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8.5.2
Prohibition against torture and inhuman and degrading
treatment
In the landmark case of
Soering v UK,
160
the ECHR was of the opinion that to surrender
a person to another State where there were substantial grounds for believing that he
would be in danger of being subjected to torture, inhuman or degrading treatment
would be a violation of Art 3 of the European Convention on Human Rights. In this
case, the UK sought to extradite a German national from the UK to the US under the
terms of an extradition treaty that had been incorporated into the law of the UK.
161
The
applicant was accused of committing a murder in Virginia, in the US, and argued that
his extradition would amount to a violation of Art 3 of the Convention. In capital
murder cases, the State of Virginia could impose the death penalty which generally
involved a prisoner spending long periods of time on ‘death row’. The applicant
accepted that the death penalty was not
per se
contrary to the Convention as Art 2(1)
permits capital punishment under certain conditions. However, he argued that
exposure to the death row phenomenon would amount to inhuman and degrading
treatment and infringe Art 3. The UK Government submitted that the Convention
should not be interpreted so as to impose responsibility on a contracting State for acts
which occur outside its jurisdiction. The basis for this argument was that such an
interpretation would interfere with international treaty rights and lead to a conflict
with the norms of the international judicial process. Further, it would involve
adjudication on the internal affairs of a foreign State and its domestic criminal justice
system. In support of this argument, the UK Government relied upon traditional
principles of extradition which respect the rule of non-inquiry. In rejecting this
argument, the ECHR accepted that liability is incurred by the extraditing contracting
State by reason of its having taken action which has as a direct consequence the exposure
of an individual to proscribed ill-treatment.
162
Furthermore, it was noted that:
158
For further discussion of this case and extradition and human rights generally, see
op cit,
Swart,
note 39, pp 505–34.
159 In
Ahmed v Austria
(1996) 24 EHRR 278, para 41, it was noted that: The protection afforded by Art 3 is
thus wider than that provided by Art 33 of the UN 1951 Convention on the Status of Refugees.’
160 (1989) 11 EHRR 439.
161 By Orders in Council, namely, the USA (Extradition) Order 1976 SI 1976/2144 and the USA
(Extradition Amendment) Order 1986 SI 1986/2020.
162 (1989) 11 EHRR 439, para 91.
International Criminal Law
208
…Art 3 enshrines one of the fundamental values of the democratic societies making
up the Council of Europe. It is also to be found in similar terms in other international
instruments such as the 1966 International Covenant on Civil and Political Rights
and the 1969 American Convention on Human Rights and is generally recognised
as an internationally accepted standard.
163
Since
Soering,
the ECHR has consistently reiterated its position regarding Art 3, which
it accepts encapsulates the most fundamental right of an individual. Despite
acknowledging the risk of establishing safe havens for fugitive offenders which could
undermine the foundations of extradition, the ECHR has steadfastly maintained that
there was no room for balancing the risk of ill-treatment against the reasons for expulsion
in determining whether a State’s responsibility under Art 3 is engaged.
164
Indeed, in
Hilal v UK
165
the ECHR observed that notwithstanding the State’s right to control entry,
Art 3 implies an obligation not to expel if there is a real risk of torture. In
Jabari v Turkey,
166
the ECHR observed that having regard to the absolute nature of Art 3 States must
undertake a rigorous scrutiny
167
of claims that expulsion to a third country will expose
that individual to treatment prohibited by Art 3. The applicant, an Iranian national,
alleged that she would face a real risk of ill-treatment and death by stoning if expelled
by Turkey and returned to Iran. Finding for the applicant, the ECHR held that the
Turkishauthoritieshadfailedtoengageinanymeaningfulassessmentoftheapplication.
Following the terrorist attacks in the US in September 2001, concerns have been
expressed regarding the problems which may result if Council of Europe States are
reluctant to extradite to the US on the basis of the death row phenomenon. However,
the ECHR has generally indicated its willingness to accept undertakings from the
United States as evidence that extradition will not give rise to a breach of Art 3.
The
Soering
principle requires that applicants show that there are ‘substantial
grounds’ for their argument that they would be exposed to inhuman and degrading
treatment. In the absence of convincing evidence to this effect, extradition to States
with poor human rights records will not necessarily be contrary to the Convention.
In
Mamatkulov and Abdurasulovic v Turkey,
168
for example, the applicants complained
that following their extradition from Turkey to Uzbekistan their lives were at risk
and they were in danger of being subjected to torture. The complaint also related to
the unfairness of Turkish extradition proceedings and criminal proceedings in
Uzbekistan. The ECHR reiterated that while contracting States have the right to
control the entry, residence and expulsion of aliens, States may incur responsibility
where substantial grounds exist for believing that a person would face a real risk of
being subjected to treatment which is contrary to Art 3. Noting that the applicants in
this case had already been expelled, the ECHR held that Turkey failed to comply
with procedures designed to assist the ECHR carry out an effective examination of
the application. However, while the evidence in this case indicated concern relating
to the general situation in Uzbekistan, it did not confirm the specific allegations. In
addition, allegations that the applicants had been subjected to torture were not
163
Ibid,
para 88.
164
Ibid,
para 81.
165 (2001) 33 EHRR 2.
166 (2000) 9 BHRC 1.
167
Ibid,
para 39.
168 Application Nos 46827/99 and 46951/99.
Chapter 8: Extradition and Abduction
209
corroborated by medical examinations conducted by prison doctors. Accordingly,
the ECHR found that there was insufficient evidence to warrant a finding of a
violation of Art 3. Referring to the complaint regarding the fairness of proceedings,
the ECHR emphasised that proceedings relating to the entry and expulsion of aliens
do not invoke fair trial rights under Art 6.
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