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8.5.3
The
Soering
principle and deportation
Subsequent developments illustrate that the ECHR is prepared, within the context
of Art 3, to extend the
Soering
principle to other forms of expulsion. In
Chahal v UK,
169
the ECHR observed that the prohibition against expulsion in Art 3 cases was
absolutely irrespective of the applicant’s conduct and applied to deportation. The
applicant, a leading figure in the Sikh community in the UK, was detained in 1985
under the Prevention of Terrorism (Temporary Provisions) Act 1984 in respect of a
conspiracy to assassinate the Indian Prime Minister.
170
The Secretary of State ordered
his deportation to India on the grounds that his continued presence in the UK was
not conducive to the public good for reasons of national security.
171
The applicant
sought asylum on the basis that he could establish the well founded fear of
persecution test as required under the terms of the 1951 UN Convention on the Status
of Refugees.
172
His application was rejected. Following Chahal’s successful
application for judicial review, the Secretary of State was required to re-examine the
case. Again asylum was refused and the deportation order confirmed. The applicant
complained that his deportation would result in a violation of Art 3 of the European
Convention on Human Rights. The majority of the ECHR was satisfied that the order
for the applicant’s deportation would, if executed, give rise to a violation of Art 3,
and where there are substantial grounds for believing that expulsion would result
in ill-treatment, the national interests of the State could not be invoked to override
the interests of the individual. The European Court observed that it was entitled to
conduct its own examination of the existence of a real risk of ill-treatment and
considered reports supplied by Amnesty International and the UN’s special
rapporteur on torture. Notwithstanding the efforts of the Indian authorities to bring
about reform, the European Court was sufficiently satisfied that the violation of
human rights by certain members of the security forces in Punjab and elsewhere in
India is a recalcitrant and enduring problem
173
and it was accepted that the applicant’s
return would amount to a violation of Art 3.
While the guarantees provided by Art 3 have generally been held to apply to
risks created by public authorities in the receiving State, in
D v UK,
174
the ECHR was
prepared to assess the risk resulting from the State’s inability to prevent a violation
of Art 3. On his arrival in the UK, the applicant was found in possession of a large
169 (1996) 23 EHRR 413.
170 He was eventually released without charge. In 1986, he was convicted of assault and affray and
served concurrent sentences of six and nine months; however, these convictions were eventually
quashed by the Court of Appeal.
171 See Immigration Act 1971, s 3(5)(b).
172 189 UNTS 150.
173 (1996) 23 EHRR 413, para 105.
174 (1997) 24 EHRR 423.
International Criminal Law
210
quantity of a proscribed drug and sentenced to six years’ imprisonment. He was
discovered to be suffering from an AIDS-related condition and by mid-1996 his
prognosis was poor. Shortly before his release from prison, the immigration
authorities ordered his removal from the UK. The applicant complained that the
receiving State could not provide the medical care needed to treat his condition and
his health would deteriorate. While the ECHR accepted that the expulsion of alien
drug couriers was a justified response to drug-trafficking, it must be balanced against
the absolute prohibition on torture and inhuman or degrading treatment. Where
there was a real risk that the applicant’s deportation would result in a violation of
Art 3, the balance must be in favour of non-expulsion. Persons can be lawfully
detained pending a deportation hearing. In
Ex p Saadi
175
the House of Lords held
that detention for a short period in order to bring about a speedy decision making
process was not necessarily unlawful where the power is exercised to prevent
unauthorised entry.
The
Soering
principle was further extended in
HLR v France,
176
when the ECHR
was called upon to consider whether the inability of the receiving State to protect
the applicant from the acts of a third party would infringe Art 3. Having been found
in possession of cocaine, the applicant was sentenced to imprisonment by a French
court and permanently excluded from French territory. During the criminal
proceedings, he gave evidence against members of a Colombian drug cartel and as
a consequence feared for his safety. He claimed that his deportation to Colombia
would give rise to a violation of Art 3 on the grounds that the Colombian authorities
were incapable of giving him adequate protection from reprisals by members of the
drug cartel. Whilst the Commission found for the applicant, the European Court
was not satisfied that there were substantial grounds for believing his deportation
would expose him to a real risk of the treatment prohibited by Art 3. Furthermore,
this claim must be assessed against the background of the general situation regarding
the protection of human rights in Colombia and the applicant failed to show that his
personal situation would be worse than that of other Colombians were he to be
deported. Notwithstanding the outcome of this case, the European Court
acknowledges that Art 3 of the European Convention on Human Rights absolutely
prohibits torture or inhuman or degrading treatment, irrespective of the victim’s
conduct or the source of the ill-treatment and, if extradition treaties fail to protect
the person adequately, a minimum level of protection is provided by the Convention.
However, many of the other substantive clauses in the Convention and its protocols
make provision for exceptions and derogations in the event of a public emergency.
177
The Convention does not in principle prohibit contracting States from regulating
the length of stay of aliens and, in some circumstances, an expulsion motivated by
concern to regulate the labour market will be justified.
178
Accordingly, the ECHR is
not always willing to accept that Convention rights provide a bar to extradition.
175 [2002] UKHL 41.
176 (1998) 26 EHRR 29.
177 See
Ireland v UK,
Ser A, No 25, para 65.
178
Berrehab v The Netherlands
(1988) 11 EHRR 322.
Chapter 8: Extradition and Abduction
211
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