grant asylum seekers the benefit of the doubt. 38 This means that the applicant’s account should be considered credible, even though not all his or her statements have been supported by evidence. 39
The CAT has considered in several recent cases that ‘although it is for the complainant to establish a prima facie case for an asylum request, it does not exempt the State Party from making substantial efforts to determine whether there are grounds for believing that the complainant would be in danger of being subjected to torture if returned’. 40 According to the CAT, the burden of proof reverses ‘when the complainant is in a situation where he/she cannot elaborate on his/her case, for instance, when the complainant has demonstrated that he/she has no possibility of obtaining documentation relating to his/her allegation of torture or is deprived of his/her liberty’. 41 The CAT thus also recognises that asylum applicants may have difficulties substantiating their case and should therefore be assisted by the national authorities.
3.2 The duty to arrange for a forensic medical report in the ECtHR’s and cat’s case law
Both the ECtHR and the CAT have recognised that the national authorities are sometimes required to arrange for a forensic medical examination, if the applicant has substantiated that he has scars, physical or psychological problems and claimed that they result from ill-treatment. The fact that the national authorities raised credibility issues does not automatically alleviate them from the duty to arrange a forensic medical examination. However, this may be different in individual cases.
The ECtHR’s case law
The ECtHR held in RC v Sweden that where the applicant has ‘made out a prima facie case’ as to the origin of his or her scars, the decision-making authorities should ask an expert to write a medical report. 42 In this case, the Swedish authorities had strong arguments to consider the applicant’s account about his escape from an Iranian court not credible. The ECtHR considered nevertheless that ‘the applicant’s basic story was consistent throughout the proceedings’ and that ‘some uncertain aspects, such as his account as to how he escaped from prison [.] do not undermine the overall credibility of his story’. 43 It considered that the Swedish authorities should have arranged a medical examination. 44 In RJ v France, the ECtHR held that the authorities should have arranged for a medical examination, because of the serious and recent injuries on the applicant’s body. Also in this case, the authorities could not refrain from arranging for such examination, even though they found that the applicant’s asylum account was little detailed. 45
The CATs view
According to the CAT, State Parties should refer the person alleging previous torture ‘to an independent medical examination free of charge’, in accordance with the Istanbul Protocol.
46
The CAT seems to be in favour of a broad application of the duty to arrange for a medical examination in case of credibility concerns. In its General Comment no 4, it considers that an examination by a qualified medical doctor, including as requested by the complainant to prove the torture that he/she has suffered, should always be ensured, regardless of the authorities’ assessment on the credibility of the allegation, so that the authorities deciding on a given case of deportation are able to complete the assessment of the risk of torture on the basis of the result of the medical and psychological examinations, without any reasonable doubt.
47
an impartial and independent assessment of whether the reason for the inconsistences in his statements might be that he had been subjected to torture could have been made by the Board only after it had ordered the first complainant to be examined for signs of torture. […] [W]hile the State party has raised serious credibility concerns, it drew an adverse conclusion concerning credibility without adequately exploring a fundamental aspect of the first complainant’s claim.
54
In practice, the CAT allows for exceptions to its own rule that a medical examination should always be ensured, regardless of the authorities’ credibility assessment. Whether such exception may be made, seems to depend on the specific circumstances of the case. 57 In IUK v Denmark the CAT referred to this rule, but did not deem a further medical examination necessary. In this case, the applicant had submitted a forensic medical report, which concluded that overall the applicant’s physical and psychological symptoms were fully consistent with consequences of the alleged torture’. However, the CAT considered that the complainants had ‘failed to explain how or why an examination of IUK for signs of torture […] might have led to a different assessment of their asylum application’. For that reason, the CAT did not ‘consider the denial of an independent medical examination to have directly resulted in the State party’s adverse conclusion concerning the complainants’ credibility’. 58 The CAT does not further explain why its conclusion in IUK v Denmark was different from MB v Denmark, which makes it difficult to ascertain whether it has nuanced its view laid down in General Comment no 4 and M.B. v Denmark. 59
3.3 Discussion
It should be concluded that the CAT makes exceptions in individual cases to the (seemingly absolute) obligation to arrange for a medical report on the request of asylum applicants who are allegedly victims of torture, without providing clear reasons. The ECtHR has not explicitly addressed the question when credibility issues should be considered so serious, that they alleviate the State from the duty to arrange for a forensic medical examination.
It would be helpful, if both the ECtHR and the CAT would explain in more detail why there was a duty on the national authorities in an individual case to arrange a medical examination or not. Arguably, the threshold, which should be met before the State’s duty to arrange for a forensic medical examination is activated, should not be too high; such examination may be the only way for applicants to support their claim that they have been tortured or ill-treated in their country of origin. Moreover, it cannot be excluded beforehand, that the examination will result in a forensic medical report, which strongly supports that the applicant has been tortured.
It may not be considered the task of the ECtHR and CAT to provide general standards concerning the duty to arrange for a forensic medical examination for the State Parties. They assess whether the prohibition of refoulement will be violated if an asylum applicant is returned to his country of origin on an individual basis. 60 Moreover, it is very difficult to develop such standards, as the credibility assessment always depends on the individual circumstances of the case. Nevertheless, both bodies could make explicit which factors have played a role in their decision whether the State had a duty to arrange for a forensic medical examination or not. It is contended here that such factors could include the seriousness of the credibility issues and their relation to the alleged event of ill-treatment.
It may be assumed that the more serious the credibility issues are, the less foreseeable it is that a forensic medical report can change the initial credibility assessment made by the State. Credibility issues may be considered more or less serious, depending on the type of information on which they are based and the part of the asylum account they concern. For example, if the State considers an asylum account not credible on the basis of (false) documents or information, which clearly indicate that the applicant’s account cannot be true, this is in my view more serious than when the asylum account is based on inconsistent, contradictive and/or vague statements made by the applicant. Moreover, credibility concerns regarding the core of the asylum account (the asylum motives) should be considered more serious than those regarding the periphery of the asylum account (for example the travel route). 61 Finally, inconsistent, contradictive and/or vague statements or a lack of evidence concerning the main lines of the asylum account (for example the nature of the applicant’s political activities) should, in my opinion, be considered more serious than where it concerns the details of this account (such as dates of events). 62
In addition, it is argued here that it may be considered relevant in the context of the duty to arrange a forensic medical examination whether the credibility issues concern the event of ill-treatment itself or its alleged context. A forensic medical examination should be considered particularly relevant if the authorities do not consider the alleged event of ill-treatment credible, because it is specifically that element of the asylum account that a forensic medical report seeks to substantiate.
The next section addresses the evidentiary value of forensic medical reports arranged for by the State or submitted by the applicant. It investigates how such reports should be weighed in relation to other evidence available in an asylum case.
4. The evidentiary value of a forensic medical report
Several reports and case law indicate that forensic medical reports submitted by the applicant are sometimes disregarded by national authorities, even if they provide strong evidence that an applicant has been tortured or ill-treated. 63 The NGO Freedom from Torture wrote in 2016 with regard to practice in the United Kingdom that ‘the most common error in the use of the clinical findings, found in 84% of cases, is the dismissal by the asylum caseworker of the clinical evidence of torture in the medico-legal report on the basis that they have already decided that they do not accept or believe all or elements of the person’s account’. 64 This section discusses the question how much weight should be attached to a forensic medical report, arranged for by the State or submitted by the applicant.
4.1 Evidentiary assessment
The ECtHR requires national authorities to carry out a rigorous scrutiny of the risk of refoulement. 65 This means that the national authorities should take into account all evidence submitted by the applicant. 66 If they fail to do this, it may lead to a violation of Article 3 (and 13) ECHR. According to the CAT, ‘[e]ach case should be individually, impartially and independently examined by the State Party through competent administrative and/or judicial authorities’. 67 Also the CAT takes into account a wide variety of evidence.
4.2 The value of forensic medical reports in the ECtHR’s and CAT’s case law
Both the ECtHR and the CAT have attached important weight to forensic medical reports, irrespective of credibility concerns. 68 Therefore, such concerns cannot be reason to automatically ignore such reports. According to the CAT, ‘medical or psychological or other independent evidence to support a claim by the complainant that he/she has been tortured or ill-treated in the past’ is pertinent information in an asylum procedure. 69
However, the case law of the ECtHR and CAT also shows that a forensic medical report supporting claims of ill-treatment does not always render the applicant’s asylum account credible. An individual assessment should always take place, in which the credibility concerns should be balanced against the medical report substantiating past torture or ill-treatment.
The ECtHR’s case law
In most cases, in which the ECtHR attached important or even decisive weight to a medical report, the national authorities found that the applicant had made very general, vague, insufficiently detailed and/or unconvincing statements. 70 The ECtHR also granted important weight to a medical report submitted by the applicant, in cases where more serious credibility concerns were raised by the State, such as doubts about the applicant’s ethnicity and the applicant’s use of a false name. 71
At the same time, the ECtHR ruled in several cases that the applicant’s account of torture could not be considered credible, even though the applicant had submitted a medical report, which found important medical problems consistent with the applicant’s claims of ill-treatment. 72 In these cases, the ECtHR had doubts about the authenticity of the documents submitted by the applicant 73 , no documents were provided 74 or the applicant’s account was inconsistent with country of origin information 75 . Moreover, in some cases the ECtHR referred to the fact that the torture was only mentioned 76 or the forensic medical report was submitted 77 in a late stage of the proceedings.
The CAT’s view
Also in most cases before the CAT, in which one or more medical reports played an important role and a violation was found, the national authorities had raised important credibility issues. 78 Some applicants had applied for asylum under a false identity 79 or destroyed their passport and obtained a visa on wrongful grounds 80 . Other credibility problems included a lack of clarity about the applicant’s identity and/or travel route 81 or inconsistent 82 , contradictory 83 , implausible 84 and/or vague 85 statements. The authorities considered in some cases that the applicant’s statements were inconsistent with country of origin information. 86
In several cases of complainants who suffered from PTSD, the CAT addressed the credibility concerns raised by the State considering that ‘complete accuracy is seldom to be expected by victims of torture’. 87 According to the CAT, States should not apply a ‘standardised credibility assessment process’ in cases of victims of torture and they should take into account that psychological problems may cause factual contradictions and inconsistencies in the author’s allegations. In individual cases, the CAT first considered that the alleged torture was credible on the basis of medical evidence. 88 It found important in many of those cases that the applicant had provided a detailed description of the torture. 89 De Weck states that the CAT is ‘particularly generous in accepting inconsistencies or omissions in cases in which it is established by medical evidence that the complainant has been a victim of torture and is still suffering as a result’. 90 In some cases, the CAT pointed at the fact that the credibility concerns did not ‘raise doubts about the general veracity’ of the applicant’s claims 91 or that the applicant had submitted evidence in support of the asylum account. 92
However, there are also cases in which the CAT concluded that the applicant’s statements could not be considered credible, even though they were (partially) substantiated with a medical report. In some of these cases, there was strong evidence that the applicant provided false information or documents. 93 In a few older cases, the CAT agreed with the national authorities that the applicant’s asylum account was not credible, because they had made vague, inconsistent or contradictory statements. In all these cases, the applicants had submitted a medical report, which concluded that they suffered from PTSD and the scars on their body were consistent with the alleged events of torture. 94 It is not clear from the CAT’s decisions why in these cases the medical report did not provide sufficient explanation for the vague, inconsistent or contradictory statements. 95
4.3 Discussion
Credibility concerns raised by the State are not sufficient to automatically disregard a forensic medical report in the assessment of an asylum claim. However, credibility issues may be so serious that a forensic medical report cannot render the (context of) the alleged ill-treatment plausible. For example a total lack of evidence of professional activities, weighed more than a forensic medical report substantiating an alleged event of ill-treatment. However, both the ECtHR and CAT often do not refer to factors, on the basis of which they considered the credibility issues more or less serious. 96 Moreover, while the CAT takes into account that ‘complete accuracy is seldom to be expected from victims of torture’, the ECtHR has not explicitly recognised that psychological problems resulting from ill-treatment may explain inconsistencies, contradictions and/or vaguenesses in the applicant’s asylum account. 97
It would be helpful if the ECtHR and CAT would explicitly weigh the forensic medical report against the other elements of the asylum claim in their judgments and decisions. They could mention the factors, which they have taken into account in this context, in particular regarding the seriousness of the credibility concerns and their relation to the alleged event of ill-treatment itself or its alleged context. This has also been advised by the International Association of Refugee Law Judges: ‘Expert medical evidence should form an integral part of any findings of credibility and should not be separated from other evidence’. 98 For this purpose, the same factors can be used as those mentioned in section 3.3: the nature of the information on which the credibility concerns are based and whether they concern the core or periphery, main lines or details of the asylum account and the event of torture or its context.
It may be assumed that a forensic medical report should be granted important weight, where the State considers the applicant’s statements regarding the event of ill-treatment not credible. Arguably, such report should be granted more weight than the fact that the applicant has made inconsistent, contradictive or vague statements about this event. An important question is whether a forensic medical report should be taken into account in the credibility assessment of the context of the alleged ill-treatment, such as the reason for or the perpetrator of the ill-treatment. This question will be further explored in the next section.
5. The context argument
National authorities have argued that it is not useful to arrange for a medical examination, because a physician cannot draw conclusions regarding why, where, when and by whom the complainant has been tortured or ill-treated. 99 Therefore, a medical report cannot take away the credibility concerns found by the State with regard to these issues. For the same reason, they may disregard a forensic medical report submitted by the applicant. The ‘context argument’ may be raised in almost any case in which a medical report has been submitted, as medical examinations (usually) cannot establish the date, location, perpetrator of and/or the reasons for ill-treatment. According to the Istanbul Protocol, a physician may be able to consider on the basis of country of origin information that the specific torture method (allegedly) applied to the applicant is specific for a specific region. 100 Arguably, country of origin information may also show that a certain type of ill-treatment is typical for a specific perpetrator or has been applied in a specific period of time.
Neither the CAT nor the ECtHR have explicitly addressed the general validity of the State’s argument that a medical examination is irrelevant, because it cannot establish the context of the alleged event of ill-treatment. However, it can be derived from their case law that this argument cannot be raised in all cases, in which an applicant has requested for a medical examination or has submitted a medical report. Both bodies have attached important weight to forensic medical reports, despite their limitations. At the same time, the ECtHR and CAT have accepted the ‘context argument’ in individual cases.
The ECtHR’s case law
In the case law of the ECtHR, there are a number of important examples, where the Court accepted that the applicant had been ill-treated, but did not accept the context of this ill-treatment. In DNW v Sweden the ECtHR found that it could not be excluded that the applicant had obtained the injuries described in the forensic medical report during an earlier attack, which was not considered relevant by the Court. 101 The medical report stated that the scars ‘were visibly compatible with his story and could support his claims that he had been subjected to torture in the way he had submitted the findings of the forensic evaluation’ 102 and that ‘none of the findings contradicted that the applicant’s injuries had occurred at the time he described’. 103
In I v Sweden the applicant had submitted a medical report, which stated that the applicant ‘had wounds on his body which had “a good relation” with his explanation both of the timing and the extent of the torture to which he had allegedly been subjected’. 104 However, the ECtHR agreed with the Swedish authorities that the alleged context in which the ill-treatment took place could be doubted, because the applicant did not substantiate his asylum account. The applicant did not provide any evidence or details about his work as a journalist, which was the core of his asylum account and the alleged reason why he was tortured. 105
The CAT’s view
States have also raised the context argument in several cases before the CAT. In MS v Denmark, the Danish authorities argued that it was not necessary to arrange for a medical examination ‘because, whatever its outcome, it could not serve to prove that the complainant had been subjected to abuse specifically by the Taliban’ (instead of a gang of robbers). 106 The CAT apparently agreed. It concluded that there was no duty to arrange for a medical examination, taking into account the overall lack of credibility of the complainant’s story, in particular as regards the purpose and perpetrator of kidnapping and following abuse. 107 In contrast, in GI v Denmark the CAT held that the authorities should have arranged for a medical examination, even though the Danish authorities questioned the context of the alleged ill-treatment in view of the nature of the author’s injuries 108 and found a forensic medical examination irrelevant. 109
Also in several cases before the CAT, in which the applicant had submitted a forensic medical report, the national authorities disputed the context of the alleged torture. 110 The CAT only ‘noted’ this argument or completely ignored it, in most of these cases. 111 However, in Chahin v Sweden the CAT considered ‘that even if the medical reports fail to specify when and where the complainant was tortured, they provide grounds which go beyond mere theory or suspicion for believing that he was tortured in the recent past’. 112 One example has been found of a case, in which the CAT agreed with the State that the complainant had not ‘proved conclusively that the injuries he sustained resulted from actions by the State’, irrespective of a forensic medical report. 113
5.1 Discussion
It should be concluded that the ECtHR has accepted the ‘context argument’ in the cases of DNW v Sweden and I v Sweden. In particular in I v Sweden, there were serious reasons to question the reason for the event of torture: the applicant had not submitted any evidence in support of his claim that he had been a journalist. The CAT’s case law seems to be inconsistent, recognising the context argument in some cases 114 and implicitly rejecting it in others 115 .
It would be helpful if the ECtHR and CAT would consider in their case law that States cannot use the ‘context argument’ in order to categorically refrain from arranging forensic medical examinations or disregard medical reports as evidence of past torture or ill-treatment. Moreover, they should explain when the context argument is valid. They should clarify in their judgments or decisions when the doubts about the credibility of the context of the alleged torture or ill-treatment are too serious to ‘repair’ with a forensic medical report. They should also address the question whether the medical report contributed to the overall credibility of the applicant and triggered the benefit of the doubt with regard to the statements about the context. This would make it easier for national authorities to understand these judgments and decisions and to apply the ‘context argument’ in the correct manner.
6. The causality argument
A forensic report often cannot establish with certainty what type of treatment caused the applicant’s scars or medical problems. 116 According to the Istanbul Protocol, a medical report may establish different degrees of causal relation between the alleged event and the applicant’s scars or medical problems: not consistent, consistent, highly consistent, typical or diagnostic. ‘Consistent with’ is the lowest degree of causality, leaving open many other possible causes. ‘Diagnostic of’ is the highest degree, which means that the medical problem can ‘not have been caused in any way other than that described’. 117 In practice this highest degree of causality will rarely be found. 118
In the national context, national authorities may refrain from arranging a forensic medical report, because such report will not provide proof of past torture or ill-treatment. Moreover, medical reports, which establish a lower degree of causal relation may be granted limited or no weight, because they do not exclude the possibility that the applicant’s scars, physical and/or psychological problems were caused by other events than those alleged by the applicant. 119 This section will show how the ECtHR and the CAT deal with this argument.
The ECtHR’s case law
In most cases before the ECtHR, in which the medical report played an important role, the physician documented the scars and/or psychological or physical problems and concluded that they were consistent with or compatible with the applicant’s account. 120 If the terminology of the Istanbul Protocol was followed, they thus established a low degree of causality. The ECtHR has even considered that a medical report, which only documented scars on the applicant’s body, could render the applicant’s allegations of ill-treatment credible. 121 The higher degrees of causality of the Istanbul Protocol have not been found in the ECtHR’s case law. The ECtHR did not explain whether and if so, how the degree of causality found in the forensic medical report determines the weight of this report.
The ECtHR generally seems to reject the State’s argument that the medical report did not establish with certainty the origin of the applicant’s scars, physical or psychological problems. 122 However, the ECtHR has made an exception in at least one admissibility decision. 123 The ECtHR explicitly discussed causality in the case RC v Sweden. The Swedish Government argued that limited weight should be attached to the medical report, because the medical examination had been performed more than seven years after the alleged torture took place and the applicant had failed to inform the doctor of other possible causes for some of the injuries. They considered that it could not be excluded that the medical findings might also have been a result of the applicant’s earlier activity as a football player in Iran. 124 The forensic medical report noted that ‘alternative causes for the origins of the scars could not be completely excluded’. However, it concluded that the medical findings favoured the conclusion ‘that the injuries had been inflicted on the applicant completely or to a large extent by other persons and in the manner claimed by him.’ 125 The ECtHR acknowledged that some of the scars could have been caused by means other than torture. It nevertheless accepted the report’s general conclusion that the injuries, to a large extent, were consistent with having been inflicted on the applicant by other persons and in the manner in which he described, thereby strongly indicating that he had been a victim of torture. The medical evidence thus corroborated the applicant’s story. 126
The CAT’s view
Also in cases before the CAT, the medical reports generally mentioned that the applicant’s scars, physical or psychological problems were consistent or compatible with the alleged event(s) of torture. 127 Incidentally, the CAT accepted medical reports as evidence substantiating claims of past torture, even though they only seem to describe medical problems and did not establish a causal relationship of these problems with past torture. 128 The CAT did not explain whether the degree of causality found, determines how much weight should be attached to the forensic medical report.
Forensic medical reports establishing higher degrees of consistency of the Istanbul Protocol are rare before the CAT. It is striking that in MC v the Netherlands, one of the few cases in which the medical reports mentioned a higher degree of causality, the CAT considered the medical reports to be ‘strong and almost unequivocal’. 129 The medical report concluded that the applicant’s scars were ‘consistent’ or ‘very consistent’ with the pattern of abuse described by the complainant and that the applicant’s psychological symptoms were ‘typical’ of the experience suffered by the complainant. 130
States have argued before the CAT that the scars, physical or psychological problems described in the medical report could have been inflicted in ways other than torture, for example by accidents or fights. 131 They have also contended that the applicant’s psychological problems could be attributed to factors, such as his or her separation from his or her family, his or her precarious migration status or detention in the country of asylum. 132 In most cases, the CAT was not convinced by this argument and attached important weight to the medical report. 133
At the same time, the CAT has also considered in a few cases that the conclusions of the medical report were not strong enough to support the applicant’s claim of past torture. 134 In RS v Denmark for example the CAT found that the medical reports submitted by the applicant were inconclusive about the reasons underlying the complainant’s physical and psychological symptoms and could therefore not be considered strong evidence in support of the applicant’s claim. 135
6.1 Discussion
It is clear that the ECtHR and CAT would not accept the State’s argument, that a forensic medical examination is not relevant, because it cannot establish with certainty what treatment has caused the applicant’s scars or medical problems. They also do not accept that medical reports are ignored, only because a low degree of causality was found.
The question remains whether, and if so, how the degree of causality should be considered relevant for the weight, which should be attached to the forensic medical report. What should be done, if the report concludes that the scars, physical or psychological problems are rather unspecific but consistent with the alleged torture or ill-treatment? How should national authorities deal with reports which conclude that the applicant’s scars, physical or psychological problems are typical or even diagnostic for the alleged torture or ill-treatment? It would do justice to the Istanbul Protocol to pay attention to the degree of causality found by a physician in a forensic medical report, as establishing this degree is a central part of the protocol. 136 That would mean that forensic medical reports in which a higher degree of causality has been found weigh more than those in which a lower degree has been found.
7 The expertise argument
In the national context, the expertise of the physician who wrote the medical report may be a point of debate. For example, national authorities may doubt that a general practitioner can diagnose psychiatric disorders or relate psychological problems to the alleged event of torture or ill-treatment. 137 They may also doubt whether certain medical specialists (for example a neurologist) have had sufficient training to assess the potential origin of scars or psychological problems. As a result, national authorities question the quality of the forensic medical report.
According to the Istanbul Protocol, a forensic medical report should be written by a qualified physician. The physician should know about regional practices of torture and ill-treatment and have experience in interviewing and examining individuals for physical and psychological evidence of torture and in documenting findings. 138
The ECtHR’s case law and CAT’s view
The CAT seems to recognise that the physician writing a forensic medical report should have specific expertise. It states that medical personnel dealing with asylum seekers should be trained ‘in identifying and documenting signs of torture, taking into account the Istanbul Protocol’ 139 and it recognises that physicians carrying out forensic medical examinations should be qualified 140 .
In the case law of the CAT and the ECtHR the expertise of the physician is rarely discussed. Often, the judgments of the ECtHR 141 and the decisions of the CAT 142 do not even mention the specialism or expertise of the physician who wrote the medical report. Only a few ECtHR judgments state that the medical examination was carried out by a forensic department 143 or a forensic physician 144 . 145
The CAT’s decisions often mention the specific institution and/or the names of the physician(s), who provided the medical report. 146 Sometimes it is generally known that the organisation where the physician is working has forensic expertise. In many Danish cases, for example, the applicant submitted forensic reports of the Amnesty International Danish Medical Group. 147 However, in many other cases the CAT just mentions the hospital, which issued the medical report 148 or states that the report was issued by ‘a psychiatrist’ 149 , ‘a physician’ 150 , ‘a urologist’ 151 , ‘a physiotherapist’ 152 or a ‘doctor’ 153 . It is also striking that the CAT only rarely mentions that the medical report was written in accordance with the Istanbul Protocol 154 , even though the CAT finds it important that forensic medical reports are written in accordance with this protocol. The ECtHR has never referred to the Istanbul Protocol in asylum cases.
7.1 Discussion
The Istanbul Protocol and other manuals concerning forensic medical examinations require that physicians carrying out such examinations have expertise in the field of the examination of sequelae of torture. 155 Therefore, the fact that the ECtHR and CAT do not pay attention to the expertise of the physician is problematic. The International Association of Refugee Law Judges states that ‘the consideration given to a report depends on the quality of the report and the standing and qualifications of the medical or health care professional/expert’ 156 . It requires that the expertise of the physician is explained in the forensic medical report 157 .
Moreover, the ECtHR in its judgments concerning complaints of direct violations of Article 3 ECHR by State Parties sometimes does examine whether a forensic examination fulfilled the requirements of the Istanbul Protocol in order to determine whether weight should be attached to the resulting forensic medical report. 158 In these judgments, it does not refer to the specific expertise of the physician, but takes into account the thoroughness of the medical examination. It is not clear why the ECtHR does not discuss these issues in the light of the Istanbul Protocol in the context of asylum cases. It would be helpful for the national authorities of the State Parties, if the CAT and ECtHR would make explicit how the expertise of the physician and the quality of the forensic medical report should be taken into account when determining the weight of this report.
8. Conclusions
This article examined the ECtHR’s and the CAT’s case law and views concerning the State’s duty to arrange for a forensic medical report and the weight, which should be attached to such report in the assessment of the credibility of an asylum account. In particular, it discussed how these bodies have dealt with three specific arguments, which have been raised by national authorities from different States: A forensic medical examination cannot establish where, when, by whom and for what reason the applicant has been tortured (the ‘context argument’); A forensic medical examination cannot establish with certainty what treatment caused the applicant’s scars and/or medical problems (the ‘causality argument’); The physician is not qualified to carry out a forensic medical examination (‘the expertise argument’).
The ECtHR and CAT do not accept that national authorities refrain from arranging a forensic medical examination or attach no or limited weight to a forensic medical report submitted by the applicant, just because the applicant has made inconsistent, incoherent or vague statements. They also do not accept general references to the limitations of forensic examinations: that they (usually) cannot establish the context of the alleged torture or ill-treatment or provide proof of it.
However, in individual cases both the ECtHR and the CAT may accept that a (further) forensic medical examination is not deemed relevant or a forensic medical report is granted limited weight, because of serious credibility issues. Also, the context and causality argument have been raised successfully by national authorities in several individual cases. The ECtHR and CAT often do not explicitly carry out an integral credibility assessment, in which they include the applicant’s claim of past ill-treatment and request for a medical examination or the forensic medical report. For this reason, it is often impossible to ascertain why the context, causality or expertise argument was successful in the particular case. Moreover, the ECtHR and CAT often do not discuss how the forensic medical report contributed to the credibility of (the context of) the alleged event of ill-treatment. It is also unclear whether the degree of causality found in a forensic medical report, and the expertise of the physician who wrote it, affected the weight they granted to this report. This is problematic, because the degree of causality found and the expertise of the physician writing the forensic medical report are key according to the internationally recognised guidelines of the Istanbul Protocol.
The ECtHR and CAT could provide more guidance to national authorities in three ways. First, they could explain which factors played a role in their decision that there was a duty on the national authorities to arrange a medical examination (or not). In particular, they should make clear whether they accept and take into consideration that a physician may find psychological problems, which can explain the inconsistencies, contradictions and/or vaguenesses in applicant’s asylum account. Moreover, they should discuss the seriousness of the credibility issues raised by the national authorities. The fact that information or inconsistencies, contradictions or vaguenesses in the applicant’s statements concern the core (instead of the periphery) and/or main lines (instead of details) of the applicant’s account, contributes to the seriousness of the credibility issues. Information or (false) documents, which indicate that the applicant’s account cannot be true, weigh more than consistent, contradictive and/or vague statements. Finally, it is relevant to mention whether the credibility issues relate to the alleged event of ill-treatment itself or the context of this event. A forensic medical examination is particularly relevant in the first situation. The same factors play a role when determining the weight of a forensic medical report in relation to the other elements of the applicant’s asylum claim. Arguably, the threshold for requiring the State to arrange for a forensic examination should not be set too high, because it is impossible to predict beforehand how strong the evidence provided by the medical report resulting from this examination will be.
Second, it would be helpful if the ECtHR and CAT discuss the validity of the ‘context’ argument. They should explain when the doubts about the credibility of the context of the alleged torture or ill-treatment are too serious to ‘repair’ with a forensic medical report. If the forensic medical report contributed to the overall credibility of the applicant and triggered the benefit of the doubt with regard to the statements about the context of the alleged event of ill-treatment, this should also be clarified.
Finally, it would benefit national authorities, if the ECtHR and CAT would explicitly pay attention to the degree of causality found in a forensic medical report and the expertise of the physician. This would also be in compliance with the Istanbul Protocol, in which the determination of the degree of causal relationship plays a central role and specific expertise of the physician is required. Both the ECtHR and CAT have recognised the importance of the standards of the Istanbul Protocol. They should therefore promote the application of this protocol in the State Parties. Taking into account the degree of causality and whether a forensic medical report complies with the protocol in the determination of the weight of such report, would be a good start.
More guidance from the ECtHR and CAT, does not necessarily change the sceptical attitude of national authorities towards forensic medical examinations and reports. However, it may equip national courts to review the national administrative authorities’ decisions concerning forensic medical examinations and reports more thoroughly. Moreover, it may inspire the CJEU in its interpretation of the duty to arrange for, and take into account forensic medical reports laid down in Article 18 of the Asylum Procedures Directive, which binds the EU Member States. 159
Footnotes
Declaration of conflicting interests
The author declared no potential conflicts of interest with respect to the research, authorship, and/or publication of this article.
Funding
The author received no financial support for the research, authorship, and/or publication of this article.
