77
242. Thus, in this case the European Court wrote that “[i]t 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 3.212 Where such evidence is adduced, it is for the Government to dispel
any doubts about it.213
243. With specific reference to the situation in the receiving State, the European Court, citing
its precedent in Vilvarajah and Others vs. the United Kingdom, wrote that “in order to determine
whether there is a risk of ill-treatment, the Court must examine the foreseeable consequences of
sending the applicant to the receiving country, bearing in mind the general situation there and his
personal circumstances (see Vilvarajah and Others, cited above, § 108 in fine).”214 As for the
documentation that is relevant in making this determination, in Saadi v. Italy the European Court
summarized its findings in earlier cases, as follows:
(…) as regards the general situation in a particular country, the Court has often attached
importance to the information contained in recent reports from independent international
human rights protection associations such as Amnesty International, or governmental sources,
including the US Department of State (see, for example, Chahal, cited above, §§ 99-100; Müslim
v. Turkey, no. 053566/99, § 67, 26 April 2005;Said v. the Netherlands, no.2345.02, § 54, ECHR
2005-VI; and Al-Moayad v. Germany (dec.), no. 35865/03, §§ 65-66, 20 February 2007). At the
same time, it has held that the mere possibility of ill-treatment on account of an unsettled
situation in the receiving country does not in itself give rise to a breach of Article 3
(see Vilvarajah and Others, cited above, § 111, and Fatgan Katani and Others v. Germany (dec.),
no. 67679/01, 31 May 2001) and that, where the sources available to it describe a general
situation, an applicant’s specific allegations in a particular case require corroboration by other
215
evidence (see Mamatkulov and Askarov, cited above, § 73, and Müslim, cited above, § 68).
244. As regards the time when the assessment must be done to determine whether or not a
real risk exists, in Chahal v. the United Kingdom and Venkadajalasarma v. the Netherlands the European
Court held that “the existence of the risk must be assessed primarily with reference to those facts which
were known or ought to have been known to the Contracting State at the time of the expulsion.”
However, if [the individual] has not yet been expelled, the relevant time was that of the proceedings
before the Court.216 In Mamatkulo and Askaro v. Turkey, the Court wrote that “[t]his situation typically
arises when deportation or extradition is delayed as a result of an indication by the Court of an interim
measure under Rule 39 of the Rules of Court. Such an indication means more often than not that the
Court does not yet have before it all the relevant evidence it requires to determine whether there is a
real risk of treatment proscribed by Article 3 in the country of destination.” 217 Therefore, while it is true
that historical facts are of interest to the extent that they shed light on the current situation or the
manner in which that situation is likely unfolding, the present circumstances are decisive.
212
European Court of Human Rights. Saadi v. Italy. 28 February 2008. Para 129. Citing N. v Finlandia, no. 38885/02, §
167, 26 July 2005.
213
European Court of Human Rights. Saadi v. Italy. 28 February 2008. Para 129.
214
European Court of Human Rights. Saadi v. Italy. 28 February 2008. Para 130.
215
European Court of Human Rights. Saadi v. Italy. 28 February 2008. Para 131.
216
European Court of Human Rights. Chahal v. the United Kindgdom. Paragraphs 85 and 86; and Venkadajalasarma
vs. The Netherlands. 17 February 2004. Para. 63
217
European Court of Human Rights. Matatkulov and Askarov v. Turkey. Para. 69.