COURT (CHAMBER)
(Application
no. 13163/87;
13164/87; 13165/87; 13447/87; 13448/87)
30 October 1991
AS TO THE
LAW
ALLEGED BREACH
OF ARTICLE 3 (art. 3)
101. The
applicants alleged that their removal to Sri Lanka in February 1988 amounted to
inhuman and degrading treatment in breach of Article 3 (art. 3) which reads as
follows:
"No one
shall be subjected to torture or to inhuman or degrading treatment or
punishment."
Applicability
of Article 3 (art. 3) in expulsion cases
102. At the
outset, the Court observes that Contracting States have the right, as a matter
of well-established international law and subject to their treaty obligations
including Article 3 (art. 3), to control the entry, residence and expulsion of
aliens (see the Moustaquim judgment of 18 February 1991, Series A no. 193, p.
19, para. 43, and the authorities cited therein). Moreover, it must be noted
that the right to political asylum is not contained in either the Convention or
its Protocols. This is borne out by several recommendations of the Assembly of
the Council of Europe on the right of asylum (see Recommendation 293 (1961),
Texts Adopted, 30th Ordinary Session, 21-28 September 1961, and Recommendation
434 (1965), Yearbook of the Convention, Vol. 8, pp. 56-57 [1965]) as well as a
subsequent resolution and declaration of the Committee of Ministers (see
Resolution 67 (14), Yearbook of the Convention, Vol. 10, pp. 104-105 [1967],
and Declaration on Territorial Asylum, adopted on 18 November 1977, Collected
Texts, 1987 edition, p. 202).
103. In its
Cruz Varas judgment of 20 March 1991 the Court held that expulsion by a
Contracting State of an asylum seeker may give rise to an issue under Article 3
(art. 3), and hence engage the responsibility of that State under the
Convention, where substantial grounds have been shown for believing that the
person concerned faced a real risk of being subjected to torture or to inhuman
or degrading treatment or punishment in the country to which he was returned
(Series A no. 201, p. 28, paras. 69 and 70).
Application
of Article 3 (art. 3) in the circumstances of the case
General
approach to assessing the risk of ill-treatment
107. In its
Cruz Varas judgment of 20 March 1991 the Court noted the following principles
relevant to its assessment of the risk of ill-treatment (Series A no. 201, pp.
29-31, paras. 75-76 and 83):
(1) In
determining whether substantial grounds have been shown for believing the
existence of a real risk of treatment contrary to Article 3 (art. 3) the Court
will assess the issue in the light of all the material placed before it or, if
necessary, material obtained proprio motu;
(2) Further,
since the nature of the Contracting StatesÕ responsibility under Article 3
(art. 3) in cases of this kind lies in the act of exposing an individual to the
risk of ill-treatment, the existence of the risk must be assessed primarily
with reference to those facts which were known or ought to have been known to
the Contracting State at the time of the expulsion; the Court is not precluded,
however, from having regard to information which comes to light subsequent to
the expulsion. This may be of value in confirming or refuting the appreciation
that has been made by the Contracting Party or the well-foundedness or
otherwise of an applicantÕs fears;
(3)
Ill-treatment must attain a minimum level of severity if it is to fall within
the scope of Article 3 (art. 3). The assessment of this minimum, is, in the
nature of things, relative; it depends on all the circumstances of the case.
108. The
CourtÕs examination of the existence of a risk of ill-treatment in breach of Article
3 (art. 3) at the relevant time must necessarily be a rigorous one in view of
the absolute character of this provision and the fact that it enshrines one of
the fundamental values of the democratic societies making up the Council of
Europe (see the Soering judgment of 7 July 1989, Series A no. 161, p. 34, para.
88). It follows from the above principles that the examination of this issue in
the present case must focus on the foreseeable consequences of the removal of
the applicants to Sri Lanka in the light of the general situation there in
February 1988 as well as on their personal circumstances.
Whether the removal of the applicants
exposed them to a real risk of inhuman treatment
109. In the
light of the CommissionÕs report and the observations thereon by the applicants
and the Government it seems clear that by February 1988 there was an
improvement in the situation in the north and east of Sri Lanka - the main
areas of disturbance. The IPFK had, in accordance with the Accord of July 1987,
taken over from the Sinhalese dominated security forces in these areas and the
major fighting at Jaffna had ended.
Although
large parts of the country remained quiet, occasional fighting still took place
in the north and east of Sri Lanka between units of the IPKF and Tamil
militants who rejected the Accord. In these areas there was a persistent threat
of violence and a risk that civilians might become caught up in the fighting
(see paragraphs 74-75 above).
110.
Nevertheless, the UNHCR voluntary repatriation programme which had begun to
operate at the end of December 1987 provides a strong indication that by
February 1988 the situation had improved sufficiently to enable large numbers
of Tamils to be repatriated to Sri Lanka notwithstanding the continued existence
of civil disturbance. It also appears that many others returned by their own
means (see paragraph 76 above).
111. 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 their country. Since the situation was
still unsettled there existed the possibility that they might be detained and ill-treated
as appears to have occurred previously in the cases of some of the applicants
(see paragraphs 10, 22 and 33 above). A mere possibility of ill-treatment,
however, in such circumstances, is not in itself sufficient to give rise to a
breach of Article 3 (art. 3).
112. It is
claimed that the second, third and fourth applicants were in fact subjected to
ill-treatment following their return (see paragraphs 28-29, 43 and 56 above).
Be that as it may, however, there existed no special distinguishing features in
their cases that could or ought to have enabled the Secretary of State to
foresee that they would be treated in this way.
113. In
addition, the removal to Sri Lanka of the fourth and fifth applicants without
identity cards is open to criticism on the basis that it was likely to make
travelling more difficult for them because of the existence of numerous army
checkpoints. It cannot be said however that this fact alone exposed them to a
real risk of treatment going beyond the threshold set by Article 3 (art. 3).
114. The
Court also attaches importance to the knowledge and experience that the United
Kingdom authorities had in dealing with large numbers of asylum seekers from
Sri Lanka, many of whom were granted leave to stay, and to the fact that the personal
circumstances of each applicant had been carefully considered by the Secretary
of State in the light of a substantial body of material concerning the current
situation in Sri Lanka and the position of the Tamil community within it (see
the above-mentioned Cruz Varas judgment, Series A no. 201, p. 31, para. 81, and
paragraphs 5, 17, 34, 46, 57, 77-79 and 97 above).
115. In the
light of these considerations the Court finds that substantial grounds have not
been established for believing that the applicants would be exposed to a real
risk of being subjected to inhuman or degrading treatment within the meaning of
Article 3 (art. 3) on their return to Sri Lanka in February 1988.
116.
Accordingly, there has been no breach of Article 3 (art. 3).
ALLEGED BREACH
OF ARTICLE 13 (art. 13)
117. The
applicants further alleged that they had no effective remedy in the United Kingdom
in respect of their Article 3 (art. 3) complaint as required by Article 13
(art. 13) which reads as follows:
"Everyone
whose rights and freedoms as set forth in [the] Convention are violated shall
have an effective remedy before a national authority notwithstanding that the
violation has been committed by persons acting in an official capacity."
118. In
their submission, in judicial review proceedings the courts do not control the
merits of the Secretary of StateÕs refusal of asylum but only the manner in
which the decision on the merits was taken. In particular, they do not
ascertain whether the Secretary of State was correct in his assessment of the
risks to which those concerned would be subjected. Moreover, the courts have
constantly stated that in reviewing the exercise of discretion in such cases
they will not substitute their views on the merits of the case for that of the
Secretary of State.
The
applicants accepted that judicial review might be an effective remedy where, as
in the Soering case (above-mentioned judgment of 7 July 1989, Series A no.
161), the facts were not in dispute between the parties and the issue was
whether the decision was such that no reasonable Secretary of State could have
made it. However, this was not so in their case where the question of the risks
to which they would be exposed if sent back to Sri Lanka was the very substance
of the dispute with the Secretary of State.
119. The
Commission agreed with the applicants, observing that in asylum cases judicial
review of the reasonableness of the asylum seekersÕ fear of persecution should
be a thorough one.
120. The
Government considered that judicial review proceedings provided an effective
remedy in respect of a complaint under Article 3 (art. 3) as the Court had
found in its Soering judgment (loc. cit., pp. 46-48, paras. 116-124), there
being no material difference in that respect between that case and the present
one. It was not accepted that the evidential issues in the Soering case were
less complex or that there was no dispute between the parties as to the risk of
the applicant facing inhuman and degrading treatment. In both cases the issues
were the same, namely, whether there existed a real and substantial risk that
the applicants would be exposed to inhuman and degrading treatment. It was open
to the applicants on the basis of objections now advanced to the Secretary of
StateÕs decisions to challenge those decisions, on the ground of
"Wednesbury unreasonableness" but they did not do so. Judicial review
on this ground does have the effect of controlling the merits of the Secretary
of StateÕs decision, as illustrated by the Bugdaycay Jeyakumaran and Yemoh
cases (see paragraph 91 above), and is, in the circumstances, a sufficient
means of doing so.
121. It is
not disputed before the Court that the applicantsÕ claim under Article 3 (art.
3) was an "arguable" one on its merits (see, inter alia, the Boyle
and Rice judgment of 27 April 1988, Series A no. 131, p. 23, para. 52).
122. Article
13 (art. 13) guarantees the availability of a remedy at national level to
enforce the substance of the Convention rights and freedoms in whatever form
they may happen to be secured in the domestic legal order (ibid.). Its effect
is thus to require the provision of a domestic remedy allowing the competent
"national authority" both to deal with the substance of the relevant
Convention complaint and to grant appropriate relief (see, inter alia, the
above-mentioned Soering judgment, Series A no. 161, p. 47, para. 120). However,
Article 13 (art. 13) does not go so far as to require any particular form of
remedy, Contracting States being afforded a margin of discretion in conforming
to their obligations under this provision. Nor does the effectiveness of a
remedy for the purposes of Article 13 (art. 13) depend on the certainty of a
favourable outcome for the applicant (see the Swedish Engine DriversÕ Union
judgment of 6 February 1976, Series A no. 20, p. 18, para. 50).
123. In its
Soering judgment of 7 July 1989 (loc. cit., pp. 47-48, paras. 121 and 124) the
Court considered judicial review proceedings to be an effective remedy in
relation to Mr SoeringÕs complaint. It was satisfied that the English courts
could review the "reasonableness" of an extradition decision in the
light of the kind of factors relied on by the applicant before the Convention
institutions in the context of Article 3 (art. 3). In particular, it noted that
in judicial review proceedings a court may rule the exercise of executive
discretion unlawful on the ground that it is tainted with illegality,
irrationality or procedural impropriety and that the test of
"irrationality" on the basis of the "Wednesbury principles"
would be that no reasonable Secretary of State could have made an order for
surrender in the circumstances. Further, according to the United Kingdom
Government, a court would have jurisdiction to quash a challenged decision to
send a fugitive to a country where it was established that there was a serious
risk of inhuman or degrading treatment, on the ground that in all the circumstances
of the case the decision was one that no reasonable Secretary of State could
take.
124. The
Court does not consider that there are any material differences between the
present case and the Soering case which should lead it to reach a different
conclusion in this respect.
125. It is
not in dispute that the English courts are able in asylum cases to review the
Secretary of StateÕs refusal to grant asylum with reference to the same
principles of judicial review as considered in the Soering case and to quash a
decision in similar circumstances and that they have done so in decided cases
(see paragraphs 89-91 above). Indeed the courts have stressed their special
responsibility to subject administrative decisions in this area to the most
anxious scrutiny where an applicantÕs life or liberty may be at risk (see
paragraph 91 above). Moreover, the practice is that an asylum seeker will not
be removed from the United Kingdom until proceedings are complete once he has
obtained leave to apply for judicial review (see paragraph 92 above).
126. While
it is true that there are limitations to the powers of the courts in judicial
review proceedings (see paragraphs 89-92 above) the Court is of the opinion
that these powers, exercisable as they are by the highest tribunals in the
land, do provide an effective degree of control over the decisions of the
administrative authorities in asylum cases and are sufficient to satisfy the
requirements of Article 13 (art. 13).
127. The
applicants thus had available to them an effective remedy in relation to their
complaint under Article 3 (art. 3). There is accordingly no breach of Article
13 (art. 13).
1. Holds by eight votes to one that there has been no violation of
Article 3 (art. 3);
2. Holds by seven votes to two that there has been no violation of
Article 13 (art. 13).