b. The European Convention on Human Rights and Fundamental Freedoms

  Main Debates Refugee Protection under Regional v. Universal Treaties Has the European Court of Human Rights (ECtHR) Exhibited Too Much or Too Little Deference to National Refugee Decision-Making Processes?Main PointsScope of Protection under Article 3 (Art. 3) of the ECHR v. Articles 1 and 33 of the 1951 ConventionEffective Remedies for Rejected Asylum Seekers under the ECHR ExpulsionFamily ReunificationDetention   Treaties Regional Core European Convention for the Protection of Human Rights and Fundamental Freedoms and its protocols, 4 November 1950 (213 U.N.T.S. 222)   Cases Core Art. 3 – prohibition of torture, ihnuman or degrading treatment or punishmentFacing real and immediate risk of ill-treatment Soering v. UK, ECtHR Judgment of 7 July 1989 (holding extradition from UK to USA of German national charged with capital crime and at risk of serving on death row would be a violation of Art. 3, recognising the extra-territorial effect of the ECHR provisions)Chahal v. UK, ECtHR judgment of 15 November 1996 (holding that deportation of a Sikh separatist to India on national security grounds would be in breach of ECHR Art. 3, as he would face real risk of being subjected to treatment contrary to Art. 3; the prohibition in Art. 3 is absolute also in expulsion cases, and the activities of the individual in question, however undesirable or dangerous, cannot be a material consideration)Ahmed v. Austria, ECtHR judgment of 17 December 1996 (reconfirming the absolute nature of Art. 3; deportation of a Somali convicted of serious criminal offences would therefore be a violation of Art.3 , as the applicant was under the risk to be subjected to inhuman and degrading treatment by non-state agents upon expulsion) Hilal v. UK, ECtHR judgment of 6 March 2001 (expulsion of Tanzanian opposition party member, having previously suffered serious ill-treatment in detention, would be contrary to Art. 3; no ‘internal flight alternative’ found to be viable in his case)Jabari v. Turkey, ECtHR judgment of 11 July 2000 (holding violation of Art. 3 in case of deportation that would return a woman who has committed adultery to Iran; Art. 13 violated as well due to the lack of an effective remedy with suspensive effect to challenge the rejection of her asylum claim)Cruz Varas and others v. Sweden, ECtHR judgment of 20 March 1991 (recognizing the extra-territorial effect of Art. 3 similarly applicable to rejected asylum seekers; finding no Art. 3 violation in expulsion of Chilean national denied asylum, noting that risk assessment by State Party must be based on facts known at time of expulsion)Vilvarajah and others v. UK, ECtHR judgment of 30 October 1991 (finding no breach of Art. 3 although applicants claimed to have been subjected to ill-treatment upon return to Sri Lanka; this had not been a foreseeable consequence of the removal of the  applicants, in the light of the general situation in Sri Lanka and their personal circumstances; a mere possibility of ill-treatment is not in itself sufficient to give rise to a breach of Art. 3, and there existed no special distinguishing features that could or ought to have enabled the UK authorities to foresee that they would be treated in this way) H.L.R. v. France, ECtHR judgment of 29 April 1997 (finding no violation of Art. 3 in case of expulsion of the applicant to Columbia, as there was no relevant evidence of risk of ill-treatment by non-state agents; thereby recognising that ill-treatment caused by such actors would fall within the scope of Art. 3 if the authorities are not able to obviate the risk by providing adequate protection)D. v. UK, ECtHR judgment of 2 May 1997 (applicant suffering from advanced stages of a terminal HIV/AIDS illness; expulsion to the country of origin, known for its lack of medical facilities and appropriate treatment in case, and where he would have no family or friends to care for him, would amount to inhumane treatment prohibited by Art. 3; the Court stressed the very exceptional circumstances of the case and the compelling humanitarian considerations at stake)S.C.C. v. Sweden, ECtHR admissibility decision of 15 February 2000 (expulsion to the country of origin, known for the availability of HIV/AIDS treatment, in case of relatively well-off applicant in early stage of illness, with close relatives residing in her  homeland, does not give rise to compelling humanitarian considerations) Bensaid v. UK, ECtHR judgment of 6 February 2001 (high threshold set by Art. 3, according to which a schizophrenic suffering from psychotic illness does not face a sufficiently real risk after his return to Algeria; not compelling humanitarian considerations as required under Art. 3, once the necessary treatment is available in the country of destination)Venkadajalasarma v. Netherlands, ECtHR judgment of 17 February 2004 (current situation in Sri Lanka makes it unlikely that Tamil applicant would run a real risk of being subject to ill-treatment after his expulsion from the Netherlands)Mamatkulov and Askarov v. Turkey, ECtHR judgment of 4 February 2005 (evidence insufficient to find a violation of Art. 3 by the applicants’ extradition from Turkey to Uzbekistan; the extradition constituted Turkey’s nonadherence to the Court’s indication of interim measures under Rule 39 of the ECHR Rules of Procedure, thereby violating ECHR, Art. 34)Said v. Netherlands, ECtHR judgment of 5 July 2005 (asylum seeker held to be protected against refoulement under Art. 3; the Dutch authorities had taken the failure to submit documents establishing his identity, nationality, or travel itinerary as affecting the credibility of his statements; the Court instead found the applicant’s statements consistent, corroborated by information from Amnesty International, and thus held that substantial grounds had been shown for believing that, if expelled, he would be  exposed to a real risk of illtreatment as prohibited by Art. 3)N. v. Finland, ECtHR judgment of 26 July 2005 (asylum seeker held to be protected against refoulement under Art. 3, despite the Finnish authorities’ doubts about his identity, origin, and credibility; two delegates of the Court were sent to take oral evidence from the applicant, his wife and a Finnish senior official; while retaining doubts about the credibility on some points, the Court found that the applicant’s accounts on the whole had to be considered sufficiently consistent and credible; deportation would therefore be in breach of Art. 3)Bader v. Sweden, ECtHR judgment of 8 November 2005 (asylum seeker held to be protected against refoulement due to a risk of flagrant denial of fair trial that might result in the death penalty; such treatment would amount to arbitrary deprivation of life in  breach of Art. 2; deportation of both the asylum seeker and his family members would therefore give rise to violations of Articles 2 and 3)Aoulmi v. France, ECtHR judgment of 17 January 2006 (high threshold set by Art. 3, in particular if deporting state has no direct responsibility for the potential infliction of harm due to substandard health services in country of origin; not proven that the applicant could not receive adequate medical treatment upon expulsion to Algeria; the binding nature of Rule 39 indications was reconfirmed, hence deportation despite such indication was held to violate Art. 34)D. and others v. Turkey, ECtHR judgment of 22 June 2006 (deportation of woman applicant in view of the awaiting execution of severe corporal punishment in Iran would constitute violation of Art. 3, as such punishment would inflict harm to her personal dignity and her physical and mental integrity; violation of Art. 3 would also occur to her husband and daughter, given their fear resulting from the prospective ill-treatment of D)Mayeka and Mitunga v. Belgium, ECtHR judgment of 12 October 2006 (the arrest, detention and subsequent deportation of a 5 year old child, transiting Belgium in order to join her mother living as a refugee in Canada, held to be in violation of Articles 3, 5, and 8; breaches of Art. 3 were found both due to the conditions of the child’s detention, the conduct of the deportation of the child to DR Congo, and the resulting distress and anxiety suffered by her mother)Salah Sheekh v. Netherlands, ECtHR judgment of 11 January 2007 (asylum seeker held to be protected against refoulement under Art. 3; there was a real chance that deportation to ‘relatively safe’ areas in Somalia would result in his removal to unsafe areas, hence there was no ‘internal flight alternative’ viable; the Court emphasised that even if ill-treatment be meted out arbitrarily or seen as a consequence of the general unstable situation, the asylum seeker would be protected under Art. 3, holding that it cannot be required that an applicant establishes further special distinguishing features concerning him personally in order to show that he would be personally at risk)ExtendedArticle 3 – prohibition of torture, inhuman or degrading treatment or punishmentGomes v. Sweden, ECtHR admissibility decision of 7 February 2006 (application declared inadmissible; the complaints of risk of death penalty, life imprisonment and torture held to be manifestly ill-founded due to the contradictory information given by the applicant to the Swedish authorities, and the lack of documents substantiating his allegations) Ayegh v. Sweden, ECtHR admissibility decision of 7 November 2006 (application declared inadmissible; the authenticity of documents invoked by the applicant was in dispute, and she was found not to have established a real risk to her life or physical integrity if deported to Iran; if the benefit of the doubt is to be given to asylum seekers, they must provide satisfactory explanation when the veracity of their submissions is questioned)Article 1 – territorial scope of applicabilityAl-Adsani v. UK, ECtHR judgment of 21 November 2001 (state not responsible for torture that has taken place outside the Council of Europe member state jurisdiction, even in case of an applicant of dual British/Kuwaiti citizenship; any positive obligation deriving from ECHR Articles 1 and 3 could extend only to the prevention of torture)Article 5 – deprivation of libertySaadi v. UK, ECtHR judgment of 11 July 2006 (detention of an asylum seeker to facilitate the examination found to be justified under Article 5 (1) (f); informing the applicant’s lawyer of the reason for the detention of his client after 76 hours of detention was incompatible with the requirement under Article 5 (2) to provide such information promptly) Article 9 – right to freedom of religionZ. and T. v. UK, ECtHR admissibility decision of 28 February 2006 (application declared inadmissible; the Court not ruling out the possibility that, in exceptional circumstances, there might be protection against refoulement on the basis of Art. 9 where the person would run a real risk of flagrant violation of that provision in the receiving state)Article 13 – right to effective remedyConka v. Belgium, ECtHR judgment of 5 February 2002 (the detention of rejected Roma asylum seekers before deportation to Slovakia constituted a violation of Art. 5; due to the specific circumstances of the deportation the prohibition against collective expulsion under Protocol 4 Art. 4 was violated; the procedure followed by the Belgian authorities did not provide an effective remedy in accordance with Art. 13, requiring guarantees of suspensive effect) Gebremedhin v. France, ECtHR judgment of 26 April 2007 (holding that the particular border procedure declaring ‘manifestly unfounded’ asylum applications inadmissible, and refusing the asylum seeker entry into the territory, was incompatible with Art. 13 taken together with Art.3; emphasising that in order to be effective, the domestic remedy must have suspensive effect as of right)ReadingsCoreH. Lambert, ‘Article 3 of the European Convention on Human Rights and the Protection of Refugees and Rejected Asylum-Seekers against Refoulement from Europe’, in European Convention on Human Rights and Protection of Persons in need of International Protection (Chisinau, 2000), pp. 77–87.UNHCR, ‘UNHCR Manual on Refugee Protection and the European Convention on Human Rights’, April 2003.ExtendedJ. Fitzpatrick, Human Rights Protection for Refugees, Asylum-Seekers, and Internally Displaced Persons: A Guide to  International Mechanisms and Procedures, (New York: Ardsley Transnational Publishers Inc., 2002), pp. 359–427. D.J. Harris, M. O’Boyle, and C. Warbrick, Law of the European Convention on Human Rights (London: Butterworths, 2001).C. Ovey and R. White, Jacobs and White, The European Convention on Human Rights (Oxford: Clarendon Press, 2006), pp. 88–90, 99–106.