European Court stresses Article 3 of the Human Rights Convention is absolute
In a highly significant judgment the European Court of Human Rights has found that the proposed deportation of Nassim Saadi (a Tunisian national) to Tunisia would breach Article 3 of the European Convention on Human Rights (the “ECHR”). The order to deport Mr Saadi had been justified by the Italian authorities as comprising an “urgent measure to combat international terrorism”
The Court had permitted the United Kingdom to intervene as a third party. It unanimously rejected the UK’s argument that in deciding whether the deportation of someone suspected of terrorist offences and who posed a threat to the national security of States which had contracted to the Convention would breach Article 3 the risk of torture or inhuman or degrading treatment had to be weighed against the danger he or she posed to national security. The Court also rejected the UK’s argument that in order to be able to rely upon Article 3 to resist their removal from a state which had contracted to the ECHR people like Mr Saadi should have to prove that it was “more likely than not” that they would not be tortured or subjected to inhuman or degrading treatment or punishment – and that in cases like these this test should replace the question of whether there was a real risk that the person concerned would be tortured or otherwise treated contrary to Article 3.
Mr Saadi was arrested in Italy on suspicion of involvement in international terrorism in 2002. Among other things he was charged with conspiracy to commit international offences including attacks with explosive devices. However the Milan Assize court found that the acts he was accused of did not constitute international terrorism but instead criminal conspiracy. They sentenced him to four and a half years’ imprisonment. Both Mr Saadi and the prosecution appealed against this (Mr Saadi stating that he should have been acquitted of everything - the prosecution stating that the constituent elements of the crime of international terrorism had been made out due to the evidence showing that Mr Saadi and others had a plan to commit a terrorist act). As the appeal proceedings continued the Italian government obtained from Tunisia written assurances that Mr Saadi would not be treated contrary to his rights protected by Article 3 of the ECHR. The prosecution’s challenge to the Milan court’s conviction was successful. Its appeal against Mr Saadi’s conviction and sentence was listed before the Milan Assize Court of Appeal for 10 October 2007.
Mr Saadi was released from prison (where he had been since 2002) in August of 2006. He had served the sentence imposed on him by the Milan Assize court. However four days after his release the Italian Ministry of the Interior ordered Mr Saadi’s deportation to Tunisia. Shortly thereafter Mr Saadi requested political asylum in Italy. In support of his application he relied upon the fact that he had recently been convicted in his absence by a military court in Tunisia to twenty years’ imprisonment for being a member of a terrorist organisation and for incitement to terrorism. The head of the Milan police authority served a notice on Mr Saadi stating that his request for asylum could not be considered because he was a danger to Italy’s security. He made a fresh request for asylum on 12 September 2006 relying on a letter from the director of the World Organisation Against Torture to the Italian Prime Minister in which the director said that he was extremely concerned about Mr Saadi’s fate on his enforced return to Tunisia. This was also refused.
With nothing preventing his deportation Mr Saadi then applied to the European Court and asked it to suspend or to annul the decision to deport him under its powers provided by rule 39 of the Rules of Court. After initial enquiries made of the Italian authorities by the Court it applied rule 39 on 5 October of 2006.
The UK’s intervention was, it appears, at least the third such attempt to get the European Court to revisit the conclusions it reached over ten years ago in Chahal v the UK (1996) 23 EHRR 413. In Judge Myer’s concurring judgment in Saadi he notes that there are two other cases still pending before the European Court of Human Rights in which the UK has intervened on the same basis – these are Ramzy v the Netherlands (25424/05) and A v the Netherlands (4900/06). The UK’s argument derives from the some of the European Court’s remarks in Soering v the UK (1989) 11 EHRR 439, where the Court described the whole of the European Convention on Human Rights as:
“the search for a fair balance between the demands of the general interests of the community and the requirements of the protection of the individual’s fundamental rights”
adding that:
“the establishment of safe havens for fugitives would not only result in danger for the State obliged to harbour the protected person but also tend to undermine the foundations of extradition. These considerations must also be included among the factors to be taken into account in the interpretation and application of notions of inhuman or degrading treatment or punishment in extradition cases.”
But in Chahal the Court confirmed that:
"It should not be inferred from the court’s remarks about the risks of undermining the foundations of extradition, as set out in para 89 of [Soering] 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 is engaged."
The UK’s submissions were as follows:
• While Article 3 was an absolute right the treatment prohibited by it would not (in a case like Mr Saadi’s which involved the expulsion of someone from the territory of a Member State ) be inflicted by the Member State or its agents but by the authorities in another State. Not exposing someone to possibility of this kind of treatment was an “implied positive obligation” – not a positive obligation. Because of this the individual rights of the person facing deportation had to be balanced against the interests of the community.
• The test of a real risk of a breach of rights protected by Article 3 was a speculative test. The kinds of treatment prohibited were also wide – torture was obviously an extremely serious form of treatment, but the article also covered degrading treatment which was a far more general concept. The extent of the danger a person posed to the national security also varied considerably.
• For these reasons the approach followed in Chahal had to be re-examined and altered. The Chahal judgment did not reflect a universally recognised moral imperative and was in contradiction with the intentions of the original signatories of the Convention. Basically if the Member State wishing to deport someone produced evidence showing that he or she was a threat to national security – to oppose his or her deportation it would be necessary for the potential deportee to produce stronger evidence to show the existence of the risk of being ill-treated in the destination country.
• Member States could obtain assurances from destination countries that the people who were to be deported would not be tortured or degraded. Although in Chahal the Court had said that it was necessary to examine whether assurances of this kind could be sufficient protection against ill treatment – it was clear from the majority and minority opinions of the judges in that case that identical assurances could be differently interpreted.
• As things stood there was a disparity between the absolute nature of Article 3 and the protection provided by the Convention relating to the status of Refugees. Refugees could be denied protection if there was a risk to national security or if the protection the Convention provided was sought by someone who had committed acts contrary to the principles of the United Nations. The absence of such bars on the current interpretation of Article 3 meant that it was contrary to the principle that States could use immigration legislation to protect themselves from external security threats.
In Saadi the Court began its determination of the points made by the UK by reiterating that Article 3 is an absolute ban on torture and inhuman or degrading treatment. This it said is one of the fundamental values of democratic societies. Unlike almost all of the other Articles of the Convention no derogation is possible from this absolute prohibition.
The Court went on to point out that the test of the existence of a real risk of a breach of rights protected by Article 3 is necessarily rigorous. While it was often established by human rights reports – the Court had decided that the mere possibility of ill treatment would not amount to a breach of Article 3. In this case the Court conducted its own examination of human rights reports concerning practices in Tunisia from the US Department of State, Amnesty International and Human Rights Watch.
The Court noted that Member States face immense difficulties in protecting their communities from violence caused by terrorists. However it said that this must not call the absolute nature of Article 3 of the ECHR into question. Because of this – the principle in Chahal had to be reaffirmed; it is not possible to weigh the risk of ill treatment faced by someone against the risks to national security identified by the State seeking his or her deportation in reaching a decision as to whether Article 3 is engaged. His or her conduct however undesirable or dangerous cannot be taken into account. It followed that the protection provided by Article 3 is wider than that provided by the Refugee Convention.
The UK’s argument advocating balancing the risk of harm against the dangerousness of the potential deportee was misconceived. These two concepts – risk on the one hand and dangerousness on the other can only be assessed independently of each other. Put simply:
“Either the evidence adduced before the Court reveals that there is a substantial risk if the person is sent back or it does not. 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 subject to on return.”
The Court found that the UK government’s argument relating to the standard of proof was also impossible to square with the absolute nature of Article 3. It rephrased the argument like this:
“It amounts to asserting that, in the absence of evidence meeting a higher standard, protection of national security justifies accepting more readily a risk of ill-treatment for the individual.”
The Court said that it found no reason to modify the applicable standard of proof by requiring that people in Mr Saadi’s circumstances should have to prove that it was “more likely than not” they would be tortured or subjected to inhuman or degrading treatment.
Summing up its rejection of the UK’s submissions the Court noted that the Court in Chahal had already rejected similar arguments. Even if the terrorist threat had increased since that judgment in 1996 (both the Italian and the UK governments insisted that it had) that would not call the absolute nature of Article 3 into question.
The Court also made clear its dissatisfaction with the UK’s submission regarding the use of assurances obtained from countries like Tunisia to the effect that the person concerned would not be ill-treated. It found “numerous and regular” reports of torture carried out by the Tunisian authorities. It pointed out that in fact the Tunisian authorities had not provided the specific assurances with regard to Mr Saadi which the Italian government had requested. It found that the fact that Tunisia had signed up to international treaties and conventions prohibiting torture did not constitute sufficient protection for Mr Saadi. It reiterated its conclusion (reached by a majority of the Court) in the Chahal case. This was to the effect that even where such assurances were given in the form in which they were requested – their existence was not of itself any guarantee against treatment prohibited by Article 3. This was because whatever the assurances said could not amount to a guarantee that members of the security forces would not themselves perpetrate acts of torture.
Following its own detailed examination into the human rights practices of Tunisia the Court found that it was clear that Mr Saadi had to succeed in his application regarding his proposed deportation’s amounting to a breach of his rights protected by Article 3. In the light of its conclusion in relation to Article 3 the Court did not find it necessary to reach any conclusion regarding the alleged simultaneous breaches of his rights protected by Articles 6 and 8, and Article 1 of Protocol No 7 of the ECHR – although all of these applications were admissible.
Plainly this judgment is highly significant. It demonstrates that the European Court regards the absolute nature of Article 3 of the ECHR to be fundamental to the principles of human rights. It explains that there is no substance in the suggestion that previous judgments like Chahal were somehow not representative of the fact that this principle is universally recognised.
The UK government has lost the argument over the “absoluteness” issue. It now also has to explain how its practice of obtaining assurances from countries to the effect that they will not torture people the UK wishes to deport there is consistent with this judgment. The current UK law on this point is expressed in the Court of Appeal’s judgment in MT (Algeria) and others v Secretary of State [2007] EWCA Civ 808 (30-7-2007). The Court there indicated that the question of whether assurances could be relied upon was a question of fact to be decided by the Special Immigration Appeals Tribunal. In the light of this judgment it seems likely that the question is once again one of law.
There is a helpful concurring judgment provided joint by Judge Myer, which is joined by Judge Zagrebelsky. In it Judge Myer says that he would not be surprised if some readers found it difficult to understand:
“..that the Court by emphasising the absolute nature of Article 3 seems to afford more protection to the non-national applicant who has been found guilty of terrorist related crimes than to the protection of the community as a whole from terrorist violence.”
The Judge however explains this by reference to the dual threat for human rights which terrorism creates. It is:
“..a direct threat posed by acts of terrorism and an indirect threat because anti-terror measures themselves risk violating human rights. Upholding human rights in the fight against terrorism is first and foremost a matter of upholding our values, even with regard to those who may seek to destroy them. There is nothing more counterproductive than to fight fire with fire, to give terrorists the perfect pretext for martyrdom and for accusing democracies of using double standards. Such a course of action would only serve to create fertile breeding grounds for further radicalisation and the recruitment of future terrorists”.
