Abstract

In a case involving an order for the deportation to India of a Sikh separatist for national security reasons, the European Court of Human Rights ruled that article 3 of the European Convention may engage the responsibility of the State where substantial grounds are shown for believing there would be real risk to the deportee of torture or inhuman or degrading treatment or punishment in the receiving country. Article 3, said the Court, provides an absolute prohibition of torture; consequently in expulsion cases, if substantial grounds are shown for believing diat the deportee would be at risk, his or her conduct cannot be a material consideration. Taking account of evidence relating to conditions in the country of origin, the Court, by twelve votes to seven, found a violation of article 3 in the event of decision to deport to India being implemented. The Court further considered whether article 5 of the Convention had been violated, given the length of time spent in detention pending deportation. By thirteen votes to six it found no violation of article 5 § 1, but unanimously found a violation of article 5 § 4 of the Convention (which guarantees a right of judicial review of the lawfulness of detention), so far as the domestic courts were not provided with information relating to national security and were thus unable to review whether the decision to detain the applicant was justified; the ‘procedural short-comings’ of the United Kingdom's special advisory panel in security cases meant that it could not be considered to be a ‘court’ for the purposes of article 5 § 4. With regard to the existence of an effective remedy under article 13, the Court found, also unanimously, that the existing judicial review and advisory panel procedure were inadequate remedies for an article 3 complaint, since they were unable to review the decision to deport widi reference solely to question of risk to die applicant, leaving aside national security considerations.

You do not currently have access to this article.