The African Commission has found violations of the right to human dignity in cases regarding extradition and expulsion, mostly as regards the personal situation the victims find themselves in as a result of the expulsion.

John K. Modise v. Botswana

African Commission on Human and Peoples’ Rights

Communication No. 97/93

Tenth Annual Activity Report 1996-1997, Annex X

Keywords: arbitrary detention - deportation, nationality

[?]

The Facts

1. The complainant claims citizenship of Botswana under the following circumstances: His father was a citizen of Botswana who went to work in South Africa. While in South Africa, he married and the complainant was an issue of that marriage. Complainant’s mother died shortly after birth and complainant was sent to Botswana where he grew up. Complainant therefore claims Botswana citizenship by descent.

2. The complainant alleges that in 1978 he was one of the founders and leaders of the Botswana National Front opposition party. He alleges it was as a result of these activities that he was declared a ‘prohibited immigrant’ by the Botswana government.

3. On 17 October 1978, complainant was arrested and handed over to the South African Police, without being brought before any tribunal. He already had a court action in process in Botswana concerning a Temporary Occupation Permit, but due to his deportation was unable to attend the hearing.

4. When he returned to Botswana, he was arrested and deported again without hearing. After his third entry back into Botswana he was charged and convicted of unlawful entry and being a prohibited immigrant. He was serving a ten-month sentence and appealing his conviction when he was deported for a fourth time to South Africa, before his last appeal could be heard.

5. Because the complainant was not a citizen of South Africa, he was forced to live in the ‘homeland’ of Bophuthatswana. He remained there for seven years, until the government of Bophuthatswana issued a deportation order against him, which landed him in the no-man’s land between Bophuthatswana and Botswana, where he remained for five weeks before he was admitted to Botswana on a humanitarian basis. He lived there on three-month resident permits, renewable at the absolute discretion of the minister concerned, until June 1995.

6. Complainant does not possess, nor has he ever possessed, a South African passport or Bophuthatswanan nationality.

7. Complainant alleges he has suffered financial losses, since much of his property and possessions was confiscated by the government. He cannot work because he is not permitted to, and is in constant danger of being deported. Complainant has made several efforts to assert his Botswana nationality and an appeal from his prison sentence is still pending, but has not been heard. He presently has no funds to continue in the courts.

8. He is asking the Government of Botswana to recognise him as a citizen by birth.

[?]

Merits

23. The Republic of Botswana ratified the African Charter  on 17 July 1986. Although some of the events described in the communication took place before ratification, their effects continue to the present day. The current circumstances of the complainant is a result of a present policy decision taken by the Botswana government against him.

24. The complainant argues that he has been unjustly denied Botswana citizenship. In the brief submitted by the complainant’s representative, it is explained that the complainant was born in Cape Town to a father and mother both from the Goo-Modultwa Ward in Kanye of the Bangwaketse in the former Protectorate of Bechuanaland.

25. The complainant furthermore alleges that in 1978 he was one of the founding members and leaders of the opposition party, National Front of Botswana. As a consequent of his activities he was declared an prohibited immigrant and expelled to South Africa, which also expelled him several times, with all the disturbing consequences described above.

[?]

27. The complainant thus alleges that as a matter of law, by birth, he is a citizen of Botswana. The Government has nowhere contested the facts on which the complainant bases his claim.

28. Article 7 of the African Charter specifies:

Every individual shall have the right to have his cause heard. This comprises: the right to an appeal to competent national organs against acts of violating his fundamental rights as recognized and guaranteed by conventions, laws, regulations and customs in force;?

29.To this day, no court has remedied the effects of the complainant’s original deportation, which constitutes a flagrant violation of Article 7.

30. The complainant’s defence against deportation rests on the fact that he is by law a citizen of Botswana. In his trial for illegal re-entry into Botswana, this defence was not considered by the court. To this day, there is no resolution in the courts of this essential issue. This constitutes another violation of Article 7.

31. [?]. The complaint was deported to South Africa and was forced to live for eight years in the ‘homeland’ of Bophuthatswana, and then for another seven years in « No-Man’s Land », a border strip between the former south African Homeland of Bophuthatswana and Botswana. Not only did this expose him to personal suffering, it deprived him of his family, and it deprived his family of his support. Such inhuman and degrading treatment offends the dignity of a human being and thus violates Article 5.

[?]

Comment

Here the Commission found that the conditions that the victim had to live in as a result of his deportation violated his human dignity as ‘not only did this expose him to personal suffering, it deprived him of his family, and it deprived his family of his support’.

Similarly, regarding expulsion, the African Commission has stated in Amnesty International v. Zambia (Communication No. 212/98, Twelfth Activity Report, 1998-1999, Annex V) that the conditions the victims found themselves in as a result of being expelled from Malawi violated human dignity, although, unfortunately, the violation of Article 5 seems to have been forgotten in the final findings:

50. As the African Commission ruled in the case of John K. Modise / Botswana, by forcing Banda and Chinula to live as stateless persons under degrading conditions, the government of Zambia has deprived them of their family and is depriving their families of the men’s support, and this constitutes a violation of the dignity of a human being. Thereby violating Article 5 of the Charter, which guarantees the right to:”the respect of the dignity inherent in a human being and to the recognition of his legal status”.

Several cases have been brought before the Human Rights Committee and the European Court by persons claiming that their extradition or expulsion to a country where they could be subject to torture or ill-treatment would be or was a violation of the right to freedom from torture or ill-treatment. The Human Rights Committee has in General Comment 20 set out the obligations of states under Article 7 not to expose individuals to ‘the danger of torture or cruel, inhuman or degrading treatment or punishment upon return to another country by way of their extradition, expulsion or refoulement.’ In the case of  Ng v. Canada  (above), the state was found to have violated the Covenant by extraditing a person to a country where he would face a cruel and inhuman form of execution. The Committee has established that the prohibition refoulement is unconditional. 

Ahani v. Canada  

Human Rights Committee

Communication No. 1051/2002

Views of 29 March 2004

Keywords: arbitrary detention – life – torture - national security – expulsion - expulsion, case reviewed - fair hearing - interim measures

[?]

Views under article 5, paragraph 4, of the Optional Protocol

1.1 The author of the communication, initially dated 10 January 2002, is Mansour Ahani, a citizen of the Islamic Republic of Iran (‘Iran’) and born on 31 December 1964. At the time of submission, he was detained in Hamilton Wentworth Detention Centre, Hamilton Ontario, pending conclusion of legal proceedings in the Supreme Court of Canada concerning his deportation. He claims to be a victim of violations by Canada of articles 2, 6, 7, 9, 13 and 14 of the  International Covenant on Civil and Political Rights . The author is represented by counsel.

1.2 On 11 January 2002, the Committee, acting through its Special Rapporteur for New Communications, pursuant to Rule 86 of the Committee’s Rules of Procedure, requested the State party, in the event that the Supreme Court’s decision expected the same day would permit the author’s deportation, “to refrain from deportation until the Committee has had an opportunity to consider the allegations, in particular those that relate to torture, other inhuman treatment or even death as a consequence of the deportation”. By Note of 17 May 2002, the Committee, having been informed by counsel of a real risk that the State party would not comply with the Committee’s request for interim measures of protection, reiterated its request. On 10 June 2002, the State party deported the author to Iran.

The facts as submitted by the author

2.1 On 14 October 1991, the author arrived in Canada from Iran and claimed protection under the Convention on the Status of Refugees and its Protocol, based on his political opinion and membership in a particular social group. He contended, on various occasions, that he had been beaten by members of the Islamic Revolutionary Committee in Iran for being intoxicated, (ii) that his return to Iran would endanger his life due to his knowledge of Iranian covert operations and personnel, knowledge which he had acquired as a forced conscript in the foreign assassins branch of the Iranian Foreign Ministry, (iii) that he had been jailed for four years as a result of refusing to carry out a drug raid which was in fact a raid on the home of an Iranian dissident, with women and children, in Pakistan, and (iv) that he had been released after pretending to repent. On 1 April 1992, the Immigration and Refugee Board determined that the author was a Convention refugee based on his political opinion and membership in a particular social group.

2.2 On 17 June 1993, the Solicitor-General of Canada and the Minister of Employment and Immigration, having considered security intelligence reports stating that the author was trained to be an assassin by the Iranian Ministry of Intelligence and Security (“MIS”), both certified [?] that they were of the opinion that the author was inadmissible to Canada under section 19(1) of the Act as there were reasonable grounds to believe that he would engage in terrorism [?]. On the same date, the certificate was filed with the Federal Court, while the author was served with a copy of the certificate and, pursuant to section 40(1)(2)(b) of the Act, he was taken into mandatory detention, where he remained until his deportation nine years later.

[?]

2.3 On 22 June 1993, in accordance with the statutory procedure set out in section 40(1) of the Act for a determination of whether the Ministers’ certificate was “reasonable on the basis of the information available”, the Federal Court (Denault J) examined the security intelligence reports in camera and heard other evidence presented by the Solicitor-General and the Minister, in the absence of the plaintiff. The Court then provided the author with a summary of the information, required by statute to allow the affected person to be “reasonably” informed of the circumstances giving rise to the certification while being appropriately redacted for national security concerns, and offered the author an opportunity to respond.

2.4 Rather than exercising his right to be heard under this procedure, the author then challenged the constitutionality of the certification procedure and his detention subsequent to it in a separate action before the Federal Court. On 12 September 1995, the Federal Court (McGillis J) rejected his challenge, holding that the procedure struck a reasonable balance between competing interests of the State and the individual, and that the detention upon the Ministers’ certification pending the Court’s decision on its reasonableness was not arbitrary. The author’s further appeals against that decision were dismissed by the Federal Court of Appeal and the Supreme Court on 4 July 1996 and 3 July 1997, respectively.

2.5 Following the affirmation of the constitutionality of the section 40(1) procedure, the Federal Court (Denault J) proceeded with the original reasonableness hearing, and, following extensive hearings, concluded on 17 April 1998 that the certificate was reasonable. The evidence included information gathered by foreign intelligence agencies which was divulged to the Court in camera in the author’s absence on national security grounds. The Court also heard the author testify on his own behalf in opposition to the reasonableness of the certificate. The Court found that there were grounds to believe that the author was a member of the MIS, which “sponsors or undertakes directly a wide range of terrorist activities including the assassination of political dissidents worldwide”. The Federal Court’s decision on this matter was not subject to appeal or review.

2.6 Thereafter, in April 1998, an immigration adjudicator determined that the author was inadmissible to Canada, and ordered the author’s deportation. On 22 April 1998, the author was informed that the Minister of Citizenship and Immigration would assess the risk the author posed to the security of Canada, as well as the possible risk that he would face if returned to Iran. The Minister was to consider these matters in deciding under section 53(1)(b) of the Act (1) (which implements article 33 of the Convention on the Status of Refugees) whether the prohibition on removing a Convention refugee to the country of origin could be lifted in the author’s case. The author was accordingly given an opportunity to make submissions to the Minister on these issues.

2.7 On 12 August 1998, the Minister, following representations by the author that he faced a clear risk of torture in Iran, determined, without reasons and on the basis of a memorandum attaching the author’s submissions, other relevant documents and a legal analysis by officials, that he (a) constituted a danger to the security of Canada and (b) could be removed directly to Iran. The author applied for judicial review of the Minister’s opinion. Pending the hearing of the application, the author applied for release from detention pursuant to section 40(1)(8) of the Act, as 120 days has passed from the issue of the deportation order against him. (2) On 15 March 1999, the Federal Court (Denault J), finding reasonable grounds to believe that his release would be injurious to the safety of persons in Canada, particularly Iranian dissidents, denied the application for release. The Federal Court of Appeal upheld this decision.

2.8 On 23 June 1999, the Federal Court (McGillis J) rejected the author’s application for judicial review of the Minister’s decision, finding there was ample evidence to support the Minister’s decision that the author constituted a danger to Canada and that the decision to deport him was reasonable. [?].

2.9 On 11 January 2001, the Supreme Court unanimously rejected the author’s appeal, finding that there was “ample support” for the Minister to decide that the author was a danger to the security of Canada. It further found the Minister’s decision that he only faced a “minimal risk of harm”, rather than a substantial risk of torture, in the event of return to Iran to be reasonable and “unassailable”. On the constitutionality of deportation of persons at risk of harm under section 53(1)(b) of the Act, the Court referred to its reasoning in a companion case of Suresh v Canada (Minister of Citizenship and Immigration) (3) decided the same day, where it held that “barring extraordinary circumstances, deportation to torture will generally violate the principles of fundamental justice”. As Suresh had established a prima facie risk of torture, he was entitled to enhanced procedural protections, including provision of all information and advice the Minister intended to rely on, receipt of an opportunity to address the evidence in writing and to be given written reasons by the Minister. In the author’s case, however, the Court considered that he had not cleared the evidentiary threshold required to make a prima facie case and access these protections. The Court was of the view that the author, in the form of the letter advising him of the Minister’s intention to consider his danger to Canada as well as the possible risks to him in the event of expulsion, “was fully informed of the Minister’s case against him and given a full opportunity to respond”. The process followed, according to the Court, was therefore consistent with principles of fundamental justice and not prejudicial to the author even though it had not followed the Suresh requirements.

2.10 The same day, the Committee indicated its request pursuant to Rule 86 of its Rules of Procedure for interim measures of protection, however the State party’s authorities proceeded with arrangements to effect removal. On 15 January 2002, the Ontario Superior Court (Dambrot J) rejected the author’s argument that the principles of fundamental justice, protected by the Charter, prevented his removal prior to the Committee’s consideration of the case. [?]. On 16 May 2002, the Supreme Court, by a majority, dismissed the author’s application for leave to appeal (without giving reasons). On 10 June 2002, the author was deported to Iran.

The complaint

3.1 In his original communication (preceding expulsion), the author claims that Canada had violated, or would violate if it expelled him, articles 2, 6, 7, 9, 13 and 14 of the Covenant.

[?]

3.5 The author argues that expulsion would expose him to torture, in breach of article 7 of the Covenant. He refers to the Committee’s General Comment 15 on aliens and 20 on article 7, as well as the decision of Chahal v United Kingdom (5) of the European Court of Human Rights, for the proposition that the principle of non-refoulement admits of no exceptions. He contends that the State party is thus in error in respect of both its alleged claims that (i) he is not at risk of torture, and (ii) even if he were, he may be expelled on the grounds of threat to national security.

3.6 For the proposition that he is, in fact, at risk of torture, the author refers to a variety of reports and evidence generally regarding the human rights situation in Iran, including arbitrary detention, torture and extra-judicial and summary murder of political dissidents. (6) He contends that in his case, the senior Canadian intelligence officer who testified believed that he was afraid of what might happen to him in Iran and that he had defected. In addition, his refugee status had been recognized after a full hearing. He contends that his case has a high public profile and that he was not aware that he could seek a closed hearing. The details of the co-operation and (confidential) information he provided to the State party’s authorities, as well as his resistance to deportation, could “very likely” constitute treason in Iran, which has been monitoring his case. On either the State party’s or his own account of his past relationship with the MIS, therefore, there “could not be a clearer case” of a person who could expect torture in Iran.

3.7 On the same basis, the author fears that his removal will result in his execution in Iran, breaching his rights under article 6. The author also makes a corollary claim under article 7 that his detention since June 1993 in a cell in a short-term detention facility with no programmes or gainful occupation is itself cruel.

[?]

The State party’s failure to respect the Committee’s request for interim measures of protection

8.1 The Committee finds, in the circumstances of the case, that the State party breached its obligations under the Optional Protocol, by deporting the author before the Committee could address the author’s allegation of irreparable harm to his Covenant rights. The Committee observes that torture is, alongside the imposition of the death penalty, the most grave and irreparable of possible consequences to an individual of measures taken by the State party. Accordingly, action by the State party giving rise to a risk of such harm, as indicated a priori by the Committee’s request for interim measures, must be scrutinized in the strictest light.

8.2 Interim measures pursuant to rule 86 of the Committee’s rules adopted in conformity with article 39 of the Covenant, are essential to the Committee’s role under the Protocol. Flouting of the Rule, especially by irreversible measures such as the execution of the alleged victim or his/her deportation from a State party to face torture or death in another country, undermines the protection of Covenant rights through the Optional Protocol.

[?]

Consideration of the merits

[?]

10.2 As to the claims under article 9 concerning arbitrary detention and lack of access to court, the Committee notes the author’s argument that his detention pursuant to the security certificate as well as his continued detention until deportation was in violation of this article. The Committee observes that, while the author was mandatorily taken into detention upon issuance of the security certificate, under the State party’s law the Federal Court is to promptly, that is within a week, examine the certificate and its evidentiary foundation in order to determine its “reasonableness”. In the event that the certificate is determined not to be reasonable, the person named in the certificate is released. The Committee observes, consistent with its earlier jurisprudence, that detention on the basis of a security certification by two Ministers on national security grounds does not result ipso facto in arbitrary detention, contrary to article 9, paragraph 1. However, given that an individual detained under a security certificate has neither been convicted of any crime nor sentenced to a term of imprisonment, an individual must have appropriate access, in terms of article 9, paragraph 4, to judicial review of the detention, that is to say, review of the substantive justification of detention, as well as sufficiently frequent review. 10.3 As to the alleged violation of article 9, paragraph 4, the Committee is prepared to accept that a “reasonableness” hearing in Federal Court promptly after the commencement of mandatory detention on the basis of a Ministers’ security certificate is, in principle, sufficient judicial review of the justification for detention to satisfy the requirements of article 9, paragraph 4, of the Covenant. The Committee observes, however, that when judicial proceedings that include the determination of the lawfulness of detention become prolonged the issue arises whether the judicial decision is made “without delay” as required by the provision, unless the State party sees to it that interim judicial authorization is sought separately for the detention. In the author’s case, no such separate authorization existed although his mandatory detention until the resolution of the “reasonableness” hearing lasted four years and ten months. Although a substantial part of that delay can be attributed to the author who chose to contest the constitutionality of the security certification procedure instead of proceeding directly to the “reasonableness” hearing before the Federal Court, the latter procedure included hearings and lasted nine and half months after the final resolution of the constitutional issue on 3 July 1997. This delay alone is in the Committee’s view too long in respect of the Covenant requirement of judicial determination of the lawfulness of detention without delay. Consequently, there has been a violation of the author’s rights under article 9, paragraph 4, of the Covenant.

10.4 As to the author’s later detention, after the issuance of a deportation order in August 1998, for a period of 120 days before becoming eligible to apply for release, the Committee is of the view that such a period of detention in the author’s case was sufficiently proximate to a judicial decision of the Federal Court to be considered authorized by a court and therefore not in violation of article 9, paragraph 4.

10.5 As to the claims under articles 6, 7, 13 and 14, with respect to the process and the fact of the author’s expulsion, the Committee observes, at the initial stage of the process, that at the Federal Court’s “reasonableness” hearing on the security certification the author was provided by the Court with a summary redacted for security concerns reasonably informing him of the claims made against him. The Committee notes that the Federal Court was conscious of the “heavy burden” upon it to assure through this process the author’s ability appropriately to be aware of and respond to the case made against him, and the author was able to, and did, present his own case and cross-examine witnesses. In the circumstances of national security involved, the Committee is not persuaded that this process was unfair to the author. Nor, recalling its limited role in the assessment of facts and evidence, does the Committee discern on the record any elements of bad faith, abuse of power or other arbitrariness which would vitiate the Federal Court’s assessment of the reasonableness of the certificate asserting the author’s involvement in a terrorist organization. The Committee also observes that the Covenant does not, as of right, provide for a right of appeal beyond criminal cases to all determinations made by a court. Accordingly, the Committee need not determine whether the initial arrest and certification proceedings in question fell within the scope of articles 13 (as a decision pursuant to which an alien lawfully present is expelled) or 14 (as a determination of rights and obligations in a suit at law), as in any event the author has not made out a violation of the requirements of those articles in the manner the Federal Court’s “reasonableness” hearing was conducted.

10.6 Concerning the author’s claims under the same articles with respect to the subsequent decision of the Minister of Citizenship and Immigration that he could be deported, the Committee notes that the Supreme Court held, in the companion case of Suresh, that the process of the Minister’s determination in that case of whether the affected individual was at risk of substantial harm and should be expelled on national security grounds was faulty for unfairness, as he had not been provided with the full materials on which the Minister based his or her decision and an opportunity to comment in writing thereon and further as the Minister’s decision was not reasoned. The Committee further observes that where one of the highest values protected by the Covenant, namely the right to be free from torture, is at stake, the closest scrutiny should be applied to the fairness of the procedure applied to determine whether an individual is at a substantial risk of torture. The Committee emphasizes that this risk was highlighted in this case by the Committee’s request for interim measures of protection.

10.7 In the Committee’s view, the failure of the State party to provide him, in these circumstances, with the procedural protections deemed necessary in the case of Suresh, on the basis that the present author had not made out a prima facie risk of harm fails to meet the requisite standard of fairness. The Committee observes in this regard that such a denial of these protections on the basis claimed is circuitous in that the author may have been able to make out the necessary level of risk if in fact he had been allowed to submit reasons on the risk of torture faced by him in the event of removal, being able to base himself on the material of the case presented by the administrative authorities against him in order to contest a decision that included the reasons for the Minister’s decision that he could be removed. The Committee emphasizes that, as with the right to life, the right to be free from torture requires not only that the State party not only refrain from torture but take steps of due diligence to avoid a threat to an individual of torture from third parties.

10.8 The Committee observes further that article 13 is in principle applicable to the Minister’s decision on risk of harm, being a decision leading to expulsion. Given that the domestic procedure allowed the author to provide (limited) reasons against his expulsion and to receive a degree of review of his case, it would be inappropriate for the Committee to accept that, in the proceedings before it, “compelling reasons of national security” existed to exempt the State party from its obligation under that article to provide the procedural protections in question. In the Committee’s view, the failure of the State party to provide him with the procedural protections afforded to the plaintiff in Suresh on the basis that he had not made out a risk of harm did not satisfy the obligation in article 13 to allow the author to submit reasons against his removal in the light of the administrative authorities’ case against him and to have such complete submissions reviewed by a competent authority, entailing a possibility to comment on the material presented to that authority. The Committee thus finds a violation of article 13 of the Covenant, in conjunction with article 7.

10.9 The Committee notes that as article 13 speaks directly to the situation in the present case and incorporates notions of due process also reflected in article 14 of the Covenant, it would be inappropriate in terms of the scheme of the Covenant to apply the broader and general provisions of article 14 directly.

10.10 As a result of its finding that the process leading to the author’s expulsion was deficient, the Committee thus does not need to decide the extent of the risk of torture prior to his deportation or whether the author suffered torture or other ill-treatment subsequent to his return. The Committee does however refer, in conclusion, to the Supreme Court’s holding in Suresh that deportation of an individual where a substantial risk of torture had been found to exist was not necessarily precluded in all circumstances. While it has neither been determined by the State party’s domestic courts or by the Committee that a substantial risk of torture did exist in the author’s case, the Committee expresses no further view on this issue other than to note that the prohibition on torture, including as expressed in article 7 of the Covenant, is an absolute one that is not subject to countervailing considerations.

11. The Human Rights Committee, acting under article 5, paragraph 4, of the Optional Protocol to the International Covenant on Civil and Political Rights, is of the view that the facts as found by the Committee reveal violations by Canada of article 9, paragraph 4, and article 13, in conjunction with article 7, of the Covenant. The Committee reiterates its conclusion that the State party breached its obligations under the Optional Protocol by deporting the author before the Committee’s determination of his claim.

Comment

In relation to this case the Canadian Supreme Court had referred to a decision where it had held that deportation where a substantial risk of torture exists is not precluded in all circumstances. The Committee stressed that the prohibition of torture is an ‘absolute one that is not subject to countervailing considerations’ and found a violation of Article 13 in conjunction with Article 7.

The European Court dealt with this issue in the Soering v. The United Kingdom case , discussed above, and has in recent years established, like the Human Rights Committee, that the prohibition of torture and ill-treatment is unconditional. Even in cases where the state is purporting to extradite or deport persons guilty of serious crimes or persons that are considered a danger to national security, it must be assured that those persons are not facing torture or ill-treatment in the receiving countries. If not it may be found in breach of Article 3. In the case of Chahal v. The United Kingdom the Court stressed this principle.

Chahal v. The United Kingdom

European Court of Human Rights

Application No. 22414/93

Judgement of 15 November 1996

Keywords: inhuman treatment or punishment - degrading treatment – extradition - family, respect for - life - effective remedy

[?]

AS TO THE FACTS

I. The circumstances of the case

A. The applicants

12. The four applicants are members of the same family and are Sikhs.

The first applicant, Karamjit Singh Chahal, is an Indian citizen who was born in 1948. He entered the United Kingdom illegally in 1971 in search of employment. [?] on 10 December 1974 was granted indefinite leave to remain under the terms of an amnesty for illegal entrants who arrived before 1 January 1973. Since 16 August 1990 he has been detained for the purposes of deportation in Bedford Prison.

[?]

B.‘Background: the conflict in Punjab

[?]

16. Since 1984, the conflict in Punjab has reportedly claimed over 20,000 lives, peaking in 1992 when, according to Indian press reports collated by the United Kingdom Foreign and Commonwealth Office, approximately 4,000 people were killed in related incidents in Punjab and elsewhere. There is evidence of violence and human rights abuses perpetrated by both Sikh separatists and the security forces [?].

C. Mr Chahal’s visit to India in 1984

[?]

18. On 30 March 1984 he was arrested by the Punjab police. He was taken into detention and held for twenty-one days, during which time he was, he contended, kept handcuffed in insanitary conditions, beaten to unconsciousness, electrocuted on various parts of his body and subjected to a mock execution. He was subsequently released without charge.

He was able to return to the United Kingdom on 27 May 1984, and has not visited India since.

D. Mr Chahal’s political and religious activities in the United Kingdom

19. On his return to the United Kingdom, Mr Chahal became a leading figure in the Sikh community [?]. He helped organise a demonstration in London to protest at the Indian Government’s actions, became a full-time member of the committee of the “gurdwara” (temple) in Belvedere (Erith, Kent) and travelled around London persuading young Sikhs to be baptised.

[?]

E. Mr Chahal’s alleged criminal activities

23. In October 1985 Mr Chahal was detained under the Prevention of Terrorism (Temporary Provisions) Act 1984 (“PTA”) on suspicion of involvement in a conspiracy to assassinate the Indian Prime Minister, Mr Rajiv Gandhi, during an official visit to the United Kingdom. He was released for lack of evidence.

In 1986 he was arrested and questioned twice (once under the PTA), because he was believed to be involved in an ISYF conspiracy to murder moderate Sikhs in the United Kingdom. On both occasions he was released without charge.

Mr Chahal denied involvement in any of these conspiracies.

24. In March 1986 he was charged with assault and affray following disturbances at the East Ham gurdwara in London. During the course of his trial on these charges in May 1987 there was a disturbance at the Belvedere gurdwara, which was widely reported in the national press. Mr Chahal was arrested in connection with this incident, and was brought to court in handcuffs on the final day of his trial. He was convicted on both charges arising out of the East Ham incident, and served concurrent sentences of six and nine months.

He was subsequently acquitted of charges arising out of the Belvedere disturbance.

On 27 July 1992 the Court of Appeal quashed the two convictions on the grounds that Mr Chahal’s appearance in court in handcuffs had been seriously prejudicial to him.

F. The deportation and asylum proceedings

1. The notice of intention to deport

25. On 14 August 1990 the Home Secretary (Mr Hurd) decided that Mr Chahal ought to be deported because his continued presence in the United Kingdom was unconducive to the public good for reasons of national security and other reasons of a political nature, namely the international fight against terrorism.

A notice of intention to deport was served on the latter on 16 August 1990. He was then detained for deportation purposes pursuant to paragraph 2 (2) of Schedule III of the Immigration Act 1971 (see paragraph 64 below) and has remained in custody ever since.

2. Mr Chahal’s application for asylum

26. Mr Chahal claimed that if returned to India he had a well-founded fear of persecution within the terms of the United Nations 1951 Convention on the Status of Refugees [?] and applied for political asylum on 16 August 1990. He was interviewed by officials from the Asylum Division of the Home Office on 11 September 1990 and his solicitors submitted written representations on his behalf.

He claimed that he would be subjected to torture and persecution if returned to India [?].

[?]

AS TO THE LAW

I. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION (art. 3)

72. The first applicant complained that his deportation to India would constitute a violation of Article 3 of the Convention [?].

A. Applicability of Article 3 (art. 3) in expulsion cases

73. As the Court has observed in the past, Contracting States have the right, as a matter of well-established international law and subject to their treaty obligations including the Convention, to control the entry, residence and expulsion of aliens. Moreover, it must be noted that the right to political asylum is not contained in either the Convention or its Protocols [?].

74. However, it is well established in the case-law of the Court that expulsion by a Contracting State may give rise to an issue under Article 3 (art. 3), and hence engage the responsibility of that State under the Convention, where substantial grounds have been shown for believing that the person in question, if expelled, would face a real risk of being subjected to treatment contrary to Article 3 (art. 3) in the receiving country. In these circumstances, Article 3 (art. 3) implies the obligation not to expel the person in question to that country [?].

[?]

B. Expulsion cases involving an alleged danger to national security

75. The Court notes that the deportation order against the first applicant was made on the ground that his continued presence in the United Kingdom was unconducive to the public good for reasons of national security, including the fight against terrorism (see paragraph 25 above). The parties differed as to whether, and if so to what extent, the fact that the applicant might represent a danger to the security of the United Kingdom affected that State’s obligations under Article 3 (art. 3).

76. Although the Government’s primary contention was that no real risk of ill-treatment had been established [?] they also emphasised that the reason for the intended deportation was national security. In this connection they submitted, first, that the guarantees afforded by Article 3 (art. 3) were not absolute in cases where a Contracting State proposed to remove an individual from its territory. Instead, in such cases, which required an uncertain prediction of future events in the receiving State, various factors should be taken into account, including the danger posed by the person in question to the security of the host nation.

Thus, there was an implied limitation to Article 3 (art. 3) entitling a Contracting State to expel an individual to a receiving State even where a real risk of ill-treatment existed, if such removal was required on national security grounds. The Government based this submission in the first place on the possibility of implied limitations as recognised in the Court’s case-law, particularly paragraphs 88 and 89 of its above-mentioned Soering judgment. In support, they furthermore referred to the principle under international law that the right of an alien to asylum is subject to qualifications, as is provided for, inter alia, by Articles 32 and 33 of the United Nations 1951 Convention on the Status of Refugees (see paragraph 61 above).

In the alternative, the threat posed by an individual to the national security of the Contracting State was a factor to be weighed in the balance when considering the issues under Article 3 (art. 3). This approach took into account that in these cases there are varying degrees of risk of ill-treatment. The greater the risk of ill-treatment, the less weight should be accorded to the threat to national security. But where there existed a substantial doubt with regard to the risk of ill-treatment, the threat to national security could weigh heavily in the balance to be struck between protecting the rights of the individual and the general interests of the community. This was the case here: it was at least open to substantial doubt whether the alleged risk of ill-treatment would materialise; consequently, the fact that Mr Chahal constituted a serious threat to the security of the United Kingdom justified his deportation.

77. The applicant denied that he represented any threat to the national security of the United Kingdom, and contended that, in any case, national security considerations could not justify exposing an individual to the risk of ill-treatment abroad any more than they could justify administering torture to him directly.

[?]

79. Article 3 (art. 3) enshrines one of the most fundamental values of democratic society (see the above-mentioned Soering judgment, p. 34, para. 88). The Court is well aware of the immense difficulties faced by States in modern times in protecting their communities from terrorist violence. However, even in these circumstances, the Convention prohibits in absolute terms torture or inhuman or degrading treatment or punishment, irrespective of the victim’s conduct. Unlike most of the substantive clauses of the Convention and of Protocols Nos. 1 and 4 (P1, P4), Article 3 (art. 3) makes no provision for exceptions and no derogation from it is permissible under Article 15 (art. 15) even in the event of a public emergency threatening the life of the nation [?].

80. The prohibition provided by Article 3 (art. 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 (art. 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. [?].

81. Paragraph 88 of the Court’s above-mentioned Soering judgment, which concerned extradition to the United States, clearly and forcefully expresses the above view. It should not be inferred from the Court’s remarks concerning the risk of undermining the foundations of extradition, as set out in paragraph 89 of the same judgment, that there is any room for balancing the risk of ill-treatment against the reasons for expulsion in determining whether a State’s responsibility under Article 3 (art. 3) is engaged.

[?]

107. For all the reasons outlined above, in particular the attested involvement of the Punjab police in killings and abductions outside their State and the allegations of serious human rights violations which continue to be levelled at members of the Indian security forces elsewhere, the Court finds it substantiated that there is a real risk of Mr Chahal being subjected to treatment contrary to Article 3 (art. 3) if he is returned to India.

Accordingly, the order for his deportation to India would, if executed, give rise to a violation of Article 3 (art. 3).

[?]

Comment

Here the Court stressed that where there are substantial grounds to believe that a person will be subjected to torture or ill-treatment contrary to Article 3 if removed to another state, the state must ensure that the individual is not subjected to such treatment and this applies regardless of how undesirable or dangerous the person is in the eyes of that state. The Court emphasised that there is no room for balancing the risk of ill-treatment against the reason for expulsion and found that deporting Mr. Chahal to India would violate Article 3.

Similarly, in  Ahmed v. Austria  (Application No. 25964/94, Judgement of 17 December 1996), where the applicant had lost his right to asylum as a refugee after committing a serious crime, the Court discussed this issue and set out clearly that because of the non-derogable nature of the prohibition of torture the conduct of the person to be expelled or deported is immaterial and expelling a person to a country where he or she may be subject to torture raises issues under Article 3:

38. The Court reiterates in the first place that Contracting States have the right, as a matter of well-established international law and subject to their treaty obligations including the Convention, to control the entry, residence and expulsion of aliens. It also notes that the right to political asylum is not contained in either the Convention or its Protocols [?].

39. However, the expulsion of an alien by a Contracting State may give rise to an issue under Article 3 (art. 3), and hence engage the responsibility of that State under the Convention, where substantial grounds have been shown for believing that the person in question, if expelled, would face a real risk of being subjected to treatment contrary to Article 3 (art. 3) in the receiving country. In these circumstances, Article 3 (art. 3) implies the obligation not to expel the person in question to that country [?].

40. The Court further reiterates that Article 3 (art. 3), which enshrines one of the fundamental values of democratic societies [?] prohibits in absolute terms torture or inhuman or degrading treatment or punishment, irrespective of the victim’s conduct. Unlike most of the substantive clauses of the Convention and of Protocols Nos. 1 and 4 (P1, P4), Article 3 (art. 3) makes no provision for exceptions and no derogation from it is permissible under Article 15 (art. 15) even in the event of a public emergency threatening the life of the nation [?].

41. The above principle is equally valid when issues under Article 3 (art. 3) arise in expulsion cases. Accordingly, the activities of the individual in question, however undesirable or dangerous, cannot be a material consideration. The protection afforded by Article 3 (art. 3) is thus wider than that provided by Article 33 of the 1951 Convention relating to the Status of Refugees  (see paragraph 24 above and the above-mentioned Chahal judgment, p. 1855, paragraph 80). (Compare to the similar case ofAhani v. Canada (above) where the Human Rights Committee found a violation of Article 13 ICCPR in conjunction with Article 7.

In D. v. The United Kingdom   the Court elaborated on these principles, set out in earlier cases, stipulating the responsibility of the expelling state regardless of whether the alleged ill-treatment stems directly or indirectly from official authorities in the receiving country. (See also Cruz Varas et al. v. Sweden  , Application No. 15576/89, Judgement of 20 March 1991, where the Court repeated its opinion that sending the applicant to a country where he/she might face prohibited ill-treatment violated Article 3). D. v. The United Kingdom demonstrates that sometimes it is the act of removal itself that is considered inhuman, rather than the expelling state’s involvement in a future human rights violation by another state.

D. v. The United Kingdom

European Court of Human Rights

Application No. 146/1996

Judgement of 2 May 1997

Keywords: expulsion - inhuman treatment or punishment - AIDS - positive obligations

[?]

AS TO THE FACTS

[?]

6. The applicant was born in St Kitts and appears to have lived there most of his life. [?]

7. The applicant arrived at Gatwick Airport, London [?] in possession of a substantial quantity of cocaine with a street value of about 120,000 pounds sterling (GBP). ?] the applicant was remanded in custody and subsequently prosecuted for being knowingly involved in the fraudulent evasion of the prohibition on the importation of controlled drugs of class A. He pleaded guilty at Croydon Crown Court on 19 April 1993 and was sentenced on 10 May 1993 to six years’ imprisonment. He apparently behaved well while in H.M. Prison Wayland and was released on licence on 24 January 1996. He was placed in immigration detention pending his removal to St Kitts. Bail was granted by an adjudicator on 31 October 1996 after the Commission’s report had been made public.

C. Diagnosis of AIDS

8. In August 1994, while serving his prison sentence, the applicant [?] was diagnosed as HIV (human immunodeficiency virus)-positive and as suffering from acquired immunodeficiency syndrome (AIDS). The infection appears to have occurred some time before his arrival in the United Kingdom.

9. On 3 March 1995, the applicant was granted a period of compassionate leave to be with his mother whose airfare to the United Kingdom to visit him had been covered by charitable donations.

10. On 20 January 1996, immediately prior to his release on licence, the immigration authorities gave directions for the applicant’s removal to St Kitts.

The applicant’s request to remain in the United Kingdom

11. By letter dated 23 January 1996, the applicant’s solicitors requested that the Secretary of State grant the applicant leave to remain on compassionate grounds since his removal to St Kitts would entail the loss of the medical treatment which he was currently receiving, thereby shortening his life expectancy [?].

[?]

14. By letter dated 15 January 1996, Dr Evans, a consultant doctor, stated:

[?]

In view of the fact that [the applicant] has now had AIDS for over 18 months and because this is a relentlessly progressive disease his prognosis is extremely poor.

In my professional opinion [the applicant’s] life expectancy would be substantially shortened if he were to return to St Kitts where there is no medication; it is important that he receives pentamidine treatment against PCP and that he receives prompt anti-microbial therapy for any further infections which he is likely to develop ?”

[?]

G. Medical facilities in St Kitts

16. By letter dated 20 April 1995, the High Commission for the Eastern Caribbean States informed the doctor treating the applicant in prison that the medical facilities in St Kitts did not have the capacity to provide the medical treatment that he would require. [?] He stated that the necessary treatment was not available in St Kitts but was widely and freely available in the United Kingdom and requested that due consideration be given to lifting the deportation order in respect of the applicant. [?]

H. The applicant’s family situation in St Kitts

18. The applicant has no family home or close family in St Kitts other than, according to information provided by the Government, a cousin. His mother, who currently lives in the United States, has declared that her age, bad health and lack of resources prevent her from returning to St Kitts to look after her son if he were to be returned there. She has also stated that she knew of no relatives who would be able to care for him in St Kitts.

[?]

AS TO THE LAW

I. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION (art. 3)

[?]

40. The applicant maintained that his removal to St Kitts would condemn him to spend his remaining days in pain and suffering in conditions of isolation, squalor and destitution. He had no close relatives or friends in St Kitts to attend to him as he approached death. He had no accommodation, no financial resources and no access to any means of social support. It was an established fact that the withdrawal of his current medical treatment would hasten his death on account of the unavailability of similar treatment in St Kitts. His already weakened immune system would not be able to resist the many opportunistic infections to which he would be exposed on account of his homelessness, lack of proper diet and the poor sanitation on the island. The hospital facilities were extremely limited and certainly not capable of arresting the development of infections provoked by the harsh physical environment in which he would be obliged to fend for himself. His death would thus not only be further accelerated, it would also come about in conditions which would be inhuman and degrading.

41. In June 1996, his life expectancy was stated to be in the region of eight to twelve months even if he continued to receive treatment in the United Kingdom. His health had declined since then. As he was now clearly weak and close to death, his removal by the respondent State at this late stage would certainly exacerbate his fate.

[?]

B. The Court’s assessment

46. The Court recalls at the outset that Contracting States have the right, as a matter of well-established international law and subject to their treaty obligations including the Convention, to control the entry, residence and expulsion of aliens. It also notes the gravity of the offence which was committed by the applicant and is acutely aware of the problems confronting Contracting States in their efforts to combat the harm caused to their societies through the supply of drugs from abroad. The administration of severe sanctions to persons involved in drug trafficking, including expulsion of alien drug couriers like the applicant, is a justified response to this scourge.

47. However, in exercising their right to expel such aliens Contracting States must have regard to Article 3 of the Convention (art. 3), which enshrines one of the fundamental values of democratic societies. It is precisely for this reason that the Court has repeatedly stressed in its line of authorities involving extradition, expulsion or deportation of individuals to third countries that Article 3 (art. 3) prohibits in absolute terms torture or inhuman or degrading treatment or punishment and that its guarantees apply irrespective of the reprehensible nature of the conduct of the person in question [?]

48. The Court observes that the above principle is applicable to the applicant’s removal under the Immigration Act 1971. Regardless of whether or not he ever entered the United Kingdom in the technical sense (see paragraph 25 above) it is to be noted that he has been physically present there and thus within the jurisdiction of the respondent State within the meaning of Article 1 of the Convention

(art. 1) since 21 January 1993. It is for the respondent State therefore to secure to the applicant the rights guaranteed under Article 3 (art. 3) irrespective of the gravity of the offence which he committed.

49. It is true that this principle has so far been applied by the Court in contexts in which the risk to the individual of being subjected to any of the proscribed forms of treatment emanates from intentionally inflicted acts of the public authorities in the receiving country or from those of non-State bodies in that country when the authorities there are unable to afford him appropriate protection (see, for example, the Ahmed judgment, loc. cit., p. 2207, para. 44).

Aside from these situations and given the fundamental importance of Article 3 (art. 3) in the Convention system, the Court must reserve to itself sufficient flexibility to address the application of that Article (art. 3) in other contexts which might arise. It is not therefore prevented from scrutinising an applicant’s claim under Article 3 (art. 3) where the source of the risk of proscribed treatment in the receiving country stems from factors which cannot engage either directly or indirectly the responsibility of the public authorities of that country, or which, taken alone, do not in themselves infringe the standards of that Article (art. 3). To limit the application of Article 3 (art. 3) in this manner would be to undermine the absolute character of its protection. In any such contexts, however, the Court must subject all the circumstances surrounding the case to a rigorous scrutiny, especially the applicant’s personal situation in the expelling State.

50. Against this background the Court will determine whether there is a real risk that the applicant’s removal would be contrary to the standards of Article 3 (art. 3) in view of his present medical condition. In so doing the Court will assess the risk in the light of the material before it at the time of its consideration of the case, including the most recent information on his state of health (see the Ahmed judgment, loc. cit., p. 2207, para. 43).

51. The Court notes that the applicant is in the advanced stages of a terminal and incurable illness. At the date of the hearing, it was observed that there had been a marked decline in his condition and he had to be transferred to a hospital. His condition was giving rise to concern (see paragraph 21 above). The limited quality of life he now enjoys results from the availability of sophisticated treatment and medication in the United Kingdom and the care and kindness administered by a charitable organisation. He has been counselled on how to approach death and has formed bonds with his carers [?].

52. The abrupt withdrawal of these facilities will entail the most dramatic consequences for him. It is not disputed that his removal will hasten his death. There is a serious danger that the conditions of adversity which await him in St Kitts will further reduce his already limited life expectancy and subject him to acute mental and physical suffering. Any medical treatment which he might hope to receive there could not contend with the infections which he may possibly contract on account of his lack of shelter and of a proper diet as well as exposure to the health and sanitation problems which beset the population of St Kitts (see paragraph 32 above). While he may have a cousin in St Kitts (see paragraph 18 above), no evidence has been adduced to show whether this person would be willing or in a position to attend to the needs of a terminally ill man. There is no evidence of any other form of moral or social support. Nor has it been shown whether the applicant would be guaranteed a bed in either of the hospitals on the island which, according to the Government, care for AIDS patients (see paragraph 17 above).

53. In view of these exceptional circumstances and bearing in mind the critical stage now reached in the applicant’s fatal illness, the implementation of the decision to remove him to St Kitts would amount to inhuman treatment by the respondent State in violation of Article 3 (art. 3).

The Court also notes in this respect that the respondent State has assumed responsibility for treating the applicant’s condition since August 1994. He has become reliant on the medical and palliative care which he is at present receiving and is no doubt psychologically prepared for death in an environment which is both familiar and compassionate. Although it cannot be said that the conditions which would confront him in the receiving country are themselves a breach of the standards of Article 3 (art. 3), his removal would expose him to a real risk of dying under most distressing circumstances and would thus amount to inhuman treatment.

Without calling into question the good faith of the undertaking given to the Court by the Government (see paragraph 44 above), it is to be noted that the above considerations must be seen as wider in scope than the question whether or not the applicant is fit to travel back to St Kitts.

54. Against this background the Court emphasises that aliens who have served their prison sentences and are subject to expulsion cannot in principle claim any entitlement to remain in the territory of a Contracting State in order to continue to benefit from medical, social or other forms of assistance provided by the expelling State during their stay in prison.

However, in the very exceptional circumstances of this case and given the compelling humanitarian considerations at stake, it must be concluded that the implementation of the decision to remove the applicant would be a violation of Article 3 (art. 3).

[?]

Comment

In this case the Court found that returning the terminally ill applicant to a country where he would not have access to similar health care to that of the expelling country constituted ill-treatment. In this case the categories of risk in a third country deemed significant were extended to include even conditions that could not be imputed to an actor at all, namely poor medical conditions inadequate for a patient dying of AIDS. Similarly, in the case of HLR v. France  concerning a convicted drug dealer who had given evidence, leading to the conviction of other members of a Colombian drugs ring, the Court found that he should not be returned to Colombia upon release from prison as his fear of retaliation was warranted and he was facing probable ill-treatment; the reasons for the fear were not important.

The Human Rights Committee dealt with similar issues in C. v. Australia   (Communication No. 900/1999, Views of 28 October 2002), where the author complained of violations of Article 7, firstly because he was detained in such a way and for such a prolonged period as to cause him severe mental illness, from which he did not earlier suffer and which medical reports concluded was brought about by his prolonged incarceration. Secondly, the author argued that his proposed deportation to Iran would expose him to a real risk of a violation of his Covenant rights, at least of Article 7 and possibly Article 9, by Iran. In the Committee’s view, the continued detention of the author when the state was aware of his mental condition and failed to take the steps necessary to ameliorate the author’s mental deterioration constituted a violation of his rights under Article 7. The Committee also found that because the complainant would probably not have access to adequate medical care to treat his condition in Iran and that his mental illness was to some extent attributable to actions of the state, his deportation would amount to a violation of Article 7:

8.5. As to the author’s arguments that his deportation would amount to a violation of article 7, the Committee attaches weight to the fact that the author was originally granted refugee status on the basis of a well-founded fear of persecution as an Assyrian Christian, coupled with the likely consequences of a return of his illness. In the Committee’s view, the State party has not established that the current circumstances in the receiving State are such that the grant of refugee status no longer holds validity. The Committee further observes that the AAT, whose decision was upheld on appeal, accepted that it was unlikely that the only effective medication (Clozaril) and back-up treatment would be available in Iran, and found the author “blameless for his mental illness” which “was first triggered while in Australia”. In circumstances where the State party has recognized a protection obligation towards the author, the Committee considers that deportation of the author to a country where it is unlikely that he would receive the treatment necessary for the illness caused, in whole or in part, because of the State party’s violation of the author’s rights would amount to a violation of article 7 of the Covenant.

Finally, similar to D. v. The United Kingdom, the equally liberal move to recognise state responsibility for ‘speculative violations’ by non-state actors in a ‘risk country’ can be discerned in the decisions of the Human Rights Committee in relation to Article 7 ICCPR (see, for example, Kindler v. Canada , Communication No. 470/1990, Views of 30 July 1993 and  G.T. v. Australia , Communication No. 706/1996, Views of 4 November 1997), as well as in the approach followed by the Committee against Torture under the non-refoulement obligations laid down in Article 3 of the UN Convention Against Torture   (see, in particular  Elmi v. Australia , Communication No. 120/1998, Views of 14 May 1999). While some authors deduce from such developments the notion of ‘indirect responsibility’, it may be premature to apply such a concept to, for instance, the ECHR , as it is the direct consequence of the decisions of a member state to deport or take other measures that would lead to a breach of Article 3. Nor can one assume that the case-lawas it stands now allows the Court, in exceptional circumstances, to dispense with the requirement of fault and to recognise the notion of absolute responsibility under Article 3.