Case Commentaries
| Date | 01 July 2010 |
| Author | Rosemary Pattenden |
| Published date | 01 July 2010 |
| DOI | 10.1350/ijep.2010.14.3.358 |
| Subject Matter | Article |
CASE COMMENTARIES
CASE COMMENTARIES
Assessing the credibility of an asylum seeker who alleges past torture—
European Court of Human Rights
In RC v Sweden, Application No. 41827/07, 9 February 2010, the applicant, an
Iranian, said that he had escaped illegally from Iran following his imprisonment
and torture for participating in peaceful demonstrations there against the
government. He argued that he faced a real risk of being arrested and tortured if
expelled to Iran and therefore Sweden was obliged to grant his asylum appli-
cation. There were marks on his body consistent with torture; nevertheless the
Swedish Migration Board decided that he had failed to substantiate his story in
any way and this decision was upheld on appeal. The European Court of Human
Rights (ECtHR) found that Sweden had violated the obligation placed by Article 3
on Member States not to deport a person to a country where substantial grounds
have been shown for believing that the person concerned faces a real risk of
torture or inhuman or degrading treatment. Most of the judgment is concerned
with the assessment of the applicant’s credibility.
The asylum seeker has the burden of adducing evidence capable of proving that
there are substantial grounds for believing that, if expelled, he or she will be
exposed to a real risk of prohibited treatment. Where such evidence is adduced,
the Member State must dispel any doubts (see NA v United Kingdom, Application
No. 25904/07, 17 July 2008, para. 111). In RC’s case, the Swedish authorities
had rejected his application for asylum because they did not believe his story.
This was largely because he had embellished his initial story at a late stage of
the proceedings, but also because of the limited nature of his political activ-
ities and the unusual circumstances of his escape from custody. The ECtHR stated
that:
as a general principle, the national authorities are best placed to
assess not just the facts but, more particularly, the credibility of
witnesses since it is they who have had an opportunity to see, hear and
assess the demeanour of the individual concerned. (RC v Sweden at
para. 50)
doi:10.1350/ijep.2010.14.3.358
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Despite this, it disagreed with the findings of the Swedish authorities about the
applicant’s credibility.
The Court finds that the applicant’s basic story was consistent
throughout the proceedings and that notwithstanding some
uncertain aspects, such as his account as to how he escaped from
prison, such uncertainties do not undermine the overall credibility of
his story. (RC v Sweden at para. 52)
The applicant had corroborated his allegation of torture by producing a medical
certificate, albeit not from an expert specialising in the assessment of torture
injuries. Once he had done this, ‘the State has a duty to ascertain all relevant facts’.
The state had not adduced an expert opinion contradicting the medical certificate
or challenged the applicant’s evidence that he had left Iran illegally. It was held
that the unrebutted evidence of his personal situation, coupled with information
from independent sources that the Iranian authorities frequently ill-treat and
imprison demonstrators, the lack of human rights and tense situation in Iran and
the known attitude of the Iranian authorities to returning Iranians who left the
country illegally, enabled the applicant to substantiate his claim that he faced a
real risk of prohibited treatment if sent back to Iran.
Underpinning the ECtHR’s position is the realisation that asylum seekers are at a
disadvantage in proving a history of incarceration and torture: they seldom have
access to independent evidence and therefore determination of their case rests
heavily on an assessment of their credibility. In these circumstances, the ECtHR
said at para. 50: ‘it is frequently necessary to give them the benefit of the doubt’. A
strict approach to proof would render ineffective the protection provided by
Article 3. In Tala v Sweden (No. 43/1996, UN Doc. CAT/C/17/D/43/1996 (1996)) the UN
Committee Against Torture reacted in much the same way as the ECtHR to a strict
Swedish credibility test. The UN Committee at para. 10.3 said that ‘complete
accuracy is seldom to be expected by victims of torture’ and, given medical
evidence confirming Tala’s torture, the inconsistencies in his statements to the
Swedish authorities about the method of torture did not ‘raise doubts about the
general veracity of his claims, especially since it has been demonstrated that the
author suffers from Post Traumatic Stress Disorder’.
Low Template DNA profile evidence—United Kingdom (England and Wales)
and New Zealand
A minute quantity of DNA can now be amplified by a process known as Low Copy
Number (LCN) to obtain a DNA profile. This is cheaper and quicker than any of the
older forms of DNA sequencing, but comes with an increased risk of random
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errors (‘stochastic effects’) introduced during the processing of the sample.
Following criticism of the LCN method of DNA analysis as insufficiently reliable by
Weir J in R v Hoey [2007] NICC 49, noted (2008) 12 E & P 169, use of profiles obtained
from Low Template DNA was temporarily suspended in the United Kingdom. After
publication in 2008 of a Home Office review by Professor Caddy in which Weir J’s
view was rejected, the reliability and evidential value of Low Template DNA were
considered by the English Court of Appeal in R v Reed [2009] EWCA Crim 2698
where the Court of Appeal concluded inter alia that:
1.
If the quantity of DNA analysed exceeds the ‘stochastic threshold’ of
between 100 and 200 picograms, a Low Template DNA profile obtained
by the LCN process used by the Forensic Science Service is capable of
reliable interpretation.
2.
In the absence of new scientific evidence, when the quantity of DNA in
a sample exceeds the 100–200 picograms range threshold, a trial judge
should refuse to entertain a challenge to the validity of the LCN process.
These observations have not been considered by the New Zealand Court of
Appeal in Wallace v R [2010] NZCA 46 in a judgment which dismissed the appeal of
a man found guilty of the murder of a backpacker. A metal bar which the prose-
cution could link to the appellant and which was alleged to have been the
murder weapon had traces of DNA which, using LCN DNA processing, produced a
Low Template profile that matched the DNA profile of the victim. Delivering the
judgment of the court, Hammond J said that blanket attacks on LCN processing
are no longer tenable. Low Template DNA profiles are accepted trial evidence in
the United States (New York v Hemant Megnath, Ind. No. 917/2007, 8 February
2010), United Kingdom, Australia, Sweden and New Zealand (R v Reid [2009] NZCA
281 at [43]). Any challenge to its admissibility must be based on the particular
facts of the case. For example, the profile may lack probative value if the Low
Template DNA could have been contaminated (as in Hoey) or been innocently
deposited at the crime scene before the crime took place. In Wallace, the Low
Template DNA in the sample had not been quantified, so the Reed judgment was
of limited value. The critical question was whether the Low Template profile was
sufficiently reliable. The character of the profile had been attested to, at the trial,
by properly qualified experts, and not challenged by the defence. Affidavits by
experts subsequently obtained by the appellant for the appeal were not suffi-
ciently cogent to be admissible as fresh evidence. At the trial, the prosecution
had, independently of all the DNA evidence (which was not confined to the Low
Template DNA profile from the metal bar), a strong case on circumstantial and
identification evidence, and the Low Template DNA profile had been handled
...
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