A CRITICAL ASSESSMENT OF THE CASE LAW OF THE EUROPEAN COURT OF HUMAN RIGHTS IN RELATION TO ARTICLE 3 AND THE EXPULSION AND EXTRADITION OF ALIENS.
The idea that government can abuse its power by the unwarranted infliction of pain is, naturally, an ancient one."1 So is the abhorrence of it. This is the reason why torture is prohibited in almost every instrument of human rights. Article 3 of European Convention on Human Rights (ECHR)2 reads that [n]o one shall be subjected to torture or to inhuman or degrading treatment or punishment." The language of the article seems simple and plain but as interpreted by the European Court of Human Rights (ECtHR), it has wider application than might have been intended by the authors; being considered as absolute, its protection has been extended to aliens and even to illegal residents in the signatory states, protecting them from expulsion or extradition to a state where they might be subjected to torture or inhuman or degrading treatment or punishment.
Article 3, as interpreted by the European Court of Human Rights (ECtHR), covers prohibition of refoulement on grounds extending from physical torture to improper medical treatment. The words improper or degrading treatment or punishment" assures it. The first part of the study will analyze these concepts in the light of the Strasbourg Court's judgments so that the theme of the paper becomes easy to comprehend.
The case law on Article 3, as far as expulsion and extradition of foreign individuals is concerned, gave rise to two opposite views: one, that the protection provided by Article 3 is absolute and permits no derogation; two, that it is not absolute and that it allows for a balancing between the rights of individuals and societal interests. Each of these contentions is dealt with in a separate part of the paper. After analyzing the case law cited to support the respective arguments of the proponents of each view, the paper contends in the concluding part that it is only in certain situations, that such balancing is provided for, but generally Article 3 has been held to be non-derogable.
Differentiation between torture, inhuman or degrading treatment or punishment Although the case Ireland v. UK3 has nothing to do with refoulement of aliens, it is still relevant to our discussion as it made a distinction between torture', inhuman' and degrading' treatment or punishment. The Court upheld that the distinction is primarily based on the difference in the intensity of the suffering caused. It held that since British investigators applied five techniques (i.e. standing against a wall for a long period, hooding, torture by noise, sleep deprivation and food and drink deprivation): in combination, with premeditation and for hours at a stretch; they caused, if not actual bodily injury, at least intense physical and mental suffering to the persons subjected thereto and also led to acute psychiatric disturbances during interrogation. They accordingly fell into the category of inhuman treatment within the meaning of Article 3 (art. 3).
The techniques were also degrading since they were such as to arouse in their victims feelings of fear, anguish and inferiority capable of humiliating and debasing them and possibly breaking their physical or moral resistance.4
The Court making reference to article 1 of United Nations General Assembly Resolution 3452 (XXX), 1975 which declares that "[t]orture constitutes an aggravated and deliberate form of cruel, inhuman or degrading treatment or punishment", held that they (i.e. the five techniques) do not amount to torture, as the suffering and cruelty of a particular degree, implied in the word torture as so understood, was not occasioned by them.5
However, Judge Zekia said in a separate opinion, that reference to paragraph 1 instead of paragraph 2 of the said Resolution 3452 would have been more relevant, which says that "For the purpose of this Declaration, torture means any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted by or at the instigation of a public official ... for ... obtaining ... information or confession ...." Zekia pointed out that the word high' degree of severity of pain or suffering caused, does not qualify physical or mental pain or suffering. Therefore, he opined that for a case of ill-treatment to be considered as torture' under Article 3 of the ECHR extreme intensity of physical or mental suffering' is not an essential requirement.6
Protection given by Article 3 from non-refoulement is wide and absolute; it permits no derogation.
Strasbourg's judgments reveal that the protection afforded by article 3 is both absolute and applicable in a wider sense. Its wider applicability is in two senses: when compared to the protection from non-refoulement afforded by other international legal instruments and the variety of situations it covers.
Comparison to international refugee law: The Geneva Convention, 1951 and the 1967 Protocol Relating to the Status of Refugees which define refugee as a person who owing to well founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable, or owing to such fear, is unwilling to avail himself of the protection of that country"7, exclude those persons from protection: (i) who fall outside this definition; (ii) who do not deserve protection because there are reasons for considering them serious criminals and, (iii) who are a security risk for the country in which they seek protection.8 On the other hand, a claim which would fail under the Convention on Refugees may be cognizable under Article 3 of ECHR.9
The situation it covers: The case law on Article 3 is wide enough to cover the claims of non-refoulement on grounds of danger of physical torture to inadequate medical facilities in the state of destination.
In Soering v. UK10, for example, where the applicant was being extradited by the United Kingdom to the United States of America (in accordance with an extradition treaty between the two countries) for an alleged murder and the US authorities had planned to seek the death penalty for him; Soering claimed that in case of his extradition he would have to undergo the death row phenomenon' (seven to eight years of waiting between the award and execution of the death penalty) which is an inhuman treatment or punishment. He therefore used the plea that his extradition by the UK would expose him to inhumane treatment, which is a violation of article 3 of ECHR. The contention of the British authorities was that the inhumane or degrading treatment he was dreading would be meted out to Soering outside the UK's jurisdiction, therefore, the latter should not be held responsible.
The court held that under the ECHR, a signatory state has some obligations to stop the likely ill-treatment of the individuals it extradites, for knowingly surrendering a fugitive where there are material evidences that he would be subjected to torture or inhumane or degrading treatment or punishment, is against the spirit of Article 3.
A brief analysis of the Soering judgment reveals that the Court tried to limit the scope of its decision by stating that such kind of judgment was announced only in consideration of the serious and irreparable nature of the alleged suffering risked"11 for which substantial grounds have been shown."12 It is also revealed that a contracting state, which is party to the Convention, is prohibited from inflicting torture and inhumane or degrading treatment not only in its own jurisdiction but is also obliged to protect an individual from such torture or treatment by refraining from handing him over to another state; this falls under the general duty of the state to do everything for protecting individuals on its territory from torture or ill-treatment.
The term substantial grounds" has been further clarified in Vilvarajah v. UK,13 where the Court observed that in assessing the presence of risk a reference shall be made to the factual situation of which the extraditing state was aware or ought to have been aware at the time of expulsion. If at the time of the extradition of an individual to another state, the conditions in the receiving state are normal and there are no signs that the individual would be tortured or ill-treated, the deporting state cannot be held responsible for violation of Article 3, even if the individual is tortured or ill-treated by the receiving state later on. However, in another case the Court held that a decision of extradition yet to be implemented must be reviewed by the contracting state to make sure that any change in situation in the receiving state would not put the applicant at risk.14
Article 3 has been interpreted widely enough to prohibit deportation, in some exceptional cases, even on the ground of inadequate medical care in the state of destination. In D v. UK15, for example, where the applicant was in the advanced stage of AIDS, the Court observed that his deportation would be a violation of article 3 of the Convention for it would result in an abrupt withdrawal of the medical facilities and care available to him in the contracting state, where he was an illegal resident, while in the receiving state he would go through severe mental and physical suffering which would hasten his death. His death would be caused not only by the lack of adequate medical facilities but also by the absence of social and moral support.
The question whether the protection from non-refoulement provided by article 3 is absolute, or the risk of an individual being subjected to torture, inhumane or degrading treatment or punishment in the receiving state should be balanced by the interest of the contracting state, was dealt with in the Chahal v. UK.16 Chahal, a Sikh of Indian origin, who was granted permission to stay indefinitely in the UK, had been charged of being involved in a plot to assassinate the Indian Prime Minister while on an official visit to the United Kingdom. Considering him as a national security risk and to prevent international terrorism, the British authorities issued a notification of his deportation to India. In his application to ECtHR he alleged, inter se, violation of Article 3 because he feared that in India he would be subjected to torture and ill-treatment for he was actively involved in the Sikh separatist movement.
Rejecting the British government's plea that the Court should take into consideration the state's interests i.e. its national security as well as its duty to prevent terrorism in the matter of deporting an individual, the Court observed that the prohibition of torture and ill-treatment is absolute; societal interests cannot justify derogation from it. It is therefore fully applicable in the matter of deporting an individual who poses a security risk. The Court held:
In order to override the interests of the individuals the national interests should not be put forward in cases where material grounds have been shown for believing that, if expelled, he would be subjected to ill-treatment. In modern times it is immensely difficult for the states to protect their communities from terrorist attacks, the Court is aware of it. In spite of that and regardless of the victim's conduct, the prohibition on torture or inhumane or degrading treatment or punishment is absolute in the Convention. Contrasting with a majority of the substantive provisions of the Convention and of its protocols.
Article 3 (art.3) is non-derogable under Article 15 (art.15) and there is no room for exception to it even if there is public emergency that threatened the nation's life in expulsion cases the prohibition against ill-treatment is absolute on the same footing. The conduct of the individual concerned, though objectionable or harmful cannot be a substantial consideration in these cases.17
The above reasoning of the Court shows clearly that there is no margin for balancing the risk of ill-treatment by expulsion' with the State's interests, and the activities of the applicant do not affect the decision of the Court.
The unqualified character of Article 3 in non-refoulement cases was reiterated in the case of Saadi v. Italy18 in which the Court rejecting the arguments of Italy and the UK (as a third party intervener) and reaffirming the rationale of the Chahal case observed that: the applicant was not required to bring higher standard of evidence; he was required only to show substantial grounds' that in the receiving state he would be exposed to torture or ill-treatment, that the state's security concerns are not above the individual's rights, and that diplomatic pledges that the deportee would not be tortured or ill-treated do not absolve the Court from its duty".
Furthermore, case law on Article 3 shows that the source of ill-treatment is an extraneous question: it can be meted out by state functionaries or private individuals.19 In Ahmed v. Austria,20 the expulsion was declared by the Court as being in contravention of article 3 of ECHR, for the applicant faced the risk of torture or ill-treatment from the factions in the on-going civil war in Somalia. However in H.L.R v. France21 the Court observed:
It must be established beyond doubt that the risk is substantial and that the law enforcement agencies of the receiving state are unable to ward off the risk by affording proper protection.22
The protection of article 3 is not absolute; in refoulement cases it allows for balancing the individual's interests by the state's interests.
According to the British Home Secretary, the Convention that was set up over fifty years ago in a completely different international scenario has contributed to great achievements in human rights all over the continent. However, in his belief, it is called for that in this development of human rights the basic rights of individuals be balanced by the collective right for security against terrorist attacks".23
Keeping in view the prevailing phenomenon of international terrorism some European governments call for balancing of, as far as refoulement of aliens is concerned, the individual's interests by the state's interests24. Some jurists referring to ECtHR reasoning in cases under Article 3 of ECHR justify the claim of the said governments and say that the Rule of Balancing is already accepted by the Court.
Hemme Battjes says that prohibition of deportation which results in torture is unqualified but prohibition on deportation resulting in inhumane or degrading treatment or punishment is not.25 In support of his claim he cites the following observation of the Court in the Soering Case:
What amounts to 'inhuman or degrading treatment or punishment' depends on all the circumstances of the case .... Furthermore, inherent in the whole of the Convention is a search for a fair balance between the demands of the general interest of the community and the requirements of the protection of the individual's fundamental rights. As movement about the world becomes easier and crime takes on a larger international dimension, it is increasingly in the interest of all nations that suspected offenders who flee abroad should be brought to justice. Conversely, the establishment of safe havens for fugitives would not only result in danger for the State obliged to harbour the protected person but also tend to undermine the foundations of extradition. These considerations must also be included among the factors to be taken into account in the interpretation and application of the notions of inhuman and degrading treatment or punishment in extradition cases.
Although the balancing argument' has been completely denied by the Court in the Chahal Case and H. Battjes admits it, he refers to the recent N v. UK case26 where the Court again relying on the Soering case stated: [I]nherent in the whole of the Convention is a search for a fair balance between the demands of the general interest of the community and the requirements of the protection of the individual's fundamental rights.27
H. Battjes sums up that prohibition on expulsion contained in article 3 allows balancing in at least three respects. First, the qualification of an act as torture or inhumane or degrading treatment or punishment; second, though the genuineness of the risk is not in question it still requires balancing against the interest of the contracting state, nor is the mere probability of ill treatment enough, third, in duty to assess the risk, the contracting state authorities have some role to play, which again involves balancing.28
However much one argues for the Rule of Balancing the interests of the individual by the interests of the state, law is what the Court says it is. And the ECtHR in the Saadi case unanimously held:
The Court considers that the argument based on the balancing of the risk of harm if the person is sent back against the dangerousness he or she represents to the community if not sent back is misconceived. The concepts of "risk" and "dangerousness" in this context do not lend themselves to a balancing test because they are notions that can only be assessed independently of each other. Either the evidence adduced before the Court reveals that there is a substantial risk if the person is sent back or it does not. The prospect that he may pose a serious threat to the community if not returned does not reduce in any way the degree of risk of ill-treatment that the person may be subject to on return. For that reason it would be incorrect to require a higher standard of proof, as submitted by the intervener, where the person is considered to represent a serious danger to the community, since assessment of the level of risk is independent of such a test.29
Keeping in mind Article 15 of ECHR under which Article 3 is non-derogable, the only possible logical conclusion is that since the requirement of balancing is not provided in the contents of Article 3 why should it be read into it30 The Balancing Rule demands for a distinction between domestic and foreign terrorist suspects, for the former protection from torture and ill-treatment is a given, while the latter are vulnerable to ill-treatment. It is as if they are less human, and are therefore, undeserving of human rights. This would undermine the very idea of the indivisibility of human rights, and is therefore unacceptable.31
The wordings of Article 3 of ECHR seem to be quite clear in prohibiting torture, inhuman or degrading treatment or punishment but the ECtHR has interpreted it in such a way as to include rights which are not expressly provided by it i.e. the right of non-refoulement. Protection from non- refoulement under Article 3 has a wide application and is absolute; no derogation from it is possible, whatsoever. Even the state's security interests cannot rank above this protection32.
However, the Court has differentiated between torture', inhumane' or degrading' treatment or punishment in Ireland v. UK.33 This distinction, it is argued by, Hemme Battjes34, is maintained by the Court in Soering v. UK and Chahal v. UK. Therefore, he opines, that prohibition of refoulement which results in torture is absolute, while prohibition of refoulement resulting in inhumane or degrading treatment or punishment is not; this permits the balancing of the individual's interest by the state's interest. But the Court in Saadi v. Italy plainly rejected such arguments and justifications and reaffirmed the unqualified and non-derogable character of Article 3 and its provision of protection from refoulement. However substantial grounds' must be shown by the applicant that he would be vulnerable to torture or inhumane or degrading treatment or punishment in the receiving state.
In Ahmad v. Austria it was held that the torture or ill- treatment need not necessarily emanate from public officials in the receiving state, it would be a breach of article 3 even if the threat is posed by private individuals or groups. However, in H.L.R v. France it was emphasized that such threat must be real and not in control of the receiving government. Lack of medical facilities and moral and social support for an AIDS patient in the receiving country, was held in D v. UK, as constituting inhumane and degrading treatment and violation of Article 3.
N v. UK, Tanko v. Finland,35 etc. reveal that some sort of balancing between the individual's interest and societal interest is provided for by ECtHR but it is mostly in cases where protection from refoulement is sought on medical grounds, allegedly constituting ill-treatment and a violation of Article 3. Generally, protection from refoulement under Article 3 is absolute and non-derogable.
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|Publication:||Pakistan Journal of European Studies|
|Date:||Jun 30, 2015|
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