While most modern extradition treaties appear to seek a balance between protecting the fundamental rights of the requested person and the need to ensure that the
147 [1978] QB 732.
148 [1980] 1 WLR 1110, p 1127.
149 Ibid.
150 [1980] 1 CMLR 709.
151 [1984] 3 CMLR 575.
152 [1997] 1 WLR 864.
extradition process operates efficiently and effectively, it is doubtful whether there is a rule of international law requiring extradition procedures to take account of general principles of human rights.153Nevertheless, in practice, many extradition treaties do impose procedural protections restricting extradition if surrender would lead to gross violations of human rights. Although, on occasion, human rights instruments do not contain specific provisions dealing with extradition, reluctance to include an express provision has not placed extradition beyond the scope of human rights treaties. Thus, fundamental human rights principles have been found to apply to extradition.
8.5.1 European Convention on Human Rights154
The European Convention on Human Rights was signed in Rome on 4 November 1950 and entered into force on 3 September 1953. It takes the form of a treaty, binding in international law, which sets out minimum international standards for the protection of human rights and provides effective enforcement procedures. The Convention established the first international complaints procedure and the first international court dealing exclusively with human rights. The substantive rights and freedoms guaranteed by the Convention and the procedures for enforcing these rights have subsequently been extended by the adoption of a series of protocols. It was not intended that the Convention should replace the protection of human rights at national level; indeed, before there is recourse to proceedings under the Convention all remedies at the domestic level must have been exhausted. In the event of an alleged breach of the Convention, the European Court of Human Rights (ECHR) can now receive applications from both States and individuals claiming to be a victim of a violation. Although the UK was one of the first States to sign and ratify the Convention, it refused to recognise the right of individual petition and the jurisdiction of the ECHR until 1966. The right of individual complaint and recognition of the ECHR’s jurisdiction are now mandatory.
The ECHR has acknowledged that contracting States have a right, subject to their various treaty obligations, to control entry, residence and expulsion of non-nationals.
Moreover, the right to political asylum is not contained within the Convention or any of its protocols. Article 5(1)(f) of the European Convention on Human Rights specifically permits the lawful arrest or detention of a person to prevent his effecting an unauthorised entry into the country or a person against whom action is being taken with a view to deportation or extradition. Further, provided there is a legal basis for the fugitive’s arrest deportation in the disguise of extradition would not necessarily be contrary to the Convention.155Thus, the Convention does not guarantee the right not to be expelled from the territory of a contracting State. However, it is well established in the jurisprudence of the ECHR that extradition may give rise to consequences that adversely affect the enjoyment of a right guaranteed by the Convention.156It has also been accepted that in some circumstances an order for
153 For further discussion, seeop cit,Van den Wyngaert, note 55, pp 757–79.
154 ETS 5, UKTS 71 (1953).
155 Illich Sanchez Ramirez v France,Application No 28780/95.
156 Soering v UK(1989) 11 EHRR 439.
157 Cruz Varas v Sweden(1991) 14 EHRR 1.
deportation would, if executed, give rise to a violation of the Convention.157The ECHR has demonstrated a willingness to resolve a conflict between obligations under an extradition treaty and obligations under the Convention in favour of protecting fundamental rights.158It would appear that the protection provided by Art 3 is wider than that provided by other international human rights instruments.159While there is a need to seek a balance between protecting the fundamental rights of the individual and the public interest, if the ECHR is satisfied that the applicant is at risk of being subjected to any of the forms of treatment proscribed by Art 3, the balance must be in favour of non-extradition. Accordingly, Art 3 of the European Convention on Human Rights can impose significant limitations on the use of the extradition process.
8.5.2 Prohibition against torture and inhuman and degrading treatment
In the landmark case ofSoering v UK,160the ECHR was of the opinion that to surrender a person to another State where there were substantial grounds for believing that he would be in danger of being subjected to torture, inhuman or degrading treatment would be a violation of Art 3 of the European Convention on Human Rights. In this case, the UK sought to extradite a German national from the UK to the US under the terms of an extradition treaty that had been incorporated into the law of the UK.161The applicant was accused of committing a murder in Virginia, in the US, and argued that his extradition would amount to a violation of Art 3 of the Convention. In capital murder cases, the State of Virginia could impose the death penalty which generally involved a prisoner spending long periods of time on ‘death row’. The applicant accepted that the death penalty was notper secontrary to the Convention as Art 2(1) permits capital punishment under certain conditions. However, he argued that exposure to the death row phenomenon would amount to inhuman and degrading treatment and infringe Art 3. The UK Government submitted that the Convention should not be interpreted so as to impose responsibility on a contracting State for acts which occur outside its jurisdiction. The basis for this argument was that such an interpretation would interfere with international treaty rights and lead to a conflict with the norms of the international judicial process. Further, it would involve adjudication on the internal affairs of a foreign State and its domestic criminal justice system. In support of this argument, the UK Government relied upon traditional principles of extradition which respect the rule of non-inquiry. In rejecting this argument, the ECHR accepted that liability is incurred by the extraditing contracting State by reason of its having taken action which has as a direct consequence the exposure of an individual to proscribed ill-treatment.162Furthermore, it was noted that:
158 For further discussion of this case and extradition and human rights generally, seeop cit,Swart, note 39, pp 505–34.
159 InAhmed v Austria(1996) 24 EHRR 278, para 41, it was noted that: The protection afforded by Art 3 is thus wider than that provided by Art 33 of the UN 1951 Convention on the Status of Refugees.’
160 (1989) 11 EHRR 439.
161 By Orders in Council, namely, the USA (Extradition) Order 1976 SI 1976/2144 and the USA (Extradition Amendment) Order 1986 SI 1986/2020.
162 (1989) 11 EHRR 439, para 91.
…Art 3 enshrines one of the fundamental values of the democratic societies making up the Council of Europe. It is also to be found in similar terms in other international instruments such as the 1966 International Covenant on Civil and Political Rights and the 1969 American Convention on Human Rights and is generally recognised as an internationally accepted standard.163
SinceSoering,the ECHR has consistently reiterated its position regarding Art 3, which it accepts encapsulates the most fundamental right of an individual. Despite acknowledging the risk of establishing safe havens for fugitive offenders which could undermine the foundations of extradition, the ECHR has steadfastly maintained that there was no room for balancing the risk of ill-treatment against the reasons for expulsion in determining whether a State’s responsibility under Art 3 is engaged.164Indeed, in Hilal v UK165the ECHR observed that notwithstanding the State’s right to control entry, Art 3 implies an obligation not to expel if there is a real risk of torture. InJabari v Turkey,166 the ECHR observed that having regard to the absolute nature of Art 3 States must undertake a rigorous scrutiny167of claims that expulsion to a third country will expose that individual to treatment prohibited by Art 3. The applicant, an Iranian national, alleged that she would face a real risk of ill-treatment and death by stoning if expelled by Turkey and returned to Iran. Finding for the applicant, the ECHR held that the Turkishauthoritieshadfailedtoengageinanymeaningfulassessmentoftheapplication.
Following the terrorist attacks in the US in September 2001, concerns have been expressed regarding the problems which may result if Council of Europe States are reluctant to extradite to the US on the basis of the death row phenomenon. However, the ECHR has generally indicated its willingness to accept undertakings from the United States as evidence that extradition will not give rise to a breach of Art 3.
TheSoeringprinciple requires that applicants show that there are ‘substantial grounds’ for their argument that they would be exposed to inhuman and degrading treatment. In the absence of convincing evidence to this effect, extradition to States with poor human rights records will not necessarily be contrary to the Convention.
InMamatkulov and Abdurasulovic v Turkey,168for example, the applicants complained that following their extradition from Turkey to Uzbekistan their lives were at risk and they were in danger of being subjected to torture. The complaint also related to the unfairness of Turkish extradition proceedings and criminal proceedings in Uzbekistan. The ECHR reiterated that while contracting States have the right to control the entry, residence and expulsion of aliens, States may incur responsibility where substantial grounds exist for believing that a person would face a real risk of being subjected to treatment which is contrary to Art 3. Noting that the applicants in this case had already been expelled, the ECHR held that Turkey failed to comply with procedures designed to assist the ECHR carry out an effective examination of the application. However, while the evidence in this case indicated concern relating to the general situation in Uzbekistan, it did not confirm the specific allegations. In addition, allegations that the applicants had been subjected to torture were not
163 Ibid,para 88.
164 Ibid,para 81.
165 (2001) 33 EHRR 2.
166 (2000) 9 BHRC 1.
167 Ibid,para 39.
168 Application Nos 46827/99 and 46951/99.
corroborated by medical examinations conducted by prison doctors. Accordingly, the ECHR found that there was insufficient evidence to warrant a finding of a violation of Art 3. Referring to the complaint regarding the fairness of proceedings, the ECHR emphasised that proceedings relating to the entry and expulsion of aliens do not invoke fair trial rights under Art 6.
8.5.3 TheSoeringprinciple and deportation
Subsequent developments illustrate that the ECHR is prepared, within the context of Art 3, to extend theSoeringprinciple to other forms of expulsion. InChahal v UK,169 the ECHR observed that the prohibition against expulsion in Art 3 cases was absolutely irrespective of the applicant’s conduct and applied to deportation. The applicant, a leading figure in the Sikh community in the UK, was detained in 1985 under the Prevention of Terrorism (Temporary Provisions) Act 1984 in respect of a conspiracy to assassinate the Indian Prime Minister.170The Secretary of State ordered his deportation to India on the grounds that his continued presence in the UK was not conducive to the public good for reasons of national security.171The applicant sought asylum on the basis that he could establish the well founded fear of persecution test as required under the terms of the 1951 UN Convention on the Status of Refugees.172His application was rejected. Following Chahal’s successful application for judicial review, the Secretary of State was required to re-examine the case. Again asylum was refused and the deportation order confirmed. The applicant complained that his deportation would result in a violation of Art 3 of the European Convention on Human Rights. The majority of the ECHR was satisfied that the order for the applicant’s deportation would, if executed, give rise to a violation of Art 3, and where there are substantial grounds for believing that expulsion would result in ill-treatment, the national interests of the State could not be invoked to override the interests of the individual. The European Court observed that it was entitled to conduct its own examination of the existence of a real risk of ill-treatment and considered reports supplied by Amnesty International and the UN’s special rapporteur on torture. Notwithstanding the efforts of the Indian authorities to bring about reform, the European Court was sufficiently satisfied that the violation of human rights by certain members of the security forces in Punjab and elsewhere in India is a recalcitrant and enduring problem173and it was accepted that the applicant’s return would amount to a violation of Art 3.
While the guarantees provided by Art 3 have generally been held to apply to risks created by public authorities in the receiving State, inD v UK,174the ECHR was prepared to assess the risk resulting from the State’s inability to prevent a violation of Art 3. On his arrival in the UK, the applicant was found in possession of a large
169 (1996) 23 EHRR 413.
170 He was eventually released without charge. In 1986, he was convicted of assault and affray and served concurrent sentences of six and nine months; however, these convictions were eventually quashed by the Court of Appeal.
171 See Immigration Act 1971, s 3(5)(b).
172 189 UNTS 150.
173 (1996) 23 EHRR 413, para 105.
174 (1997) 24 EHRR 423.
quantity of a proscribed drug and sentenced to six years’ imprisonment. He was discovered to be suffering from an AIDS-related condition and by mid-1996 his prognosis was poor. Shortly before his release from prison, the immigration authorities ordered his removal from the UK. The applicant complained that the receiving State could not provide the medical care needed to treat his condition and his health would deteriorate. While the ECHR accepted that the expulsion of alien drug couriers was a justified response to drug-trafficking, it must be balanced against the absolute prohibition on torture and inhuman or degrading treatment. Where there was a real risk that the applicant’s deportation would result in a violation of Art 3, the balance must be in favour of non-expulsion. Persons can be lawfully detained pending a deportation hearing. InEx p Saadi175the House of Lords held that detention for a short period in order to bring about a speedy decision making process was not necessarily unlawful where the power is exercised to prevent unauthorised entry.
TheSoeringprinciple was further extended inHLR v France,176when the ECHR was called upon to consider whether the inability of the receiving State to protect the applicant from the acts of a third party would infringe Art 3. Having been found in possession of cocaine, the applicant was sentenced to imprisonment by a French court and permanently excluded from French territory. During the criminal proceedings, he gave evidence against members of a Colombian drug cartel and as a consequence feared for his safety. He claimed that his deportation to Colombia would give rise to a violation of Art 3 on the grounds that the Colombian authorities were incapable of giving him adequate protection from reprisals by members of the drug cartel. Whilst the Commission found for the applicant, the European Court was not satisfied that there were substantial grounds for believing his deportation would expose him to a real risk of the treatment prohibited by Art 3. Furthermore, this claim must be assessed against the background of the general situation regarding the protection of human rights in Colombia and the applicant failed to show that his personal situation would be worse than that of other Colombians were he to be deported. Notwithstanding the outcome of this case, the European Court acknowledges that Art 3 of the European Convention on Human Rights absolutely prohibits torture or inhuman or degrading treatment, irrespective of the victim’s conduct or the source of the ill-treatment and, if extradition treaties fail to protect the person adequately, a minimum level of protection is provided by the Convention.
However, many of the other substantive clauses in the Convention and its protocols make provision for exceptions and derogations in the event of a public emergency.177 The Convention does not in principle prohibit contracting States from regulating the length of stay of aliens and, in some circumstances, an expulsion motivated by concern to regulate the labour market will be justified.178Accordingly, the ECHR is not always willing to accept that Convention rights provide a bar to extradition.
175 [2002] UKHL 41.
176 (1998) 26 EHRR 29.
177 SeeIreland v UK,Ser A, No 25, para 65.
178 Berrehab v The Netherlands(1988) 11 EHRR 322.
8.5.4 International Covenant on Civil and Political Rights
Thetravaux preparatoiresreveal that during the drafting of the Covenant a proposal to include a provision addressing extradition was expressly rejected. However, while the Covenant may not specifically provide for a right not to be extradited, the effects of extradition can give rise to issues under other provisions of the Covenant. The surrender of a person to another State in circumstances in which it was foreseeable that torture would take place, for example, would place the contracting party in violation of its obligation under Art 7 of the Covenant. The foreseeability of a prohibited consequence would mean that there was a present violation of the Covenant, even though the consequence did not occur until later. Communications alleging violations of the International Covenant on Civil and Political Rights are considered by the Human Rights Committee, which was established under Art 28.
Whilst the Committee will consider whether the author of the communication was granted the necessary procedural safeguards provided in the Covenant, it has consistently maintained that it is not competent to reassess the facts and evidence considered by national courts. The Committee can request that a contracting party does not deport to States which carry out the death penalty.179
InKindler v Canada,180the author complained that the decision to extradite him under the Extradition Treaty of 1976 between the US and Canada violated several articles of the Covenant. Following his conviction for murder in the US, the jury recommended the imposition of the death penalty. However, prior to sentence he fled to Canada where he was arrested and eventually extradited to the US. The issue in this case was whether extradition exposed the author to a real risk of a violation of his rights under the Covenant. The Committee decided that the communication was admissible with respect to Art 6, which addresses capital punishment, and Art 7, which prohibits torture and cruel, inhuman and degrading treatment and found that the material submitted by the parties did not support a complaint based on the absence of procedural guarantees during the course of the extradition process. The Committee did not find that the terms of Art 6 necessarily require Canada to refuse to extradite to death penalty States. Furthermore, on previous occasions the Committee found that ‘prolonged periods’ of detention under a severe custodial regime on death row cannot generally be considered to constitute cruel, inhuman or degrading treatment.181Accordingly, the facts of this case did not reveal a violation of either Art 6 or 7 of the Covenant.
InT v Australia,182the author claimed that her husband’s deportation to Malaysia, where she alleged there was a real risk that he would face the death penalty, was a violation of Australia’s obligation to protect his right to life. He had been convicted in Australia of importing heroin from Malaysia. Although the Australian Government sought his deportation on the grounds that he had no entitlement to remain in Australia, Malaysia had not requested his return. It was noted that deportation differs from extradition in that ‘the purpose of extradition is to return a
179 International Criminal Tribunal for the Former Yugoslavia (ICTY) Rules, r 86.
180 Case No 470/1991.
181 SeeHoward Martin v Jamaica,Application No 317/1988, para 12.2.
182 Case No 706/1996.