The European Court of Human Rights - Case Study Example

The case law of the European Court of Human Rights is quite clear in relation to a state’s obligations to protect human rights when extraditing a suspect. The case of Soering v the UK1 established the principle that a state would be in violation of its obligations under the ECHR if it extradited an individual to a state, in this case the U.S., where that individual was likely to suffer inhuman or degrading treatment or torture contrary to Article 3 ECHR. These speculative ill-treatment cases, such as those involving extradition to countries where there is a serious risk of `Article 3' treatment, illustrate the flexible nature both of the notion of ill-treatment and of the relevant threshold. With regard to the concept of `permissible roughness of treatment', treatment or punishment can only be adjudged to be in breach of Article 3 ex post facto, essentially because it is only then that all the relevant circumstances can be considered. To reach firm conclusions as to the nature and effect of treatment or punishment before it occurs clearly departs from the principle of assessment after the event. Whilst endorsing that principle in Soering, the Court indicated that a departure from it may be appropriate in certain cases: “It is not normally for the Convention institutions to pronounce on the existence or otherwise of potential violations of the Convention. However, where an applicant claims that a decision to extradite him would, if implemented, be contrary to Article 3 by reason of its foreseeable consequences in the requesting country, a departure form the principle is necessary, in view of the serious and irreparable nature of the alleged suffering risked, in order to ensure the effectiveness of the safeguard provided by the Article.”2 Such a departure is justified on a number of grounds, besides the risk of serious and irreparable suffering. They include the principle of effective protection, the belief that the Convention is designed to promote and maintain democratic ideals, the fact that Article 3 admits of no exceptions or derogations3 and, more to the point, that Article 3 represents an absolute standard. In Soering, the United Kingdom Government argued that speculative ill-treatment is prohibited under Article 3 only if it is certain and imminent.4 Such a standard can be achieved only where the treatment is required by law and its occurrence is not simply a matter of speculation. Accordingly, since the death penalty and the death-row phenomenon were not necessarily automatic and inevitable,5 the exception was not to be applied in that case. The Court disagreed. It concluded that a real risk of exposure to the known ill-treatment was sufficient,6 although a mere possibility of ill-treatment in such circumstances was not sufficient.7 The accepted standard, which lies somewhere between certainty and possibility, can be fairly high provided that it accords with the wider principles of effective protection and the prevention of irreparable damage. The Soering ruling has also been recognised, with differing outcomes on the facts, in cases such as D v United Kingdom,8 Cruz Varas v Sweden,9 Vilvarajah v United Kingdom,10 HLR v France,11 Gonzalez v Spain,12 Dehwari v Netherlands13 and Hilal v United Kingdom.14 Ordinarily in these cases, the risk which the individual runs of being subjected following expulsion to the proscribed form of treatment emanates from intentionally inflicted acts on the part of the public authorities in the receiving country. As, however, was first stated by the ECtHR in HLR v France:15 "Owing to the absolute character of the right guaranteed, the court does not rule out the possibility that article 3 of the Convention may also apply where the danger emanates from persons or groups of persons who are not public officials. However, it must be shown that the risk is real and that the authorities of the receiving state are not able to obviate the risk by providing appropriate protection." Though substantive differences might be shown between extradition and deportation, the Strasbourg court has held the principle to be potentially applicable in either situation. In Cruz Varas v Sweden,16 it said: "Although the present case concerns expulsion as opposed to a decision to extradite, the Court considers that the above [Soering] principle also applies to expulsion decisions and a fortiori to cases of actual expulsion ." The Court has relied on this paragraph, directly or indirectly, in a series of later cases, among them Vilvarajah v United Kingdom;17 Chahal v United Kingdom;18 HLR v France;19 Ahmed v Austria;20 Jabari v Turkey;21 and Hilal v United Kingdom.22 The most significant authority confirming the application of the Soering principle to deportation cases is Chahal v UK.23 In that case the ECtHR found that there was sufficient evidence of a real risk of ill-treatment and underlined that to return a person in these circumstances would be a breach of Article 3 of ECHR. The application of the Article 3 was absolute. It contained no exceptions within it, nor could it be derogated from in time of national emergency under Article 15: The prohibition provided by Article 3 against ill-treatment is equally absolute in expulsion cases. Thus, whenever substantial grounds have been shown for believing that an individual would face a real risk of being subjected to treatment contrary to Article 3 if removed to another State, the responsibility of the Contracting State to safeguard him or her against such treatment is engaged in the event of expulsion. In these circumstances, the activities of the individual in question, however undesirable or dangerous, cannot be a material consideration. The protection afforded by Article 3 is thus wider than that provided by Articles 32 and 33 of the United Nations 1951 Convention on the Status of Refugees.24 Moreover, in Chahal the ECtHR found that assurances from the Indian government about Chahal’s likely treatment were he returned did not sufficiently reduce the risk to him. About them, the ECtHR said: Although [it] did not doubt the good faith of the Indian government in providing the assurances... it would appear that, despite the efforts of the government, the NHRC and the Indian courts to bring about reform, the violation of human rights by certain members of the security forces in Punjab and elsewhere is a recalcitrant and enduring problem. Against this background, the Court is not persuaded that the above assurances would provide Mr Chahal with an adequate guarantee of safety.25 The ECtHR’s judgment is worth emphasising - Article 3 did not only protect against State ordered torture, it protected where the State had limited control over the day-to-day practices of its security forces. The UK has given a mixed response to Strasbourg case law. In R v Special Adjudicator, ex parte Ullah,26 the Court of Appeal held that the principle in Soering that engaged the liability of a deporting or extraditing state when there was a real risk of the individual being subjected to a violation of article 3 of the Convention, did not apply to cases where there was a risk of religious persecution on return.27 However, that decision in Ullah was questioned by the House of Lords, R (Ullah) v Special Adjudicator,28 where it was held that an article other than article 3 (in this case article 9) could be engaged in relation to the removal of an individual where the anticipated treatment in the receiving state would be in breach of the requirements of the Convention, but did not meet the threshold of article 3. On the facts the House of Lords held that the applicants had failed to show evidence supporting their claim of religious persecution. Similarly, in Razgar v Home Secretary,29 the House of Lords held that the rights under article 8 of the Convention could be violated when a deportation might cause an effect on his mental health, even where the treatment did not violate article 3.30 This shows a welcome move by the UK Judiciary to ensure that a deportation was to be prohibited not only when there was a risk of violation of Article 3, but any other right guaranteed under the Convention. However, in N v Secretary of State for the Home Department,31 the Court of Appeal made a departure from Strasbourg jurisprudence. It held that there had been no violation of article 3 of the European Convention when a person had been returned to Uganda when such a return would have deprived her of life-saving treatment for her AIDS condition. The Court of Appeal distinguished this case form D v United Kingdom,32 which was, in the court's opinion both exceptional and extreme. Therefore, though the Judiciary in UK has followed the basic tenets of Strasbourg jurisprudence, the ambit of protection in deportation cases has not attained uniformity. However, both Strasbourg jurisprudence and UK jurisprudence suggests that a deporting state would violate the ECHR if it deports a person to a state where he faces a real risk of violation of rights guaranteed under ECHR. Read More