CHAHAL v. THE UNITED KINGDOM (70/1995/576/662) 15 November 1996: order for deportation to India of Sikh separatist for national security reasons - detention for six years pending deportation - adequacy of judicial review

United Kingdom - order for deportation to India of Sikh separatist for national security reasons - detention for six years pending deportation - adequacy of judicial review

I. Article 3 of the Convention

A. Applicability in expulsion cases

Expulsion may engage responsibility of State under Article 3 where substantial grounds shown for believing there would be real risk to deportee of torture or inhuman or degrading treatment or punishment in receiving country.

B. Cases involving alleged danger to national security

Article 3 provides absolute prohibition of torture - in expulsion cases, if substantial grounds shown for believing deportee would be at risk, his conduct cannot be material consideration.

C. Application to particular circumstances

1. Point of time for assessment of risk

Material time that of Court's consideration of case.

2. Assessment of risk

Government proposed to return first applicant, well-known supporter of Sikh separatism, to airport of choice in India - evidence relating to fate of Sikh militants outside state of Punjab therefore of particular relevance.

Court persuaded by evidence corroborated from different objective sources that until mid-1994 elements of Punjab police accustomed to act without regard to human rights of suspected Sikh militants, including pursuing them outside home state - no evidence of change of regime within Punjab police - despite recent improvement in human rights situation in Punjab and efforts of Indian authorities to bring about reform, problems persist with regard to observance of human rights by certain members of security forces in Punjab and elsewhere in India - against this background, assurances of the Indian Government inadequate guarantee of safety - applicant's high-profile likely to make him target of hard-line elements in security forces.

Conclusion: violation, in the event of decision to deport to India being implemented (twelve votes to seven).

II. Article 5 1 of the Convention

All that Article 5 1 (f) requires is that "action is being taken with a view to deportation" - immaterial whether detention can be reasonably considered necessary or whether underlying decision to expel justified.

However, if deportation proceedings not prosecuted with due diligence, detention will cease to be permissible - domestic proceedings commenced 16 August 1990 and ended 3 March 1994 - given exceptional circumstances and detailed consideration required by courts and executive, period not excessive.

In view of length of applicant's detention, necessary to consider whether sufficient guarantees against arbitrariness existed -in this context, advisory panel including experienced judicial figures which reviewed national security evidence in full, provided adequate guarantee that there were prima facie grounds for believing applicant to be security threat and thus that executive did not act arbitrarily in ordering his detention.

Conclusion: no violation (thirteen votes to six).

III. Article 5 4 of the Convention

Since Article 5 4 provides lex specialis in relation to more general requirements of Article 13, Court must consider it first.

Article 5 4 guarantees right to judicial review of sufficient width as to bear on conditions essential for "lawful" detention under Article 5 1.

Domestic courts not provided with information relating to national security and thus unable to review whether decision to detain applicant justified - given procedural short-comings of advisory panel, it could not be considered "court" for purposes of Article 5 4.

Court recognises that use of confidential material may be unavoidable where national security at stake - however, national authorities cannot be free from effective judicial control whenever they choose to assert that national security involved - technique can be employed to accommodate legitimate security concerns and individual procedural justice.

Conclusion: violation (unanimously).

V. Article 13 of the Convention

Judicial review and advisory panel procedure inadequate remedies for Article 3 complaint since could not review decision to deport with reference solely to question of risk to applicant, leaving aside national security considerations.

Conclusion: violation (unanimously).

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