Forensic medical reports in asylum cases: The view of the European Court of Human Rights and the Committee against Torture
| DOI | 10.1177/0924051920939879 |
| Published date | 01 September 2020 |
| Date | 01 September 2020 |
| Subject Matter | Articles |
Article
Forensic medical reports in
asylum cases: The view of the
European Court of Human Rights
and the Committee against Torture
Marcelle Reneman
Vrije Universiteit Amsterdam, Amsterdam, Netherlands
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 incon-
sistent, 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
Asylum, forensic medical reports, European Court of Human Rights, Committee against Torture,
Istanbul Protocol, evidence, non-refoulement
Corresponding author:
Marcelle Reneman, Vrije Universiteit Amsterdam, De Boelelaan 1077 Amsterdam, 1081 HV Netherlands, De Boelelaan
1105, 1081 HV Amsterdam, Netherlands.
E-mail: a.m.reneman@vu.nl
Netherlands Quarterly of Human Rights
2020, Vol. 38(3) 206–228
ªThe Author(s) 2020
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DOI: 10.1177/0924051920939879
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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, conclu-
sions 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 b e derived from reports, literature and case law, that
national authorities in several EU Member States
5
are reluctant to arrange for a medical examina-
tion or to grant important weight to forensic medical reports in asylum cases.
6
They do not (fully)
1. See for example JK and others v Sweden App no 59166/12 (ECtHR, 23 August 2016) para 99-102; CAT, General
Comment no 4 (2017) on the implementation of Article 3 of the Convention in the context of Article 22, para 49(b). See
also Fanny De Weck, Non-refoulement under the European Convention on Human Rights and the UN Convention
against Torture (Brill/Nijhoff 2016) 381.
2. UNHCR, Handbook and Guidelines on Procedures and Criteria for Determining Refugee Status under the 1951
Convention and the 1967 Protocol Relating to the Status of Refugees (December 2011) (hereafter also: UNHCR
Handbook), para 196.
3. David Rhys-Jones and Sally Verity Smith, ‘Medical Evidence in Asylum and Human Rights Appeals’ (2004) 16
International Journal of Refugee Law 381.
4. See for example RC v Sweden App no 41827/07(ECtHR, 9 March 2010); MC v the Netherlands No 569/2013 (CAT, 30
November 2015).
5. At the same time, it is known that forensic medical reports in some countries often contribute to a positive asylum
decision: Stuart L. Lustig and others, ‘Asylum Grant Rates Following Medical Evaluations of Maltreatment among
Political Asylum Applicants in the United States’ (2008) 10 Journal of Immigrant Minority Health 7; Marcelle
Reneman, Identification of asylum seekers with special reception and procedural needs in the Dutch asylum procedure
(ACMRL 2018) 96-97.
6. IRCT, Falling through the cracks (2016) 12-13 (concerning Austria), 16 (concerning Finland), 19 (concerning France),
25 (concerning Germany), 31 (concerning Italy). See for Denmark: GI v Denmark No 625/2014 (CAT, 17 September
2017), para 5.5; Sweden: RC v Sweden (n 4), the Netherlands: Reneman (n 5) 93-96 and the UK, Rhys-Jones and Verity
Reneman 207
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