Protection under Article 3 of the European Convention on Human Rights. Dr. Vladislava Stoyanova

Transcription

1 Protection under Article 3 of the European Convention on Human Rights Dr. Vladislava Stoyanova vladislava.stoyanova@jur.lu.se

2 Structure The Soering principle (Soering v. The UK, ECtHR Judgment 7 July 1989) Absolute Protection from Refoulement (Chahal v. The UK and Saadi v. Italy) Diplomatic assurances (Saadi v. Italy) Lack of social/medical assistance and basic infrastructure in the receiving country (D. v The UK; N. v. The UK; MSS v. Belgium and Greece; Sufi and Elmi v. The UK, Paposhvili v. Belgium) Indiscriminate violence

3 Soering v. The UK

4 Soering v. The UK The absolute prohibition of torture and of inhuman or degrading treatment or punishment under the terms of the Convention shows that Article 3 enshrines one of the fundamental values of the democratic society making up the Council of Europe. (para.88)

5 Soering v. The UK The fact that a specialized treaty should spell out in detail a specific obligation attaching See The to UN theconvention prohibition of torture against Torture, Article 3. does not mean that an essentially See also The similar Refugee obligation is not already inherent in the general Convention, Article terms33. of Article 3. It would hardly be compatible with the underlying values of the Convention, that common heritage of political traditions, ideals, freedom and the rule of law were a Contracting State knowingly to surrender a fugitive to another State where there were substantial grounds for believing that he would be in danger of being subjected to torture, however, heinous the crime allegedly committed. (para.88)

6 Soering v. The UK Extradition in such circumstances, while not explicitly referred to in the brief and general wording of Article 3, would plainly be contrary to the spirit and intendment of the Article, and in the Court s view this inherent obligation not to extradite also extends to cases in which the fugitive would be faced in the receiving State by a real risk of exposure to inhuman or degrading treatment of punishment proscribed by Article 3. (para.88)

7 Soering v. The UK 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 from this 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 that Article. (para.90)

8 Soering v. The UK The establishment of such responsibility inevitably involves an assessment of conditions in the requesting country against the standards of Article 3 (art. 3) of the Convention. Nonetheless, there is no question of adjudicating on or establishing the responsibility of the receiving country, whether under general international law, under the Convention or otherwise. In so far as any liability under the Convention is or may be incurred, it is liability 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 (para.91)

9 Note on Death Sentence and Irreducible Life Sentence Rick of death sentence upon return (Al-Saadoon and Mufdhi v. The United Kingdom) Moreover, the applicants' well-founded fear of being executed by the Iraqi authorities during the period May 2006 to July 2009 must have given rise to a significant degree of mental suffering and that to subject them to such suffering constituted inhuman treatmentanything within the meaning of Article 3 of the Convention. (Al-Saadoon??? and Mufdhi v. The United Kingdom, para.137) puzzling about this reasoning Rick of irreducible life sentence (Kafkaris v. Cyprus, Harkins and Edwards v. The United Kingdom)

10 Prohibition on ill-treatment under the ECHR NON-REFOULEMENT torture degrading treatment inhuman treatment

11 Standard of Proof It is in principle for the applicant to adduce evidence capable of proving that there are substantial grounds for believing that, if the measure complained of were to be implemented, he would be exposed to a real risk of being subjected to treatment contrary to Article 3. ( See N. v. Finland, para.167) N. v. Finland (30 Nov 2005) - The assessment of credibility is not about the applicant s general credibility - Credibility assessment is limited to draw on circumstances relevant for assessing the risk

12 The Court acknowledges that, owing to the special situation in which asylum seekers often find themselves, it is frequently necessary to give them the benefit of the doubt when it comes to assessing the credibility of their statements and the documents submitted in support thereof. However, when information is presented which gives strong reasons to question the veracity of an asylum seeker s submissions, the individual must provide a satisfactory explanation for the alleged discrepancies. (Collins and Akasiebie v. Sweden, dec. No /05, 8 March 2007)

13 Agents of Harm Owing to the absolute character of the rights 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. (HLR v. France, para.40 )

14 Interim Measures Rule 39 of the Rules of the Court

15 Refoulement is prohibited in absolute terms

16 Chahal v. The United Kingdom (absolute protection)

17 Chahal v. The United Kingdom (absolute protection from refoulement) Article 3 enshrines one of the most fundamental values of democratic society. 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, Article 3 makes no provision for exceptions and no derogation from it is permissible under Article 15 even in the event of a public emergency threatening the life of the nation. (para.79)

18 Chahal v. The United Kingdom (absolute protection) 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 Article 32 and 33 of the UN 1951 Convention on the Status of Refugees. (para.80)

19 Saadi v. Italy (absolute protection)

20 Saadi v. Italy (UK arguments as a third party intervener) The absolute protection from refoulement is too rigid (cannot deport them + cannot put them in prison) The 1951 Refugee Convention allows for balancing Ill-treatment not by Italy, but by Tunisia (positive obligation?) The degree of risk is a speculative assessment Degrading treatment is too general concept

21 Saadi v. Italy It must therefore reaffirm the principle stated in the Chahal judgment that it is not possible to weight the risk of ill-treatment against the reasons put forward for the expulsion No in Balancing order to determine Between Risk whether and the responsibility Dangerousness of a State (Saadi, is engaged para.139) under Art. 3, even where such treatment is inflicted by another State. (Saadi, para.138) The concepts of risk and dangerousness in this context do not lend themselves to a balancing test because they are notions than can only be assessed independently from 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... (cont. on the next slide)

22 Saadi v. Italy 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 subjected to on return. (para.139)

23 The Role of Diplomatic Assurances in the Risk Assessment Abu Qatada v. the United Kingdom, App.no.8139/09, 17 Jan 2012

24 Are the assurances obtained in the particular case sufficient to remove any risk of ill-treatment? - Assurances constitute a relevant factor - Assessment of the assurances practical application - Whether the terms of the assurances have been disclosed to the ECtHR? - Whether the assurances are specific or are general and vague? - Who has given the assurances and whether that person can bind the receiving State? - Is the assurances have been issues by the central government of the receiving State, whether local authorities can be expected to abide by them?

25 (cont.) Are the assurances obtained in the particular case sufficient to remove any risk of illtreatment? - Whether the assurances concern treatment which is legal or illegal in the receiving State? - Whether the assurances have been given by a State party to the ECHR? - What is the length and strength of bilateral relations between sending and receiving States, including the receiving State s record in abiding by similar assurances? - Whether compliance with the assurances can be objectively verified through diplomatic or other monitoring mechanisms, including providing unfettered access to the applicant s lawyer?

26 (cont.) Are the assurances obtained in the particular case sufficient to remove any risk of illtreatment? - Whether there is an effective system of protection against torture in the receiving State, including whether it is willing to cooperate with international monitoring mechanisms (including international human rights NGOs), and whether it is willing to investigate allegations of torture and to punish those responsible? - Whether the applicant has previously been ill-treated in the receiving State? - Whether the reliability of the assurances has been examined by the domestic courts of the sending/contracting State

27 ECtHR on diplomatic assurances Identity of the provider of the assurances it was not established that the First Deputy Prosecutor of Kazakhstan or the institution which he represented was empowered to provide such assurances on behalf of the State and, given the lack of an effective system of torture prevention, it would be difficult to see whether such assurances would have been respected. (Baysakov and Others v. Ukraine, Application no /08, Judgment 18 February 2010, para.51)

28 ECtHR on diplomatic assurances Content of the assurances The Court notes that the Government invoked assurances from the Columbian Ministry of Foreign Affairs to the effect that the applicant would not be subjected to ill-treatment there. However, the Court observes that the assurances in question were rather vague and lacked precision; hence it is bound to question their value. (Klein v. Russia, Application no /08, Judgment 1 April 2010, para.55)

29 ECtHR on diplomatic assurances Babar Ahmad and Others v The UK, Application Nos /07, 11949/08 and 36742/08, Admissibility decision 6 July 2010 (1) they will be designated as enemy combatants; (2) they will be subjected to extraordinary rendition; (3) they might be subjected to death penalty; (4) they will be subjected to special administrative measures ; (5) they will be detained in a supermax prison such as ADX Florence; (6) if extradited they will face sentences of life imprisonment without parole and/or extremely long sentences of length in violation of Article 3.

30 ECtHR on diplomatic assurances It also recognizes that, in international relations Diplomatic Notes carry a presumption of good faith, The Court considers that, in extradition cases, it is appropriate that presumption be applied to a requesting State which has a long history of respect for democracy, human rights and rule of law, and which has longstanding extradition arrangement with Contracting States. Consequently, the Court considers that it was appropriate for the High Court, in its judgment concerning the first and second applicants, to accord a presumption of good faith to the United States Government. (Babar Ahmad and Others v The UK, Application Nos /07, 11949/08 and 36742/08, Admissibility decision 6 July 2010, para.104)

31 ECtHR on diplomatic assurances the existence of assurances does not absolve a Contracting State from its obligation to consider their practical application. (Babar Ahmad and Others v. The UK, Application Nos /07, 11949/08 and 36742/08, Admissibility decision 6 July 2010, para.106)

32 ECtHR on diplomatic assurances In further assessing the practical application of the assurances which have been given by the United States Government, the Court must also attach some importance to the fact that the applicants have been unable to point to a breach of an assurance by the United States Government that has been given to the United Kingdom Government (or indeed any other Contracting State) in the context of an extradition request, before or after the events of 11 September they [the assurances given] are specific to the applicants and are unequivocal. (Babar Ahmad and Others v. The UK, para.107)

33 Diplomatic assurances Two states reassuring each other Where does the individual stand in this interstate relation? Assurances were made necessary by breaches of multilateral human rights treaties on the first place. So why rely on assurances?

34 Protection from refoulement due to socio-economic deprivation

35 Socio-economic deprivation D. v. The UK (Judgment 21 April Exceptional 1997) circumstances: removing AIDS patient in the terminal stages of his illness, will be in violation of Article 3 the issue was one of dignified death rather than dignified life Bensaid v. The UK (Judgment The case does 6 Feb not disclose 2001) the a schizophrenic Algerian national exceptionalwith circumstances long termof illness D. v requiring constant management The UK, where the applicant was in the final stages of a terminal illness, AIDS, and had no prospect of medical care or family support on expulsion to St. Kitts. (para.40)

36 Socio-economic deprivation N v. The UK (Grand Chamber Judgment 27 May 2008) The Court does not exclude that there may be other very exceptional cases where the humanitarian considerations are equally compelling. However, it considers that it should maintain the high threshold set in D. v. the United Kingdom and applied in its subsequent case-law, which it regards as correct in principle, given that in such cases the alleged future harm would emanate not from the intentional acts or omissions of public authorities or non-state bodies, but instead from a naturally occurring illness and the lack of sufficient resources to deal with it in the receiving country (para.43)

37 Socio-economic deprivation N v. The UK (Grand Chamber Judgment 27 May 2008) Balance?? 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. Advances in medical science, together with social and economic differences between countries, entail that the level of treatment available in the Contracting State and the country of origin may vary considerably. (para.44)

38 Socio-economic deprivation N v. The UK (Grand Chamber Judgment 27 May 2008) While it is necessary, given the fundamental importance of Article 3 in the Convention system, for the Court to retain a degree of flexibility to prevent expulsion in very exceptional cases, Article 3 does not place an obligation on the Contracting State to alleviate such disparities through the Budgetary provision considerations? of free and unlimited health care to all Floodgate aliens without concerns? a right to stay within its jurisdiction. A finding to the contrary would place too great a burden on the Contracting States. (para.44) N. died 5 months after her deportation

39 Socio-economic deprivation S.J. v. Belgium, Application No /10, 27 February an HIV-positive but onlywoman in a from very Nigeria, claiming that returning exceptionalher case, andwhere three the small children would humanitarian amount to inhuman grounds and are degrading treatment sincecompelling she would not have access to adequate antiretroviral not treatment criticallythere ill fit to travel S.J. v. Belgium [GC] 19 March 2015 friendly settlement strike the application out M.T. v. Sweden, Application No. 1412/12, 26 Feb 2015 Tatar v. Switzerland, Application No /12, 14 April 2015 medical treatment of his condition would be principle be available to the applicant

40 Socio-economic deprivation Paposhvili v. Belgium [GC], Application No /10, 13 Dec expulsion of an applicant to Georgia; suffers from numerous diseases including leukaemia and hepatitis - in Belgium with his family for over 17 years; denied residence permit due to criminal convictions. - Chamber judgment from 17 April 2014 According to the medical certificates, his conditions are all stable and under control at present; his life is therefore not in imminent danger and he is able to travel.

41 Socio-economic deprivation Paposhvili v. Belgium [GC] The Court considers that the other very exceptional cases within the meaning of the judgment in N. v. the United Kingdom (para.43) which may raise an issue under Article 3 should be understood to refer to situations involving the removal of a seriously ill person in which substantial grounds have been shown for believing that he or she, although not at imminent risk of dying, would face a real risk, standard on account of the absence of appropriate treatment in the receiving country or the lack of access to such treatment, of being exposed to a serious, rapid and irreversible decline in his or her state of health resulting in intense suffering or to a significant reduction in life expectancy. para.183 A narrow fissure in the very exceptional cases

42 Socio-economic deprivation Paposhvili v. Belgium [GC] [ ] what is in issue here is the negative obligation not to expose persons to a risk of ill-treatment proscribed by Article 3. It follows that the impact of removal on the person concerned must be assessed by comparing his or her state of health prior to removal and how it would evolve after transfer to the receiving State [emphasis added]. para.188.

43 Socio-economic deprivation Paposhvili v. Belgium [GC] - Retention of the very exceptional standard test???

44 Socio-economic deprivation Paposhvili v. Belgium [GC] How to assess the assistance in the receiving state? - Availability and accessibility (para. 189)

45 Socio-economic deprivation Paposhvili v. Belgium [GC] Individual and sufficient assurances Where after the relevant information has been examined, serious doubts persist regarding the impact of removal on the persons concerned on account of the general situation and/or their individual situation the returning State must obtain individual and sufficient assurances from the receiving State, as a precondition for removal, that appropriate treatment will be available and accessible to the persons concerned so that they do not find themselves in a situation contrary to Article 3 [emphasis added]. para.191.

46 Indiscriminate Violence

47 Indiscriminate Violence/Individualization of the Harm Vilvarajah and Others v. The United Kingdom (1991) The evidence before the Court concerning the background of the applicants, as well as the general situation, does not establish that their personal position was any worse than the generality of other members of the Tamil community or other young male Tamils who were returning to the country. (para.111) Salah Sheekh v. The Netherlands (2007) It might render the protection offered by that provision illusory if, in addition to the fact that he belongs to the Ashraf which the Government have not disputed, the applicant be required to show the existence of further special distinguishing features. (para.148)

48 Indiscriminate Violence/Individualization of the Harm The principle of intense general violence was not N.A. v The UK (2008) applied in this case. From the foregoing survey of its case law, it follows that the court has never excluded How is the the intensity possibility of the that a general situation of violenceconflict in a country to be assessed? of destination will be of a sufficient level of intensity as to entail that any removal to it would necessary breach Article 3 of the Convention. Nevertheless, the Court would adopt such an approach only in the most extreme cases of general violence, where there was a real risk of ill-treatment simply by virtue of an individual being exposed to such violence on return. (para.115)

49 Indiscriminate Violence/Individualization of the Harm Sufi and Elmi v. the United Kingdom (2011)

50 The Court considers that the large quantity of objective information overwhelmingly indicates that the level of violence in Mogadishu is of sufficient intensity to pose a real risk of treatment reaching the Article 3 threshold to anyone in the capital. In reaching this conclusion the Court has had regard to the indiscriminate bombardments and military offensives carried out by all parties to the conflict, the unacceptable number of civilian casualties, the substantial number of persons displaced within and from the city, and the unpredictable and widespread nature of the conflict. (Sufi and Elmi, para.248) Indiscriminate Violence/ Individualization of the Harm Sufi and Elmi v the United Kingdom (2011)

51 Socio-economic deprivation Humanitarian conditions in refugee and IDP camps Dadaab, the world s biggest refugee camp, picture from Al-Jazzera English Sufi and Elmi v the United Kingdom (2011) The Ifo Refugee Camp,, picture from Der Spiegel

52 Humanitarian conditions in refugee and IDP camps If the dire humanitarian conditions in Somalia were solely or even predominantly attributable to poverty or to the State s lack of resources to deal with a naturally occurring phenomenon, such as a drought, the test in N. v. the United Kingdom may well have been considered to be the appropriate one. However, it is clear that while drought has contributed to the humanitarian crisis, that crisis is predominantly due to the direct and indirect actions of the parties to the conflict. The reports indicate that all parties to the conflict have employed indiscriminate methods of warfare in densely populated urban areas with no regard to the safety of the civilian population. (cont.)

53 Humanitarian conditions in refugee and IDP camps This fact alone has resulted in widespread displacement and the breakdown of social, political and economic infrastructures. Moreover, the situation has been greatly exacerbated by al-shabaab s refusal to permit international aid agencies to operate in the areas under its control, despite the fact that between a third and a half of all Somalis are living in a situation of serious deprivation. (Sufi and Elmi v the United Kingdom, para.282)

54 Thank you! Vladislava Stoyanova