1. See Heffernan, L., “A Comparative View of Individual Petition Procedures under the European Convention on Human Rights and the International Covenant on Civil and Political Rights” (1997) 19 H.R.Q. 78–112, at p.112.Google Scholar

2. Recommendation 434 “Concerning the granting of the right of asylum to European refugees”.

3. 15 Nov. 1996, Reports of Judg. and Dec. (1996–V) No.22, para.80.Google Scholar

4. See Wiederkehr, M.-O., “L'oeuvre du Conseil de l'Europe dans le domaine du droit de l'asile et des réfugiés”, paper presented at the Colloque de la Société Française pour le Droit International (1996), pp.12–13 (unpublished).Google Scholar

5. Chahal v. United Kingdom, supra n.3. D. v. United Kingdom, 2 05 1997Google Scholar, Reports of Judg. and Dec. (1997–III) No.37.Google Scholar

6. Soering v. United Kingdom, 7 07 1989 Ser. A, No.161.Google Scholar

7. On 1 Jan. 1998, the European Convention was binding on 39 European States, all of which had recognised the right of individual petition under Art.25 and the jurisdiction of the Court under Art.46. The Refugee Convention was binding on 131 States, including all the signatories to the European Convention with the exception of Andorra and San Marino. The Torture Convention was binding on 103 States, including all the signatories to the European Convention except four, i.e. Andorra, Belgium, Ireland and San Marino. Of these 35 States, Albania, Estonia, Germany, Latvia, Lithuania, Macedonia, Moldova, Romania, the UK and Ukraine had not recognised the competence of the Torture Committee to receive individuals' complaints. The Political Covenant was binding on 140 States, including all the signatories to the European Convention, except three, i.e. Andorra, Liechtenstein and Turkey. Of these 36 States, Albania, Switzerland and the UK are not a party to the Optional Protocol.

8. Provisions relating to the right to life, unlawful detention, family life, education, freedom of association and expression, though relevant to the issue of expulsion of asylum-seekers, remain outside the scope of this article. For reasons of space, this article focuses exclusively on refoulement from Europe. The right to family life is explored in Lambert, H., “The European Court of Human Rights and the Right of Refugees and Other Persons in Need of Protection to Family Reunion” (1999) I J.R.L. (07, Vol. 11, No.3).Google Scholar On unlawful detention see Giakoumopoulos, C., “Detention of Asylum Seekers in the Light of Article 5 of the European Convention on Human Rights”, in Hughes, J. and Liebaut, F. (Eds), Detention of Asylum Seekers in Europe: Analysis and Perspectives (1998), pp.161–182.Google Scholar

9. Given space constraints, it does not offer a systematic treatment of the application of the Refugee Convention in European States. For such a treatment, See Lambert, H., Seeking Asylum: Comparative Law and Practice in Selected European Countries (1995).Google Scholar

10. See, in particular, the excellent study by Suntinger, W., “The Principle of NonRefoulement: Looking Rather to Geneva than to Strasbourg” (1995) 49 Austrian J. Pub.Int.L. 203–225. Protocol XI entered into force on 1 Nov. 1998.Google Scholar

11. Apart from Suntinger's article (ibid), interesting comparative elements may be found in two other articles, Heffernan, , op. cit. supra n.1, at pp.78–112Google Scholar, and Andrysek, O., “Gaps in International Protection and the Potential for Redress through Individual Complaints Procedures” (1997) 9 I.J.R.L. 392–414.Google Scholar Among the vast literature on individual instruments, see in particular the works by Nowak, M., UN Covenant on Civil and Political Rights—CCPR Commentary (1993)Google Scholar, McGoldrick, D., The Human Rights Committee: Its Role in the Development of the ICCPR (1991)Google Scholar, Goodwin-Gill, G., The Refugee in International Law (1996)Google Scholar, and Steiner, and Alston, , International Human Rights in Context (1996).Google Scholar

12. 189 U.N.T.S. 150 and UNGA Res.39/46 of 10 12 1984, respectively.Google Scholar

13. UNGA Res.2200 A (XXI) and E.T.S. No.5, respectively. Outside the scope of these provisions, the expulsion of a refugee lawfully in a territory is explicitly prohibited by Art.32 of the Refugee Convention and Art.13 of the Political Covenant. In addition, Art.4, Protocol 4 to the European Convention prohibits the collective expulsion of aliens. As for refugees unlawfully in a territory, they are covered by Art.31 of the Refugee Convention (as far as penalties, not including expulsion, are concerned) and Art.33 (as far as refoulement is concerned).

14. In Ahmed v. Austria (17 Dec. 1996, Reports of Judg. and Dec. (1996–VI) No.26)Google Scholar, the E.Ct.H.R. considered that it was not competent to ask Austria to grant Mr Ahmed a residence permit (the Torture Committee made a similar statement in P.L.Q. v. Canada, Communication No.57/1996, 17 11 1997Google Scholar). Following the Court's judgment, Austria refused to grant Ahmed a residence permit, thereby denying him the right to work (he committed suicide on 15 Mar. 1998). See also the separate opinion of Mr Cabral Barreto to the European Commission of H.R.'s report on the case B.B. v. France, Application No.30930/96, 9 03 1998), in which he explains that, as far as he is concerned, an alien who is “forced” to live in a country without any “protection soriale”, would be facing treatment contrary to Art.3.Google Scholar

15. It is nevertheless subject to no reservation (Art.42).

16. There are still doubts as to whether or not terrorist activities constitute “acts contrary to the purposes and principles of the UN” under Art.1F(b), despite the large support recently given to the view that such activities may give rise to actions based on Chapter VII of the Charter (See Shaw, M. N., International Law (1997) pp.805–806Google Scholar). Serious questions also arise concerning the political or non-political character of terrorist activities (McMullen v. I.N.S. 788 F.2d 591, 597 (U.S.C.A., 9th Cir. 1986)).Google Scholar In the UK the House of Lords ruled that Art.1F(b) applied to an asylum-seeker, Mr Tilmatine, allegedly found guilty of a terrorist attack in Algeria, his country of origin, thereby recognising the non-political character of terrorist activities (T. v. Secretary of State for the Home Department [1996] 2 All E.R. 865).Google Scholar In Canada, however, the Supreme Court decided that in the absence of any indication in international law designating drug trafficking as an act contrary to the purposes and principles of the UN, drug trafficking cannot amount to an exclusion clause (Migration News Sheet, 06 1997, p.7).Google Scholar

17. Art.15(2) and Art.4(2), respectively.

18. The Court explicitly stated that “the Convention prohibits in absolute terms torture and inhuman or degrading treatment or punishment, irrespective of the victim's conduct”. If further held that “Article 3 makes no provision for exception… there can be no derogation therefrom even in the event of a public emergency threatening the life of the nation” ((1978) 25 E.Ct.H.R., Ser.A, para.65).Google Scholar

19. Supra n.3.

20. Arts.2 and 3. Mutombo v. Switzerland, Communication No.13/1993, 27 04 1994.Google Scholar

21. Preamble to the Refugee Convention and Art.35 and 36 of the Convention.

22. Art.52 (old Art.57), European Convention. The creation of the Secretary General's Monitoring Unit of the Council of Europe reveals the concern of the institution for improving the supervision of the compliance by the member States with their commitments under the Convention.

23. The Court could nevertheless, in exceptional circumstances, use its powers to review the facts established by the Commission (Cruz Varas v. Sweden, 20 03 1991, Ser. A, No.201).Google Scholar

24. Arts.33–34 (old Arts.24–25), European Convention. The new Court was inaugurated on 3 11 1998.Google Scholar The Committee of Ministers will continue to fulfil its supervision role (Art.46, old Art.54).

25. Committees are not courts; they are of a non-judicial character and, therefore, they do not issue judgments but views which have no legal but, rather, moral authority. Michael O'Flaherty nevertheless notes that “since 1994, the [Human Rights] Committee has implicitly suggested in its Views on individual communications that the decisions of the Committee are of a binding nature” (See O'Flaherty, , Human Rights and the UN—Practice Before the Treaty Bodies (1996), p.47, n.68Google Scholar). McGoldrick's assessment of the Human Rights Committee's work on Art.7, however, is highly critical. He describes the final views of the Committee as “often unhelpful, incomprehensible, or ambiguous” and goes as far as accusing the Committee of “arbitrariness in its findings”. He notices the lack of co-operation between States, which persist in violating Art.7, and the Committee, and the lack of publicity of the Committee's views. He recognises that there is as yet no proof that States are following the Committee's recommendations. Finally, he concludes by stating that the views of the Committee “have only been of marginal significance in terms of effective human rights protection” (See McGoldrick, , op. cit supra n.11, at p.381).Google Scholar

26. Art.46 (old Arts.46 and 54), European Convention. This is not the case, however, for reports adopted by the Commission or decisions adopted by the Committee of Ministers where the case is not referred to the Court (old Art.32).

27. See Andrysek, , op. cit. supra n.11, at pp.402–414.Google Scholar

28. Rule of Procedure 95 of the Human Rights Committee.

29. Recommendation No.R(84)1 relating to the Protection of Persons who Fulfils the Condition of the Geneva Convention but Who are not Formally Recognized as Refugees nevertheless provides that the principle of non-refoulement applies to all persons who have a well-founded fear of persecution, whether or not a person has been recognised as a refugee.

30. EXCOM of the UNHCR, Standing Committee, 8th meeting, EC/47/SC/CRP.28, 5.Google Scholar Note also the emergence of the “Dublin principle” according to which the first “safe country” is no longer the EU country an asylum-seeker reaches first, but the EU country in which he or she first applies for asylum (Art.7, Dublin Convention): (1997) O.J. C254/1.Google Scholar

31. See e.g. in the UK, R. v. Immigration Appeal Authority, ex p. B [1989] Imm. A.R. 166.Google Scholar This view was rejected in M. v. Secretary of State for the Home Department [1996] 1 All E.R. 870.Google ScholarAnd in New Zealand, Refugee Appeal No.2254/94 Re HB, 21 09 1994.Google Scholar

32. Chahal, supra n.3, at para.79. Paez v. Sweden (Communication No.39/1996, 7 05 1997)Google Scholar was recently decided by the Torture Committee in the same way as Chahal. Requirements with regards to the applicant under the Political Covenant are broadly similar to those under the European Convention. See Heffeman, , op. cit. supra n.1, at p. 104.Google Scholar

33. E.g. Chahal, idem (rejected asylum-seeker and alleged terrorist); D. v. United Kingdom, supra n.5 (drug smuggler).

34. According to Suntinger, “By the end of 1996, [the Committee against Torture] had decided 6 refoulement cases on the merits, findingviolations of Art.3 CAT in five of these, and declared another ten cases inadmissible. At the April/May 1997 session, five more decisions on the merits were taken, with violations of Art.3 found in three cases. One communication was declared inadmissible”: “The prohibition of refoulement: the significance of Art J of the UN Convention against Torture”, paper presented at the ELENA course, 1997 (unpublished).

35. The Commission found a violation of Art.3 in an expulsion case for the first time in 1994 (M.N. v. France, Application No.19465/92). Since then, other such cases include Bahaddar v. The Netherlands (Application No.25894/94) where the Commission found a violation of Art 3 if the applicant were to be expelled to Bangladesh (this decision was, however, overturned by the E.Ct.H.R. on the ground that not all domestic remedies had been exhausted, 19 Feb. 1998, Reports of Judg. and Dec. (1998–I) No.64)Google Scholar, Hatami v. Sweden (Application No.32448.96), and B.B. v. France (supra n.14). Several cases have been rejected by the Commission on the grounds of lack of sufficient evidence showing that the applicant would face a “real risk” if returned (e.g. Altun v. FRG, No.10308/83, Kozlov v. Finland, No.16832/90, and A. and F.B.K. v. Turkey, No.14401/88). In a number of cases, however, a friendly settlement was reached before the Commission adopted a decision on admissibility.

36. In comparison with the Torture Committee or the Strasbourg organs, the Human Rights Committee has dealt with very few expulsion cases. More specifically, it reached views only in cases of expulsion alleging a violation of Art.9 (detention), Art.13 (expulsion of an alien lawfully in the country) and Art. 14 (due process and fair trial); Maroufidou v. Sweden, Communication No.58/1979Google Scholar, and A v. Australia, Communication No.560/1993.Google Scholar So far, every single petition based on Art.7 has been declared inadmissible (V.M.R.B. v. Canada, Communication No.236/1987Google Scholar, and Stewart v. Canada, Communication No.538/1993Google Scholar). Views are nevertheless awaited in L v. Canada, Communication No.621/1995Google Scholar, C. v. Canada, Communication No.558/1993Google Scholar, and B v. Canada Communication No.622/1995.Google Scholar

37. The Refugee Convention is outside the scope of this section. Its operation depends upon the decision of the competent national authorities. A whole range of admissibility devices, of a jurisdictional and substantive nature, have been developed by European States in order to introduce a presumption of inadmissibility and justify the recourse to accelerated procedures in cases which do not satisfy these requirements. These “exception” cases include, in particular, “safe third country” cases, “manifestly unfounded” claims and “safe country of origin” cases. For instance, in the UK, out of 28, 945 refused asylum applications in 1997 (excluding dependants), 6, 161 were rejected outright on “safe third country” and “non-compliance” grounds (Home Office Statistical Bulletin, Asylum Statistics United Kingdom 1997, Issue 14/98, Table 1.3).

38. In Cruz Varas v. Sweden, supra n.23, the European Court found that the right of petition had been obstructed by an expulsion order being carried out.

39. This six-month period runs from “service of the written text of the judgment” (Worm v. Austria, Application No.22714/93).

40. The Torture Convention is silent on this point, and one may find that, by extrapolation, the same rule would apply.

41. Before 1 Nov. 1998, an individual, a group of individuals or NGOs could only bring a case to the Court if they had lodged a complaint to the Commission, if the respondent State had ratified Protocol IX of the European Convention, and if their case had been screened by a special panel (Protocol IX, Art.5). Under Protocol XI, all applicants have direct access to the new Court.

42. The presence of the UNHCR (i.e. an IGO) in Strasbourg demonstrates the pressing need in having the Strasbourg organs working closer with the UNHCR but also with NGOs. Their involvement in the European system of protection of human rights should be of great value considering their experience in human rights protection.

43. The applicant must show that he or she runs the risk of being affected by the law. Refer to Klass v. Germany (1978, Ser. A, No.28)Google Scholar, Marckx v. Belgium (1979, Ser. A, No.31 )Google Scholar and, Kirkwood v. United Kingdom (1984).Google Scholar

44. Madureira, J., “The Conditions of Foreigners”, Council of Europe, Demo MM4(94)30, p.26, n.80.Google ScholarFor instance, in Vijayanathan and Pusparajah v. France (27 08 1992, Ser. A, No.241–B)Google Scholar, the Court refused to recognise the quality of “victim” in the applicant because no enforceable order of expulsion had yet been issued.

45. For instance, in M'B v. Tunisia (UN Doc. A/50/44, Annex V), the Committee declared inadmissible a communication brought by a person on behalf of a dead victim on the ground that this third party was unable to provide “sufficient proof to establish his authority to act on behalf of the victim”.

46. E.W. et al. v. Netherlands, Communication No.429/1990.Google Scholar

47. Communication No.470/1991, para.13.2.Google Scholar

48. Quinteros v. Uruguay, Communication No.107/1981, para.14.Google Scholar

49. Rule 90(b) of the Rules of Procedure, CCPR/C/3/Rev.4.

50. For instance, in X. v. Spain (Communication No.23/1995)Google Scholar, the Torture Committee declared the communication inadmissible because it had “not been sufficiently justified”. The author had failed to show serious grounds for believing that he risked being tortured if expelled to Algeria; there was no indication that he had previously been detained or tortured but, rather, a statement that he intended to seek work. And in Lang v. Australia (Communication No.659/1995), the Human Rights Committee stated that “sweeping allegations” which “do not in any way reveal how the author's rights under the Covenant might have been violated” are insufficient.Google Scholar

51. Art.1, Optional Protocol and Art.2(1), Political Covenant. Amerasinghe interpreted both provisions to mean that the Covenant should apply only in respect of persons within the territory as well as subject to the jurisdiction of the State. See Amerasinghe, C. F., Local Remedies in International Law (1990), pp.147–149.Google Scholar This view was not shared by Meron, who argued that “Most of the provisions of the Refugee Convention, in contrast to those of the Political Covenant, may be primarily territorial in character, in the sense that they apply to claimants who have reached the soil of the state of asylum” and concluded that a narrow territorial construction must be excluded. See Meron, T., “Extraterritoriality of Human Rights Treaties” (1995) 89 A.J.I.L. 81.Google Scholar

52. In D. v. United Kingdom, supra n.5, at para.48, the E.Ct.H.R. explained that even if the applicant never entered the UK in the technical sense, he had been within the jurisdiction of the UK, in custody, at Gatwick airport. Thus, for the Court, it was sufficient that “he had been physically present there”.

53. Supra n.6.

54. E.g. Chahal, supra n 3.

55. E.g. Mutombo, supra n.20.

56. The principle was first held in Kindler v. Canada, supra n.47. It was reiterated in Ng v. Canada, Communication No.469/1991Google Scholar, and Cox v. Canada, Communication No.539/1993.Google Scholar However, a violation of Art.7 of the Covenant was found in only one case, Ng v. Canada (ibid).

57. Interhandel Case, I.C.J. Rep. 1959, 27.Google Scholar

58. Art.41(1)c, Political Covenant and Art.5(2)b, First Optional Protocol; Art.35(1) (old Art.26), European Convention; and Art.22(5)b, Torture Convention. See also Amerasinghe, op. cit. supra n.51, at pp.86–88.Google Scholar If a State chooses to dispute the exhaustion of local remedies, the burden of proof falls on it to offer substantiating evidence to support its argument.

59. In Halimi-Nedzibi v. Austria, Communication No.8/1991, the Torture Committee held that a delay of 15 months may be considered unreasonably prolonged.

60. In Golder v. United Kingdom (21 02 1975, Ser. A, No.18) “remedy” was found to be wider under art.13 than under Art.26 (now Art.35(1)).Google Scholar However, in a quite unprecedented ruling, the E.Ct.H.R. refused to consider the merits of an application lodged by a rejected asylum-seeker (Mr Bahaddar) on the ground that his application had failed to exhaust all national remedies, in spite of the findings by the Commission that his expulsion would constitute a violation of Art.3 of the Convention (1902 1998, supra n.35).Google Scholar

61. M. v. United Kingdom, Application No.12268/86. The application was declared inadmissible on the grounds that national remedies had not been exhausted.

62. See Madureira, , op. cit. supra n.44, at p.26, n.81.Google Scholar

63. See Nowak, , op. cit. supra n.11, at p.704Google Scholar, and Harris, , Boyle, and Warbrick, , Law of the European Convention on Human Rights (1995), pp.608–621.Google Scholar

64. P.M.P.K. v. Sweden, Communication No.30/1995Google Scholar, and K.K.H. v. Canada, Communication No.35/1995.Google Scholar

65. N.D. v. France, Communication No.32/1995.Google Scholar

66. Harris, et al. , op. cit. supra n.63, at p.621.Google Scholar There is some inconsistency, however, in the case law of the E.Ct.H.R., as highlighted in Bahaddar v. The Netherlands (Application No.25894/94). In this case, the European Commission unanimously interpreted broadly the plea of “special circumstances” in order to absolve the applicant from exhausting domestic remedies at his disposal (13 08 1996).Google ScholarThe Court adopted a more restrictive view, ruling (19 02 1998, supra, n.35)Google Scholar that it would not consider the merits of the case because local remedies had not been exhausted (the applicant had failed to convince the Court that failure to submit grounds of appeal within the time limit was due to the unavailability of documentary evidence). This “excessive formalism” was strongly criticised by some of the dissenting judges as potentially undermining the absolute character of the prohibition provided in Art.3.

67. According to a “jurisprudence constante”, in cases of the death sentence, a constitutional motion may not constitute an available remedy in the absence of legal aid (Graham and Morrison v. Jamaica, Communication No.461/1991).Google Scholar

68. In particular, he refers to Communications 173, 175/1984 declared inadmissible on the grounds of non-substantiation of allegations or lack of claim. See Nowak, , op. cit. supra n.11, at pp.137, 705.Google Scholar

69. E.g. Clacerrada Fornieles et al. v. Spain (Application No.1751/90) declared inadmissible by the European Commission on the ground that substantially the same matter was being considered by the Human Rights Committee.

70. See Nowak, , op. cit. supra n.11, at p.698.Google Scholar

71. This is the case, for instance, of the reservations entered by France and Spain (Valentijn v. France, Communication No.584/1994Google Scholar; V.E.M. v. Spain, Communication No.467/1991Google Scholar). See Nowak, idem, p.700.

72. Estrella v. Uruguay, Communication No.74/1980 (Human Rights Committee); Mutombo, supra n.20 (Torture Committee).Google Scholar

73. See O'Flaherty, , op. cit. supra n.25, at pp.48, 158.Google Scholar

74. See Janis, M. et al. , European Human Rights Law—Text and Materials (1995), p.92.Google Scholar It is further argued that the reform of the procedure following the entry into force of Protocol XI “should of itself shorten the length of proceedings by some 18 months to two years”: idem, p.93. Also under the XIth Protocol procedure, the new Court has the opportunity to act promptly and with authority (Ocalan v. Turkey, judgment of 22 02 1999).Google Scholar

75. The term “indicate” was given preference over the term “request” to avoid any possible doubts on whether or not the Human Rights Committee, and by analogy the Torture Committee or the European Commission, could reasonably perform “implied powers” provided in the Rules of Procedure but not in the text of the treaty. See McGoldrick, , op. cit. supra n.11, at p.131.Google Scholar

76. See Harris, et al. , op. cit. supra n.63, at p.590.Google Scholar

77. This was confirmed by the E.Ct.H.R. in Cruz Varas, supra n.23, where the Court described the general practice of States as a mere illustration of “good faith compliance”. See Harris et al., ibid.

78. Mansi v. Sweden (Application No.15658/89) and Cruz Varas (ibid), both cases decided by the Strasbourg organs. See also Nun¯ez v. Venezuela (Communication No.110/1998)Google Scholar decided by the Torture Committee, and the Ashby case in which the Human Rights Committee vainly requested Trinidad and Tobago to suspend the execution of the applicant until a decision on the case had been reached by the Committee ( 1994 Report of the Human Rights Committee, A/49/40, pp.70–71).Google Scholar

79. E.g. Soering, supra n.6, Mutombo, supra n.20, and Khan v. Canada (Communication No.15/1994).Google Scholar The prompt compliance by a State depends very much on the power of persuasion of the authority indicating the measures that they are both necessary and desirable.

80. See O'Flaherty, , op. cit. supra n.25, at pp.47, 158.Google ScholarIt has been found that it costs an average of £30,000 to get an action into the E.Ct.H.R.: (1998) 68 B.Y.I.L. 508.Google Scholar

81. Mansi, supra n.78. Nevertheless in Ahmed (supra n.14) the Court ruled that Ahmed's repatriation would constitute a violation of Art.3 but denied his request for financial compensation on the ground that the judgment constituted sufficient just satisfaction. In view of the fact that Ahmed was refused a residence permit and denied the right to work, and as a result committed suicide, this raises the difficult issue of “just satisfaction” in the context of degrading treatment following a successful application on the ground of Art.3, an issue that the Court has not yet been willing to address.

82. Bautista v. Columbia, Communication No.563/1993, paras.8.6 and 10.Google ScholarSee Heffernan, , op. cit. supra n.1, at p.110.Google Scholar

83. The words “where his life or freedom would be threatened” are considered to have the same meaning as “well-founded fear of persecution” in Art.1A(2) of the Refugee Convention. See Weis, P. (Ed.), The Refugee Convention, 1951 (1995), p.341.Google Scholar

84. Many rejected applicants for the status of refugee are allowed to remain at least temporarily. For instance, in 1997, out of 36,045 first-instance decisions taken in the UK (excluding dependants), 3,985 (11%) recognised refugee status, 3,115 (9%) did not recognise refugee status but granted exceptional leave to remain and 28,945 (80%) refused asylum and exceptional leave. In addition, the British government has allowed groups of people to remain on an exceptional basis, without applying for asylum (e.g. former Yugoslavs). Home Office Statistical Bulletin, op. cit. supra n.37, at Table 1.2 and explanatory note 13.

85. The practice of the Human Rights Committee, although resembling that of the European Court on which it is based, seems, however, less consistent. See McGoldrick, , op. cit supra n.11, at pp.368–371.Google Scholar

86. In terms of protection against ill-treatment in the event of an expulsion, it does not really matter whether Art.3 (European Convention) or Art.7 (Political Covenant) applies on the basis of torture or degrading treatment, except perhaps that the Court or Committee will be more sympathetic towards a case where torture or death is at stake. Outside expulsion cases, the difference between torture and degrading treatment is mainly relevant for the E.Ct.H.R. in matters of compensation because the treatment has already occurred.

87. As observed by Nowak, op. cit. supra n.11, at p.135Google Scholar, the Human Rights Committee does not usually differentiate between categories of treatment and prefers referring to wider terms such as “severe treatment” or “ill-treatment”, a satisfactory solution in practice as long as the treatment falls into the scope of Art.7.

88. Ahmed, supra n.14, H.L.R. v. France, 29 04 1997Google Scholar, Reports of Judg. and Dec. (1997–III) No.36.Google Scholar In D. v. United Kingdom, supra n.5, the Court stressed the “very exceptional circumstances” and the “compelling humanitarian considerations at stake”. See also B.B. v. France (supra n.14) where the Commission reported that confronting alone an illness such as AIDS at an advanced stage would constitute degrading treatment. However, it rejected a similar claim because the illness of the applicant was not yet in an advanced stage (Karara v. United Kingdom, Application No.40900/98).

89. Arts.3 and 16. Voyame, J., “La Convention des Nations Unies contre la torture”, in Cassesse, A. (Ed.), The International Fight Against Torture (1991), p.49.Google Scholar

90. Art.1, Torture Convention. Only torture is prohibited in absolute terms (Art.2(2), (3)). See Boulesbaa, A., “The Nature of the Obligations Incurred by States under Article 2 of the UN Convention Against Torture” (1990) 12 H.R.Q. 53–93.Google Scholar

91. The attitude of the European Court, however, lacks consistency on this matter. In Ireland v. United Kingdom (supra n.18), it seemed to suggest that the suffering needs to be caused intentionally and for a purpose in order to be regarded as torture, but not with regard to other ill-treatment, whereas, in Abdulaziz, Cabales and Balkandali v. United Kingdom (28 05 1985, Ser. A, No.94)Google Scholar intent seemed to be necessary in order to have degrading treatment.

92. There are as yet no views on this issue and one hopes that the Torture Committee will not follow the precedent set by the E.Ct.H.R. in Ireland v. United Kingdom. See Suntinger, op. cit. supra n.10, at section IV.

93. Art.1.

94. Voyame, (op. cit. supra n.89, at p.46)Google Scholar, in particular, refers to certain practices (e.g. sexual mutilation and prolonged detention) rooted in the law of countries and raises the question of their legality under the Convention. He concludes by recognising the delicate character of the matter and by acknowledging that the Committee will have to deal with this. He also highlights problems related to customs and religions, to the country's lack of resources resulting in an emphasis on services such as education or health to the detriment of other sectors, e.g. prisons. The recent case of P.L.Q. v. Canada (supra n.14) nevertheless suggests that the Torture Committee chose to refer to the domestic legal system of the state in question.

95. See Joint Position defined by the Council of the European Union on the harmonised application of the definition of the term “refugee” in Art.1 of the Refugee Convention. See also the position recently taken by the UK (no refugee status but exceptional leave to remain granted to people fleeing the civil war in Somalia, R. v. Secretary of State for the Home Department, ex p. Adan, 2 Apr. 1998 (HL) (1998) 37 I.L.M. 1090)Google Scholar, Germany (no refugee status and no protection against deportation for civil war refugees from Somalia, B Verwg, 15 Apr. 1997, 9 C 15.96 and 9 C 38.96; the key factor seems to be the risk of persecution from State-like organisations in all regions of the State in question, i.e. Afghanistan, BVerwg, 4 Nov. 1997, 9 C 34.94) and the Netherlands (well-founded fear of persecution may exist in a case where no central or de facto government exists, District Court of The Hague, 27 Aug. 1998, AWB 98/3068).

96. In its General Comment on Art.7 of the Political Covenant, the Human Rights Committee recognised that “it is the duty of public authorities to ensure protection by the law against such treatment even when committed by persons acting outside or without any official authority”. See also, Johnson v. Jamaica (Communication No.588/1994)Google Scholar, Chaplin v. Jamaica (Communication No.596/1994)Google Scholar, and Stephens v. Jamaica (Communication No.373/1989).Google Scholar

97. In both Soering (supra n.6) and Vilvarajah v. United Kingdom (30 10 1991, Ser. A, No.215), the Court required that certain conditions be met.Google Scholar In Chahal (supra n.3), risk of ill-treatment was not coming from the State but from other factions. In Ahmed (supra n.14), the Court, by recognising a violation of Art.3 in spite of the lack of State authority in Somalia, indirectly supported the view taken by the UNHCR that protection should be given irrespective of whether the lack of national protection against persecution can be attributed to a positive intention to harm on the part of the State. But the principle that agents of persecution may either be public officials or private individuals, provided the risk is real and State authorities are unable to provide protection or alleviate the risk, was held only in H.L.R. v. France (supra n.88, at para.40). And this principle was enlarged, in D. v. United Kingdom (supra n.5, at para.49) to cases where the risk of ill-treatment emanating from the public authority or private group is not even intentionally inflicted, and “cannot therefore engage either directly or indirectly the responsibility of the public authorities of that country”.

98. G.R.B. v. Sweden, Communication No.83/1997.Google Scholar

99. UNHCR Handbook, paras.45, 41, 196.Google Scholar

100. The requirement for “substantial grounds” means that expulsion, extradition or deportation per se do not in normal circumstances amount to ill-treatment or punishment; there need to be “certain circumstances” for Art.3 of the European Convention, Art.7 of the Political Covenant, or Art.3 of the Torture Covenant to become relevant.

101. The point of time to assess the risk is the situation when refoulement is taking place.

102. This is often an impossible task to do without recourse to NGOs. The role of NGOs in this respect could be emphasised and formalised.

103. Nevertheless, the Human Rights Committee has come to recognise that the burden of proof does not rest alone on the author of the application but, rather, that it must be shared between the author and the State against which the application is brought. See McGoldrick, , op. cit. supra n.11, at p.149.Google Scholar

104. See Goodwin-Gill, , op. cit. supra n.11, at pp.349–352.Google Scholar

105. The facts put forward by the asylum-seeker in his or her testimony should describe a truthful set of events (e.g. torture, detention or discrimination) and establish a credible link between these events and himself or herself as an individual. In the UK the Court of Appeal, while deciding that a fraudulent claim based on false facts may not deprive an asylum-seeker from the protection of the Refugee Convention, nevertheless recognised that the asylum-seeker would be devoid of any credibility and would therefore be unlikely to prove to the required standard a genuine subjective fear of persecution: M. v. Secretary of Slate for the Home Department [1996] 1 All E.R. 870.Google Scholar

106. This is quite a restrictive test because, according to this standard, a fact is proved only if its existence is “more likely than not”. So, persecution would be relevant only if the chances that it will take place are larger than 50%. See Marx, R., “The Criteria for Determining Refugee Status in the Federal Republic of Germany” (1992) 4 I.J.R.L. 165Google Scholar, and Art.12a of the Swiss Asylum Law 1979, as amended.

107. R. v. Secretary of State for the Home Department, ex p. Sivakumaran [1988] 1 All E.R. 193.Google Scholar Lord Keith of Kintel considered the notions “reasonable chance” and “serious possibility” as appropriate expressions of the degree of likelihood to be satisfied for a fear of persecution to be well-founded.

108. Before the European Commission, Hatami (supra n.35), Raguz v. Austria (Application 26300/95). Before the Torture Committee, Communications Nos.39/1996, 41/1996, 43/1996, 89/1997, 101/1997, 88/1997. Note, however, that since the entry into force of the new Aliens Act 1997, a distinction has been introduced between cases involving victims of torture (where complete accuracy is no longer required) and other cases.

109. UNHCR Handbook, para. 196.

110. See Goodwin-Gill, , op. cit. supra n.11, at p.352Google Scholar, and Hathaway, J., The Law of Refugee Status (1991), p.81.Google Scholar

111. See Goodwin-Gill, idem, pp.76–77. E.g. in the UK the Court of Appeal decided that in order to be granted refugee status, an asylum-seeker must have an independent fear of persecution from the fear shared by an identifiable group of persons to which he or she belongs: R. v. Immigration Appeal Tribunal and another, ex p. Shah [1997] Imm. A.R. 584.Google Scholar See also Hathaway, idem, pp.89–97.

112. In the UK the asylum-seeker will be granted exceptional leave to remain. This is a decision taken by the Home Office outside the immigration rules. See, in particular, the Secretary of State's public policy statement that “We use exceptional leave to remain to respond to cases that are outside the [Refugee] Convention but within the terms of our other obligations, including the European Convention of Human Rights” (Secretary of State for the Home Department v. Jafar Danaie [1998] Imm. A.R. 87Google Scholar). Figures for the last ten years, however, indicate a constant drop in the number of first-instance decisions granting exceptional leave to remain (64% of total decisions in 1987, 10% in 1997) but a rise in the number of decisions refusing asylum and exceptional leave (23% in 1987, 77% in 1997), while the number of decisions recognising refugee status has remained generally the same (13%). See Home Office Statistical Bulletin, op. cit supra n.37, at Table 1.2.

113. Chahal, supra n.3, at para.80.

114. Supra n.6, at para.91.

115. Supra n.23.

116. Supra n.97.

117. Supra n.44.

118. Supra n.3.

119. Supra n.14.

120. 28 Nov. 1996, Reports of Judg. and Dec (1996–V) No.23.Google Scholar

121. Supra n.88.

122. Supra n.5.

123. In Soering the Court concluded that “the likelihood of the feared exposure of the applicant to the ‘death row phenomenon’ has been shown to be such as to bring Article 3 into play” (supra n.6, at para.99). In Vilvarajah the Court held that “A mere possibility of ill-treatment, however, in such circumstances [i.e. the personal position of the applicants was not any worse than the generality of other members of the Tamil community] is not in itself sufficient to give rise to a breach of Article 3” (supra n.97, at para.111).

124. In Vijayanathan and Pusparajah the Court held that as “no expulsion order has been made with respect to the applicants… Mr Vijayanathan and Mr Pusparajah cannot, as matters stand, claim ‘to be the victim[s] of a violation’ within the meaning of Article 25(1) of the Convention” (supra n.44, at para.46).

125. This was clearly stated in Vilvarajah (supra n.97, at para.111) and more recently in H.L.R. v. France (supra n.88, at para.42). The risk of being sent on to a third country may also be considered, although the Strasbourg organs have not yet taken a position on this.

126. Soering, supra n.6, at para.90. See also e.g. H.L.R. v. France, idem, para.39.

127. Ovey, C., “Prohibition of Refoulement: The Meaning of Article 3 of the E.C.H.R.”, ELENA International Course (1997), p. 11 (unpublished).Google Scholar

128. The Court considers objective independent reports as high-level evidence. Amnesty International reports are based on individual affidavits and therefore constitute a lower level of evidence. However, such reports carried considerable weight in Chahal (supra n.3, at paras.99–100).Google Scholar

129. In particular, Judge Pekkanen argued in his dissenting opinion that the risk of ill-treatment was serious in both cases, but the Court found that concrete evidence of such a risk was much stronger in Chahal than in H.L.R.

130. Once “substantial grounds” and “real risk” have been shown, a minimum level of severity must still be shown for the treatment to be considered as torture or inhuman or degrading treatment: supra Part V.

131. Supra n.35. Note that the same view has been held by the Torture Committee since Alan v. Switzerland (Communication No.21/1995)Google Scholar

132. In a more general context, the Human Rights Committee stated that “States parties must not expose individuals to the anger of torture or cruel, inhuman or degrading treatment or punishment upon return to another country by way of their extradition, expulsion or refoulement”: General Comment 20/44, para.9, on Art.7.

133. M.A. v. Italy, Communication No.117/1981, para.13.4.Google Scholar

134. Kindler, supra n.47, at para. 13.2. This view was confirmed in Ng and Cox (both supra n.56).

135. Kindler, idem, para.6.2.

136. Idem, para. 15.3.

137. There is nothing, however, preventing the Committee from referring to such reports as part of its own expert knowledge heritage. See Nowak. op. cit. supra n.11, at p.693.Google Scholar

138. Mr Kurt Herndl, in his dissenting opinion, however, pointed out that the Committee failed to rely on enough evidence, in particular, scientific evidence. In both Kindler, idem, and Cox (supra n.56) the Committee reached the conclusion that there would be no violation of Art.7. See also Chaplin, supra n.96 (no compelling circumstances, no violation of Art.7), Graham and Morrison, supra n.67 (no compelling circumstances, no violation of Art.7), and Stephens, supra n.96 (severe beating, violation of Art.7).

139. Art.3 of the Torture Convention requires the existence of “substantial grounds for believing that [a person] would be in danger of being subjected to torture”. In the light of the Committee's practice, the terms “danger” and “real risk” have been used to mean Die same.

140. Mutombo, supra n.20, at para.9.3.

141. Supra n.131

142. Communication No.41/1996.

143. Communication No.43/1996.

144. Supra n.32.

145. Communication No.91/1997. This is an unusual case because the applicant was never politically active, nor did he claim to be, and he had been lying about his identity and story. The Committee nevertheless ruled that since the applicant had been tortured in the past (no doubts existed that he had), he could be tortured again in view of his more recent activities. It nevertheless refused to recognise such past persecution as sufficient evidence in I.A.O. v. Sweden (Communication No.65/1997).Google Scholar

146. Communication No.101/1997.

147. Communication No.36/1995. His claim lacked substantiated evidence since he claimed to have been maltreated only during his first detention, not his second, the periods of detention had been very short, and there was no risk coming from the authorities.

148. Supra n.14. The Committee considered that the “mere fact” that a person “would be arrested and retried would not constitute substantial grounds for believing that he would be in danger of being subjected to torture”. Also, the author failed to demonstrate that he would be personally at risk.

149. Communication No.28/1995, 10 Nov. 1997. The author failed to establish that he would face a “foreseeable, real and personal risk” if returned to Turkey. See also G.R.B. v. Sweden, supra n.98.

150. This was reaffirmed by the Committee in Aydm (supra n.146) in the following terms: “the risk does not have to meet the test of being highly probable”. Like the E.Ct H.R., the Torture Committee requires more than a mere possibility of risk (Vilvarajah, supra n.97).

151. Rule of Procedure 110, Torture Committee. Note that this is also the case for the Strasbourg organs.

152. Art.3(2), Torture Convention.

153. The Committee established this principle in Mutombo (supra n 20, at para.9.3). It was confirmed in e.g. X. v. Netherlands (supra n.147) and Kisoki (supra n.142).

154. Alan, supra n.131.

155. In Valentijn (supra n.71), the Committee nevertheless made it clear that it would not question the evaluation of the evidence made by the domestic courts, except in cases where this assessment was manifestly arbitrary or amounted to a denial of justice.

156. In Mutombo (supra n.20), for instance, the Committee recognised the fact that Zaire was not a signatory of the Torture Convention to be a relevant factor in finding real risk. And in Alan (supra n.131), its view was that although Turkey was a party to the Convention and had recognised the Committee's competence to receive individual communications, this did not necessarily constitute “sufficient guarantee” against refoulement. Finally, it recognised that there was no safe area in Turkey for Mr Alan because his native place was not safe and the police were looking for him.

157. Mutombo, supra n.20, at para.9.2.

158. Alan, supra n.131, at para. 11.3, Kisoki, supra n.142, at para 9.3, and Tola, supra n. 143, at para.103. Express reference was made in particular to paras.198–199 of the UNHCR Handbook.

159. Supra n.16. See also Raguz (supra n.108).

160. Reports of Judg. and Dec. (1997–VII) no. 56.Google Scholar