Tony Hatfield's Retired Ramblings

Blair, Article 3 and the Chahal Dilemma

In his Press Briefing before he left for his holidays, Tony Blair made an oblique reference to the case of Chahal v UK This was in connection with the difficulty he saw in persuading the Courts that Article 3 of the European Convention on Human Rights should be rebalanced- a favourite New Labour word.

"Let no-one be in any doubt, the rules of the game are changing. These issues will of course be tested in the courts, up to now the concern has been that orders for deportation will be struck down as contrary to Article 3 of the European Convention on Human Rights as interpreted by the European Court in the Chahal case in 1996, and indeed we have had such cases struck down. However, the circumstances of our national security have self evidently changed, and we believe we can get the necessary assurances from the countries to which we will return the deportees, against their being subject to torture or ill treatment contrary to Article 3."

The Chahal appeal eventually arrived at the Strasbourg Court on 15th November 1996. The facts bear a striking similarity to those of the detainees the Home Office now wish to deport. Karamjit Singh Chahal entered the United Kingdom illegally in 1971. He was subsequently granted indefinite leave to remain by the Home Secretary on 10th December 1974. In 1984 he travelled to the Punjab, where on the 30th March, he was arrested, detained for three weeks and eventually released without charge. During his detention according to the evidence before the court he was:

“kept handcuffed in insanitary conditions, beaten to unconsciousness, electrocuted on various parts of his body and subjected to a mock execution.”

When he returned to the United Kingdom Chahal became active in the Sikh community. He was arrested on two occasions under the Prevention of Terrorism (Temporary Provisions) Act 1984. The first arrest involved allegations that he was involved in a conspiracy to murder the Indian Prime Minister, Rajiv Ghandi; the second involved allegations that he conspired to murder moderate Sikhs within the United Kingdom. On both occasions, having denied any involvement in either conspiracy, he was released without charge . He was subsequently charged with assault and affray arising out of a couple of separate incidents that occurred outside the "gurdwaras" (temple) at East Ham and Belvedere. He was acquitted of all charges. By 1990, the then Home Secretary Douglas Hurd decided Chahal was a person whose:

"continued presence in the United Kingdom was unconducive to the public good for reasons of national security and other reasons of a political nature, namely the international fight against terrorism."

The Strasbourg Court was also presented with a "diplomatic assurance" obtained by the Home Secretary from the Indian government to the effect that Chahal would not be subjected to ill treatment by the Indian authorities. The court had to decide, the effect of Article 3 of the Convention which provides:

"No one shall be subjected to torture or to inhuman or degrading treatment or punishment."

In a judgment of the government’s case the court noted:

79. Article 3 enshrines one of the most fundamental values of democratic society... The Court is well aware of the immense difficulties faced by States in modern times in protecting their communities from terrorist violence. However, even in these circumstances, the Convention prohibits in absolute terms torture or inhuman or degrading treatment or punishment, irrespective of the victim's conduct. Unlike most of the substantive clauses of the Convention and of Protocols Nos. 1 and 4, Article 3 makes no provision for exceptions and no derogation from it is permissible under Article 15 even in the event of a public emergency threatening the life of the nation …….

80. The prohibition provided by Article 3 against ill-treatment is equally absolute in expulsion cases. Thus, whenever substantial grounds have been shown for believing that an individual would face a real risk of being subjected to treatment contrary to Article 3 if removed to another State, the responsibility of the Contracting State to safeguard him or her against such treatment is engaged in the event of expulsion…. In these circumstances, the activities of the individual in question, however undesirable or dangerous cannot be a material consideration. The protection afforded by Article 3 is thus wider than that provided by Articles 32 and 33 of the United Nations 1951 Convention on the Status of Refugees (see paragraph 61 above).

81. Paragraph 88 of the Court’s. …Soering judgment, which concerned extradition to the United States, (where the applicant could face the death penalty) clearly and forcefully expresses the above view. It should not be inferred from the Court's remarks concerning the risk of undermining the foundations of extradition, as set out in paragraph 89 of the same judgment, that there is any room for balancing the risk of ill-treatment against the reasons for expulsion in determining whether a State's responsibility under Article 3 is engaged.

82. It follows from the above that it is not necessary for the Court to enter into a consideration of the Government's untested, but no doubt bona fide, allegations about the first applicant's terrorist activities and the threat posed by him to national security.

This powerful case is likely to bind the English Courts, no wonder Blair is concerned. I suspect the court will give little weight to the Memoranda of Understanding (MOU) given by states where torture is endemic in the legal system. The letter by Human Rights Watch to the Prime Minister of Jordan says it all.

posted by Tony @ Friday, August 12, 2005