Council of State (Belgium), XI Chamber, Decision n° 252.294 of December 2nd 2021


Medical Certificates in Asylum Cases: jurisprudential trends and challenges in practice.

Council of State – Medical certificates – Credibility – Vulnerability – Article 3 and 4 European Convention of Human Rights – Case referred back to the Council for Alien Law Litigation

In decision n° 252.294, the Council of State, following the case law of the European Court of Human Rights, referred back the case to the Council of Alien Law Litigation for further investigation, recalling that asylum authorities have the duty to seek the causes of the scars and injuries attested by a medical certificate, unless it is impossible to carry out such an investigation. Indeed, past ill-treatments represent key indicators for assessing the risk of such a treatment in the future. Conversely, the applicant has the obligation to cooperate with the asylum authorities so that such investigation can take place. This comment reflects on the issues raised by the use of medical certificates in asylum cases, their probative value and the challenges in field practice.

Zoé Crine and Francesca Raimondo

A. Facts and Ruling

In decision n° 252.294 of 2 December 2021, the Belgian Conseil d’État (Council of State), ruling as a court of final instance in asylum proceedings, annulled the judgement of the Conseil du Contentieux des Etrangers (Council for Alien Law Litigation, hereinafter, the CALL) in a case concerning a Mauritanian applicant belonging to the Haratine ethnic group.

The applicant, at his second asylum application, had appealed the decision of the CALL (n° 227.046 of 3 October 2019) – which had not granted him either the refugee status or the subsidiary protection – for violation of Article 3 (prohibition of torture), 4 (prohibition of slavery and forced labour) and 13 (right to an effective remedy) of the European Convention on Human Rights (hereinafter, ECHR or the Convention), for violation of articles 39/2, 48/6 §4 and 48/7 of the Law of 15 December 1980 on entry, stay, settlement end removal of foreign nationals (hereinafter, the Aliens Act) and for violation of the res iudicata authority, since the Council of State in decision n° 244.033 of 26 March 2019 had already annulled another CALL decision with regard to the same applicant.

The applicant alleged that the CALL had focused its attention on the gaps in his story, considering him not credible, without taking into adequate consideration the risk of breaching Article 3 and 4 of the Convention. Indeed, even though the CALL had not called into question that the scars documented in the medical certificate could be compatible with torture, inhumane or degrading treatments or slavery, the judges affirmed that the cause and the circumstances of such scars were not established in a sufficiently accurate manner. Thus, the CALL affirmed that the medical certificates, including the psychological ones, which were part of the applicant dossier, have no evidentiary value. The applicant argues that in these circumstances, international protection should not be refused on this basis only and that the CALL should return the case to the Belgian authority in charge of granting international protection (Commissariat général aux réfugiés et aux apatrides, Office of the General Commissioner for Refugees and Stateless persons, hereinafter CGRS) for further analysis. Furthermore, the applicant stressed that excluding all the medical certificates stands in contrast with the case-law of the European Court of Human Rights (hereinafter, the ECtHR) on that point. Lastly, the applicant alleged the violation of Article 13 ECHR. Indeed, the fact that he had been considered not credible by the CALL overshadowed an adequate consideration both of the medical certificates, but also of his belonging to a minority group known as the “slave caste”.

In light of the case-law of the ECtHR, the Council of State established that, when medical certificates are included in an asylum application, the asylum authorities have the duty to seek for the causes of the injuries and the potential risk connected to them, unless it is impossible to carry out this investigation. Indeed, serious injuries could represent a presumption of torture or inhumane and degrading treatment. In addition, there is an obligation on the applicant to cooperate with the asylum authorities so they can adequately verify the cause and the circumstances of the scars. Since the Belgian asylum authorities had not proceed with this assessment, the Council of State annulled the contested decision and referred the case back to the CALL in a different composition.

B. Discussion

1. Medical certificates in asylum cases: the jurisprudential trends at the ECtHR

A medical certificate is an important piece of documentary evidence that asylum applicants could provide to attest that they face a concrete risk of being exposed to torture or ill-treatments upon return to their country of origin, in breach of Article 3 of the Convention. In F.G. v. Sweden, the ECtHR has made clear the distinction between asylum claims that are based on a well-known general risk and those which are based on an individual risk. In the former case, when information regarding such general risk is available from a wide range of sources, it lies upon the national authorities to carry out an assessment of that risk on their own initiative. Conversely, in the asylum application based on an individual risk, it is on the applicant to substantiate this risk and the national authorities have to dispel any doubt about it. However, due to the specific violation enshrined in Article 3, the applicants have limited documentary evidence to demonstrate such a risk. In addition, the Strasbourg judges have acknowledged that it is difficult, if not impossible, to find such evidence at short notice, especially in cases where such proof must be obtained by the country from which the applicant has fled. For this reason, in the R.C. v. Sweden decision, the Third Section of the Court of Strasbourg stated that in light of the special situation in which the asylum seekers find themselves, they should be entitled to the benefit of the doubt when assessing the credibility of their statements or of the documents they have submitted.

As the Grand Chamber of ECtHR has established in J.K. and others v. Swedenpast ill-treatment represents key indicator for assessing the risk of such a treatment in the future. Medical certificates become fundamental in attesting past ill-treatment. Indeed, their ultimate objective is to attest the correlation between the physical signs as well as the psychological consequences and the torture and ill-treatments in the country of origin. However, national authorities are usually reluctant to arrange an ex officio medical examination or to grant weight to medical certificates. As highlighted by Marcelle Reneman, there are three arguments – concerning context, causality, and expertise – which are put forward by national authorities in this regard: a) doctors are unable to establish the context of the ill-treatment (place, time, perpetrator and reason of ill treatment) even though this is central in order to establish future risk; b) doctors can almost never establish with certainty the connection between the claimed ill-treatment and a given scar or a specific physical or psychological problem (causality); c) doctors lack expertise to conclude that there is a correlation between the ill-treatment and the medical problem(s).

More specifically, national authorities are unwilling to accept that medical certificates could have an impact and, eventually, change their initial credibility assessment. In this regard, the inconsistencies, vagueness and contradictions in the statements made by the applicant could be referred in order to establish their lack of credibility. However, the fact of being a victim of traumatic events, such as torture and other forms of ill-treatment may lead to psychological problems that could lead to vagueness and contradictions in telling one’s story.

The ECtHR has ruled on numerous occasions on the burden of proof in the case concerning the risk of torture or ill-treatment in contravention of Article 3 of the Convention. The Grand Chamber, in the case of Saadi v. Italy, established that the contracting States have an obligation not to extradite or expel any person who runs the real risk of being subjected to torture or ill-treatment, in light of the absolute nature of the rights guaranteed by Article 3 of the Convention. In addition, in F.G. v. Sweden, the Grand Chamber has further specified that when the State is made aware of the risk of ill-treatment in breach of Articles 3, the burden of proof is shifted to the State, considering not only the absolute nature of Article 3 but also the position of vulnerability in which the asylum seekers often find themselves. As a result, it lies upon the State to carry out an assessment of that risk on their own initiative. Furthermore, the Grand Chamber added that this applies in particular to those situations in which the asylum seeker is member of a group which is systematically exposed to ill-treatment.

In R.C. v. Sweden, the ECtHR affirmed that the medical reports provide strong indications that the scars and injuries may have been caused by ill-treatment or torture and that, in this case, it is on the national authorities to dispel any doubts about the cause of the scarring. In another case (R.J. v. France), also mentioned by the Council of State in the case commented, the Strasbourg judges affirmed that the medical certificate represents a particularly important document in the applicant’s dossier, stressing that the Government in that case, by merely invoking the incompleteness of his story, did not dispel the strong suspicion that the applicant was a victim of ill-treatment contrary to Article 3.

However, it is also necessary to add that there are cases in which the ECtHR has considered not credible the applicant’s account of torture, even though a medical report had been submitted.

2. Medical certificates in the Council of State’s case law

In the Belgian national context, the Council of State also ruled on the weight to attribute to medical certificates within the asylum procedure.

Judgment n° 244.033 of 26 March 2019 is relevant in this regard. The Council of State ruled that the fact that the asylum story lacks credibility is not enough to exclude a risk of treatment that would breach article 3 ECHR when the applicant submits a detailed medical certificate. Indeed, in this case, the applicant provided medical and psychological certificates for his second asylum application, establishing that psychological and physical injuries were compatible with the asylum story. The Council for Alien Law Litigation ruled that these new elements were not sufficient to establish credibility. On appeal, the Council of State considered that such an evaluation, not considering the medical certificates, was not satisfactory.

In the same vein, in decision n° 247.156 of 27 February 2020, the Council of State issued a judgement in which it found that asylum bodies are responsible to examine causes and risks connected to medical certificates that are submitted when these certificates document injuries so severe that they suggest treatment in violation of Article 3 ECHR. In this judgment, the Council ruled that the asylum Judge must ensure that the cause of the injuries was examined and the risks they reveal was assessed. In the absence of such an assessment, the Council could not legally conclude that the applicant had not demonstrated that he or she has been a victim of persecution. In this case, it is up to the asylum authorities to clarify any doubt as to the cause of the injuries mentioned in the medical certificates.

In the commented judgment, the Council of State follows the developments of the European case-law by underlining that the asylum authorities had the obligation to look for the origin of the injuries found, while their nature and gravity give rise to a presumption of treatment contrary to article 3 ECHR. It reaffirms here the obligation of the asylum authorities to investigate the origin of these injuries and to assess the risks attached to them, "unless the Council finds that the applicant makes it impossible for the asylum authorities to carry out this investigation". Questions may arise in future case law, as to what can be considered a condition that prevents or “makes it impossible for” the asylum authorities to carry out their investigations. For the time being, the Council of State demonstrates an appropriate level of caution by recalling the obligation of the asylum authorities in these specific cases.

The obligation of appropriate investigation here is all the more important, as article 4 of the ECHR, prohibiting slavery and forced labor, is evoked. The applicant mentions his membership of the Haratine ethnic group, qualified as a "slave caste" by the CALL. He also recalls that according to judgment No. 244.033 of 26 March 2019, wounds compatible with treatment linked to slavery are objective elements, which cannot be dismissed for lack of credibility. The cautious reasoning of the Council of State in this case is all the more welcome because it pays real attention to the risk of bad treatment connected to servitude, which is not to be ruled out for lack of credibility.

The importance given to the medical certificate here follows ECHR case law. Yet, this has not always been the case with the Council of State. In judgment n° 10.700 of 8 August 2014, the Council of State emphasized that the asylum judge "sovereignly assesses the probative value of documents to which the law attaches no probative value, and he may, without necessarily contradicting the content of the documents produced, consider that the latter are not sufficient to convince him of the reality of the fears of an asylum seeker or of the risk that he would incur in the event of return to his country of origin”.

Contrary to ECHR jurisprudence, it then limited its analysis to the lack of credibility of the applicant's story.

As a reminder, in order to dispel any doubts about certain injuries attested by a medical certificate, Belgian law provides for the possibility for the CGRS to carry out a medical evaluation, in accordance with article 48/8 of the Aliens Act. This article creates the possibility for the CGRS, when it deems it relevant in the framework of the evaluation of the application for international protection, to invite the applicant to undergo a medical examination "concerning signs of persecution or serious harm that he/she may have suffered in the past".

3. Evaluation of medical certificates: bones of contention

The evaluation of medical certificates is challenging. In the practice of the actors involved, several "stumbling blocks" appear around the question of the probative value of medical certificates. In its most recent report, the VULNER research project shows tensions appearing at different levels.

Firstly, at the level of the judge's role in the assessment of these certificates. The VULNER report clearly showed hesitation on the part of judges, particularly when it comes to assessing violence produced outside the country of origin, during the migration process. It also highlights the challenges that exist between the detection, by the medical body, of vulnerability or violence suffered and the recognition of the need for protection by an administrative jurisdiction. This can create tensions about the functions and roles of the different institutions involved: how far are medical certificates supposed to go in creating connections between an applicant’s physical and mental conditions and their past experience? The VULNER report also underlines the use of medical certificates as a tool to prove the "vulnerability" of certain profiles as well as to make them tangible. In this sense, it makes it possible to objectify the vulnerability of a profile by providing medical and psychological evidence of the violence suffered. Judges therefore have to navigate between the importance of medical certificates to objectify certain violence and their margin of maneuver to subjectively appreciate their probative force.

Secondly, at the level of the strategic resort to medical certificates. If judges are uncomfortable with the quantity of medical certificates presented in support of each individual file and the probative value to be given to them, they are also aware of their added value in adding credibility to these asylum stories. So are asylum seekers: the VULNER report shows that medical certificates also progressively become a strategic tool asylum seeker rely on, to support their asylum narrative.

Thirdly, at the level of the production of detailed and quality medical certificates. Getting a medical certificate also depends on the availability of competent institutions to provide it as well as their ability to produce certificates in a more or less short time frame, when demand is increasing and supply insufficient. In Brussels, Constat, a non-profit association in charge of making medical certificates for asylum seekers who have been victims of torture and bad treatment, is sometimes obliged to freeze applications because of a lack of resources. In this context of urgency, obtaining a certificate becomes all the more challenging, as it can be difficult and delayed. At the same time, it remains essential that medical certificates are delivered for the credibility of the asylum story.

The VULNER report therefore shows a somewhat tricky situation: the need for asylum seekers to always prove their claim with a certificate, on the one hand, and the limited availability of these quality medical certificates, on the other hand; and finally, their appreciation by the asylum judge, who remains subjective as to the probative force to be given to them. It also brings to the surface delicate issues related to the assessment of violence during the migratory journey and its impact on the ability to tell an asylum story.

C.  Conclusion

In the case commented on above, the Council of State confirms the necessity for the Asylum Court to comply with the case law of the European Court of Human Rights. In light of the absolute character of article 3 ECHR and the vulnerable position in which asylum seekers found themselves, the Strasbourg Judges shifted the burden of proof of the serious risk of torture and ill treatment from the asylum seeker to the national authorities. When medical certificates are attached to the applicants’ dossier, it is up to the national authorities to dispel any doubts about the cause of scarring. In some cases, the ECtHR has stressed that the strong suspicion of torture, supported by a medical report, cannot be dismissed by merely invoking the incompleteness of the applicant’s story.

In its most recent case law, the Council of State has followed ECHR case law, underlining that the fact that the asylum story lacks credibility is not sufficient to exclude a risk of treatment that would breach article 3 ECHR. However, in 2014, the Council of State departed from ECtHR case law, insisting on the margin of maneuver asylum bodies have in disregarding medical certificates if the asylum story lacks credibility. Later on, the Council of State reaffirmed that it is up to the national authorities to find out the causes of injuries and the potential risk connected. The asylum seeker is nevertheless obliged to cooperate with the asylum authorities to allow them assess the cause and the circumstances of the scars. However, the content of this “obligation to cooperate” remains unclear. As a result, the conditions in which the investigation of the asylum authorities would become impossible are also blurred.

This obligation to seek the causes and consequences of torture or ill treatment is here of utmost importance, because the applicant belongs to the Haratine ethnic group, which is known to be a slave caste. Resulting from that, article 4 ECHR is explicitly mentioned and requires that the national authorities carry out a thorough analysis of the circumstances surrounding the applicant’s scars.

Even though medical certificates are one of the few evidentiary tools to document torture and ill treatment, they bring with them multiple challenges. Asylum authorities have found themselves in a delicate position because medical certificates are systematically attached to the asylum seekers’ dossier. Moreover, the probative value to be given to them is sometimes unclear. In addition, the use of a medical certificate to substantiate the asylum application is also limited by the very fact that comprehensive ones are sometimes difficult to obtain.

The stakes underlying medical certificates are high and are aligned in the evolution of case-law and in the practices of the actors in the field. The subjectivity inherent to the assessment of medical certificates will give rise to further reflection on and development of case law. In the absence of rules establishing common practice, is case law enough to serve as a guide towards a clearer probative value of medical certificates in asylum cases?

D. Suggested Reading

To read the case: Council of State (Belgium), XI Chamber, 2 December 2021, No. 252.294.

Case law:

ECtHR, Grand Chamber, F.G. v. Sweden, 23 March 2016, Application no. 43611/11;

ECtHR, Third Section, R.C. v. Sweden, 9 March 2010, Application no. 41827/07;

ECtHR, Grand Chamber, J.K. and others v. Sweden, 23 August 2016, Application no. 59166/12;

ECtHR, Grand Chamber, Saadi v. Italy, 28 February 2008, Application No. 37201/06;

ECtHR, Cinquième Section, R.J. v. France, 19 septembre 2013, requête n° 10466/11;

C.S., 27 February 2020, No. 247.156;

C.S., 26 March 2019, No. 244.033;

C.S., 8 August 2014, No. 10.700.


NANSEN, Note 2020-1 Documents médicaux et procédure d’asile, 29 juin 2020

NANSEN, Rapport alternatif sur la mise en œuvre de la Convention contre la Torture et autres peines ou traitements cruels, inhumains ou dégradants en Belgique, la situation des victimes de torture dans la procédure d’asile, 2021.

Datoussaid S., “Crédibilité, force probante des certificats médicaux et renversement de la charge de la preuve”, Newsletter EDEM, septembre 2014.

Reneman M., “Forensic medical reports in asylum cases: The View of the European Court of Human Rights and the Committee against Torture, Netherlands Quarterly of Human Rights, Vol. 38(3), 2020, pp. 206-228.

Saroléa, S., Raimondo, F., Crine Z., Exploring Vulnerability ‘s Challenges and Pitfalls in Belgian Asylum System - Research Report on the Legal and Policy Framework and Implementing Practices in Belgium, VULNER Research Report 1,2021, doi: 10.5281/zenodo.5508769.

To cite this contribution: Crine Z., Raimondo F., “Medical Certificates in the Asylum Cases: jurisprudential trends and challenges in the practices”, Cahiers de l’EDEM, February 2022.

This article was produced as a result of research carried out within the framework of the VULNER project, which received funding from the European Union's Horizon 2020 research and innovation programme, under grant agreement no. 870845 (

Publié le 28 février 2022