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In Search of a Fair Balance: The Absolute Character of the Prohibition of Refoulement under Article 3 ECHR Reassessed

  • HEMME BATTJES

Abstract

According to well-established case law of the European Court of Human Rights, the prohibition on expulsion resulting in ill-treatment under Article 3 of the European Convention on Human Rights is ‘absolute’: it does not allow for balancing of interests. Analysis of the Court's case law, however, shows that the application of the provision involves various forms of balancing, for example when delimiting the burden of proof or qualifying an act as ill-treatment. The absolute character expresses a value judgement about the importance of the prohibition, and it serves as an argumentative tool applied to sustain wide or inclusive readings of Article 3 ECHR.

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1 Saadi v. the United Kingdom, Judgment of 28 February 2008, [2008] ECHR.

2 E.g. N. v. the United Kingdom, Judgment of 27 May 2008, [2008] ECHR.

3 Golder v. UK, Judgment of 21 February 1975, [1975] ECHR, (Ser. A vol 18), at. 29; Banković et al. v. Belgium et al., Judgment of 12 December 2001, [2001] ECHR, Rep. 2001-XII, at 55 f.

4 See Articles 31 and 32 VTC, Vienna Convention on the Law of Treaties of 24 May 1969, 1155 UNTS 331.

5 A more extensive discussion of how I think the VTC rules should be understood and applied can be found in H. Battjes, European Asylum Law and International Law (2006), 14–25.

6 Chahal v. the United Kingdom, Judgment of 15 November 1996, [1996] ECHR, Rep 1996-V, at 80.

7 Ibid., at 81.

8 Saadi, supra note 1.

9 N v. UK, supra note 2, at 42.

10 Ibid., at 44.

11 Cf. Ireland v. United Kingdom, Judgment of 18 January 1978, [1978] ECHR, (Ser. A25), at 162.

12 Cf. ibid., at 163; Saadi, supra note 1, at 127.

14 Al-Adsani v. UK, Judgment of 21 November 2001, [2001] ECHR, Rep. 2001-XI, at 53.

15 Chahal, supra note 6; Saadi, supra note 1, at 127.

16 Soering v. the United Kingdom, Judgment of 7 July 1989, [1989] ECHR (Ser A 161), at 88 (emphasis added).

17 G. Noll, Negotiating Asylum (2000), 461 (referring to other authors).

18 D. Seidermann, Hierarchy in International Law – The Human Rights Dimension (2001), 77–8.

19 Ibid., at 36.

20 Art. 53 VTC entails that not even the ‘international community of states’ can modify a jus cogens rule by means of jus dispositivum, that is, by general international law that does not possess peremptory character. For identification of jus cogens norms this requirement has no meaning next to the non-derogability requirement.

21 ILC Yearbook 2 (1966), at 247–8, quoted by Seidermann, supra note 18, at 45.

22 Seidermann, supra note 18, at 85.

23 Soering, supra note 16, at 88 (emphasis added).

24 R. A. Lawson, Het EVRM en de Europese Gemeenschappen (1999), at 176.

25 Al-Adsani, supra note 14, at 53.

26 Ibid., at 55–7.

27 Ibid., at 58.

28 Ibid., at 59.

29 Ibid., at 60.

30 Ibid., at 61.

31 Arts. 7 ICCPR and 5 UDHR speak of ‘to torture or to cruel, inhuman or degrading treatment or punishment’, Art. 3 of ‘torture or inhuman or degrading treatment or punishment’. As these are understood to list forms of ill-treatment in descending order of severity (see section 6 below), ‘cruel’ treatment is covered by Art. 3 ECHR as well.

32 Art. 31(1)(c) VTC; cf. Al-Adsani, supra note 14, at 55, and Loizidou, Judgment of 18 December 1996 (Merits), [1996] ECHR Rep. 1996-VI, at 43 (cf. R. Lawson and H. G. Schermers, Leading Cases of the European Court of Human Rights (1999), at 544–5).

33 Seidermann, supra note 18, at 77–8.

34 Lawson, supra note 24, at 168–74.

35 Soering, supra note 16, at 88 (numbering and emphasis added).

36 D v. UK, Judgment of 2 May 1997, [1997] ECHR (Rep. 1997-III).

37 Ibid., at 49.

38 Ibid. (emphasis added).

39 Ibid., at 49–50 (emphasis added).

40 Chahal, supra note 6, at 76.

41 Ibid., at 80.

42 Ibid., at. 79; Saadi, supra note 1, at 127.

43 Ibid., at 138.

44 Ibid., at 64.

45 Art. 31(3)(a) VTC.

46 Soering, supra note 16, at 89 (emphasis added).

47 Chahal, supra note 6, at 81.

48 N v. UK, supra note 2, at 44.

49 E.g. Chassagnou and others v. France, Judgment of 29 April 1999, [1999] ECHR (Rep. 1999-III), at 113. In Öcalan v. Turkey, Judgment of 12 May 2005, [2005] ECHR (Rep. 2005-IV), at 88, the Grand Chamber explicitly referred to the consideration in Soering quoted above when addressing the question of whether Öcalan's arrest outside the territorial jurisdiction of Turkey was ‘lawful’ for the purposes of Art. 5.

50 Klass v. Germany, Judgment of 6 September 1978, [1978] ECHR (Ser. A 28), at 59.

51 Chassagnou, supra note 49, at 113.

52 Chahal, supra note 6, at 76.

53 Saadi, supra note 1, at 122.

54 Ibid., at 120.

55 Or rather, refused to do so; cf. Ärzte für das Leben v. Austria, Judgment of 21 June 1988, [1988] ECHR (Ser. A no. 139), at 31: ‘The Court does not have to develop a general theory of the positive obligations which may flow from the Convention’.

56 A. R. Mowbray, The Development of Positive Obligations under the European Convention on Human Rights by the European Court of Human Rights (2004), 2.

57 Gül v. Switzerland, Judgment of 19 February 1996, [1996] ECtHR (Rep. 1996-I), at 38; cf. R. A. Lawson, ‘Positieve verplichtingen onder het EVRM: opkomst en ondergang van de fair balance-test’, (1995) 20 NJCM-Bulletin 538.

58 Forder, C., ‘Positieve verplichtingen in het kader van het EVRM’, (1992) 17 NJCM-Bulletin 611.

59 C. Dröge, Positive Verpflichtungen der Staaten in der Europäischer Menschenrechtskonvention (2003).

60 N v. UK, supra note 2, at 42.

61 D v. UK, supra note 36, at 48.

62 Saadi, supra note 1, at 125, with references to numerous previous judgments.

63 Soering, supra note 16, at 91 (emphasis added); repeated in, inter alia, Askarov and Mamatkulov v. Turkey, Judgment (GC) of 4 February 2005, [2005] ECHR (Rep. 2005-I), at 67; Saadi, supra note 1, at 126.

64 Noll has stated that it follows from para. 86 in Soering that the Court based the prohibition of refoulement on the obligation ‘to secure’ in Art. 1 (Noll, supra note 17, at 396–7). Arguably, there is no need for assuming so: in the paragraph mentioned, the Court rather addressed the other element of Art. 1, the scope of the states’ ‘jurisdiction’: ‘Article 1 of the Convention . . . sets a limit, notably territorial, on the reach of the Convention. In particular, the engagement undertaken by a Contracting State is confined to “securing” [‘reconnaître’ in the French text] the listed rights and freedoms to persons within its own “jurisdiction”. Further, the Convention does not govern the actions of States not Parties to it, nor does it purport to be a means of requiring the Contracting States to impose Convention standards on other States.’

65 There is one exception: the Court based the obligation not to expel on the obligation ‘to secure’ in Art. 1 in its decision TI v. UK, Decision of 7 March 2000, [2000] ECHR (Rep. 2000-III). That case concerned the expulsion of a Tamil to Germany. The applicant feared that Germany would subsequently expel him to Sri Lanka, where he feared ill-treatment. The issue at stake therefore was not the expulsion to Germany as such (the normal prohibition of refoulement), but rather whether the United Kingdom had duly established that Germany afforded sufficient safeguards against chain refoulement to Sri Lanka.

66 It may further be noted that before Soering, in Abdulaziz (referred to in Soering, supra note 16, at 85, see above), the Court had already accepted positive obligations as regards migration issues. Furthermore, the European Commission on Human Rights based the prohibition of expulsion in Soering on Art. 1 (ECmHR 19 January 1989, at 94–9).

67 Lawson, supra note 24, at 242–3; Noll, supra note 17, at 470.

68 Cf. Lawson, supra note 24, at 213–14, 231–3, 243. Lawson's analysis is strongly concerned with a model for state responsibility for acts by international organizations; his argument builds on analogous application of Art. 11 of the ILC 1996 Draft Articles on State Responsibility, concerning state responsibility for conduct by individuals. That article has not been adopted in the final version of those Articles. This, however, does in itself not affect the validity of his interpretation of the principles for attribution of state responsibility in the case law of the Court.

69 Cf. A v. UK, Judgment of 23 September 1998, [1998] ECHR (Rep. 1998-VI).

70 Noll, supra note 17, at 467–73.

71 Cf. Bonger v. The Netherlands, Decision of 15 September 2005, [2005] ECHR (appl. no. 10154/04).

72 Paul and Audrey Edwards v. UK, Judgment of 14 March 2002, [2002] ECHR (Rep. 2002-II), at 55.

74 Jabari v. Turkey, Judgment of 11 July 2000, [2000] ECHR (Rep. 2000-VIII), at 37.

75 N v. UK, supra note 2, at 44.

76 Soering, supra note 16, at 90.

77 Ibid., at 87.

78 Paul and Audrey Edwards v. UK, supra note 72, at 55.

79 Jabari, supra note 74, at 39.

80 Vilvarajah and others v. UK, Judgment of 30 October 1991, [1991] ECHR (Ser. A215), at 108.

81 Hilal v. UK, Judgment of 6 March 2001, [2001] ECHR (Rep. 2001-II), at 75.

82 Aksoy v. Turkey, Judgment of 18 December 1996, [1996] ECHR (Rep. 1996-VI), at 98; Hilal, supra note 81 at. 75.

83 D v. UK, supra note 36, at 6.

84 Ibid., at 46–7.

85 Arts. 32 and 33 RC differ, as the former applies only to refugees who are ‘lawfully present’, and the latter to all refugees, i.e. to all persons who fulfil the conditions of Art. 1 RC, also if their presence is not yet or no longer lawful.

86 Saadi, supra note 1, at 138.

87 Ibid., at 120. That the Refugee Convention serves the purpose of defining claims to asylum can indeed be derived from inter alia the Preamble of the instrument; see Battjes, supra note 5, at 62–3.

88 Saadi, supra note 1, at 122.

89 Ibid., at 121–2.

90 Ibid., at 140.

91 Ibid., at 143.

92 Ibid., at 139.

94 Soering, supra note 16, at 88.

95 Ibid., at 91.

96 Osman v. UK, Judgment of 28 October 1998, [1998] ECHR (Rep. 1998-VIII), at 116.

97 Vilvarajah, supra note 80, at 111.

98 Shamayev and others v. Georgia and Russia, Judgment of 12 April 2005, [2005] ECHR (Rep. 2005-III), at 338; Grabayev v. Russia, Judgment of 7 June 2007, [2007] ECHR (appl. no. 38411/02), at 76.

99 P. Van Dijk et al., Theory and Practice of the European Convention on Human Rights (2005), 410 ff.

100 Cruz Varas v. Sweden, Judgment of 20 March 2001, [2001] ECHR (Ser. A210), at 76, referred to in Shamayev, supra note 98, at 337.

101 J. Vedsted-Hansen, ‘The Borderline between Questions of Law and Questions of Fact’, in G. Noll (ed.), Proof, Evidentiary Assessment and Credibility in Asylum Procedures (2005), 57f.

102 Ibid., at 438, n.190.

103 Soering, supra note 16, at 98.

104 NA v. UK, Judgment of 17 July 2008, [2008] ECHR (appl. no. 25094/07), at 111.

105 Saadi, supra note 1, at 140.

106 N v. UK, supra note 2, at 43.

107 Ibid., at 42.

108 Ibid., at 47.

109 Ibid., at 50.

110 Z and T v. UK, Decision of 28 February 2006, [2006] ECHR (appl. no. 27034/05) (emphasis added).

111 Saadi, supra note 1, at 140.

112 N v. UK, supra note 2, at 43.

113 Soering, supra note 16, at 111.

114 See Van Dijk et al., supra note 99, at 406–12, with references to case law.

115 Saadi, supra note 1, at 134; Jalloh v. Germany, Judgment of 11 July 2006, [2006] ECHR (appl.no. 54810/00), at 67.

116 Mubilanzila Mayeka and Kaniki Mitunga, Judgment of 12 October 2006, [2006] ECHR (appl. no. 13178/03), at 55 and 58.

117 Saadi, supra note 1, at 135.

118 Jalloh, supra note 115, at 69.

119 Ibid., at 76 (emphasis added).

120 Tyrer v. UK, Judgment of 25 April 1978, [1978] ECHR (Ser. A.26), at 33.

121 P. H. van Kempen, ‘Jalloh t. Duitsland’, (2007) 32 NJCM Bulletin 354, at 365–6, author's translation.

122 Cf. Ireland v. UK, supra note 11, at 167: ‘[the distinction between torture and inhuman or degrading treatment] derives principally from a difference in the intensity of the suffering inflicted . . . it was the intention that the Convention, with its distinction between “torture” and “inhuman or degrading treatment”, should by the first of these terms attach a special stigma to deliberate inhuman treatment causing very serious and cruel suffering’.

123 Messina v. Italy, Decision of 8 June 1999, [1999] ECHR (Rep. 1995-V).

124 Saadi, supra note 1, at 138.

125 Assembly Docs. 1949, 77, at 204 and Doc. A.290 at 12, as quoted by the European Commission on Human Rights in its ‘Memorandum on Article 3 ECHR’, DH(56)5, of 22 May 1956, 2, available at www.echr.coe.int/Library/COLENTravauxprep.html (last visited 20 April 2008).

126 CR 1949, at 1178–80, as rendered by the EComHR in DH (56)5, at 5 f. (see previous note).

127 Ibid., at 9.

128 Ibid., at 12.

129 Ibid.

130 Ibid., at 14–18.

131 Manickavasagam Suresh v. Canada (Minister of Citizenship and Immigration), 2002 SCC 1. File No. 27790.

132 CAT, Bachan Singh Sogi v. Canada, 279/2006, para. 10.2; HRC State report, ICCPR/C/CAN/2004/5.

133 For example, the Human Rights Committee in its General Comment 7 addresses several types of ill-treatment, including ‘excessive chastisement as an educational or disciplinary measure’. It appears that chastisement is allowed if it is legitimized by its aim as an educational or disciplinary measure, and if its is proportionate to it, i.e. not ‘excessive’ (General Comment 7, Sixteenth session, 1982, ‘Article 7: Torture or Cruel, Inhuman or Degrading Treatment or Punishment’, A/37/40 (1982) 94).

* Assistant professor of constitutional and administrative law at the law faculty of VU University, Amsterdam. I thank Thomas Spijkerboer and Sarah van Walsum for their helpful comments on an earlier draft of this paper.

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