Joint Committee On Human Rights Nineteenth Report

2  The prohibition on torture

13. The prohibition on torture and inhuman and degrading treatment is one of a small number of human rights guarantees which are absolute and non-derogable in all circumstances, including in time of war or public emergency. The absolute nature of the prohibition on torture is recognised as a principle of jus cogens, the highest form of customary international law, which is binding on all states in all circumstances, irrespective of treaty obligations. The nature of the prohibition is also made clear in Article 2.2 of the Convention Against Torture:

No exceptional circumstances whatsoever, whether a state of war or a threat of war, internal political instability or any other public emergency, may be invoked as a justification of torture.

14. "Torture" is defined in UNCAT Article 1:

Any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions.

15. The Convention also prohibits in absolute terms treatment which falls short of the deliberate infliction of severe pain or suffering amounting to torture, but which is inhuman and degrading. Article 16 provides:

Each State Party shall undertake to prevent in any territory under its jurisdiction other acts of cruel, inhuman or degrading treatment or punishment which do not amount to torture as defined in Article 1, when such acts are committed by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity.

16. In UK domestic law, and in particular under Article 3 ECHR given force in UK law by the Human Rights Act, both torture and inhuman or degrading treatment are absolutely prohibited in similar terms to UNCAT. To be considered inhuman and degrading under Article 3 ECHR, treatment must attain a minimum level of severity, which is assessed on the basis of all the circumstances of the case including the sex, age and health of the victim.[24] Inhuman treatment includes at least such treatment as deliberately causes severe suffering, mental or physical, which in the particular situation, is unjustifiable.[25] As well as physical ill-treatment, inhuman and degrading treatment may result from harsh or inadequate prison conditions,[26] or inadequate medical treatment in detention.[27]

17. To amount to torture under Article 3 ECHR, as well as under UNCAT, treatment must be deliberately inflicted. In Selmouni v France[28] the European Court of Human Rights (ECtHR), relying on the terms of Articles 1 and 16 UNCAT, distinguished torture as "deliberate inhuman treatment causing very serious and cruel suffering".[29] The threshold for identifying treatment as "torture" rather than "inhuman or degrading treatment" is a high one: the "five techniques" of interrogation practised in Northern Ireland in the 1970s were, for example, found by the ECtHR not to amount to torture, although they did constitute inhuman and degrading treatment in breach of Article 3 ECHR. However, both the ECtHR and the House of Lords[30] have since suggested that given "the increasingly high standard being required in the area of the protection of human rights"[31] conduct which was previously found to amount only to inhuman and degrading treatment, such as that at issue in Ireland v UK, might now be considered to be torture.

18. The definition of the crime of torture under the Criminal Justice Act 1988, and its relationship with the concept of torture set out in UNCAT has been the cause of some uncertainty. Under UNCAT, states are required only to criminalise conduct falling within the Article 1 definition of torture: that is, severe pain or suffering deliberately inflicted for a specified purpose. The crime of torture under section 134 of the Criminal Justice Act appears to go further, however, in encompassing pain not deliberately inflicted. This apparently wide scope is balanced by the availability of defences to the crime of torture under that section. We discuss the law relating to the crime of torture and the defences to it in more detail in Chapter 3 below.

The principle in Chahal v UK

19. In the jurisprudence of the ECtHR, one of the cornerstones of the absolute prohibition on torture, which reflects the absolute prohibition in the Convention Against Torture, is the principle established in the case of Chahal v UK.[32] The judgment in that case establishes that a person may not be deported to a country where they will face a real risk of torture or inhuman or degrading treatment. The Court affirmed the absolute nature of the prohibition on torture and inhuman and degrading treatment as applying irrespective of public emergency or terrorist threat.[33] It held that:

The prohibition provided by Article 3 against ill-treatment is equally absolute in expulsion cases. 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.[34]

20. A minority of the Court in Chahal[35] adopted a different interpretation of Article 3 ECHR. It found that, in deciding whether to deport, a State can balance, on the one hand, the nature of the threat to its national security interests if the person concerned were to remain and, on the other hand, the extent of the potential risk of ill-treatment of that person following expulsion.[36] On this approach, where, on the evidence, there is a "substantial doubt" as to whether the person would be subjected to torture or inhuman or degrading treatment on return, the threat to security could be sufficient to justify deportation.[37]

21. The Government has called into question the appropriateness of the principle in Chahal, in the circumstances of the terrorist threat currently faced by European states. It considers that the approach of the minority of the Court in that case is the appropriate approach in light of the prevailing terrorist threat.[38] In order to advance this argument before the Court, the Government is intervening, along with the Governments of Lithuania, Portugal and Slovakia, in the case of Ramzy v The Netherlands, [39] concerning the proposed deportation of the applicant from the Netherlands to Algeria, where it is alleged that he will face torture.[40] A coalition of NGOs is intervening in support of the principle established in by the majority in Chahal v UK.[41]

22. The principle established in the Chahal case reflects Article 3 UNCAT which states that no one shall be expelled to a place where there are substantial grounds for believing that he would be in danger of being subjected to torture. Under Article 3.2, this danger is to be assessed both in light of the applicant's particular circumstances, and where applicable with regard to "the existence in the State concerned of a consistent pattern of gross, flagrant or mass violations of human rights." The terms of Article 3 and the UK's compliance with them are considered further in Chapter 5 below.

23. The absolute prohibition of deportation to face a risk of torture has been challenged in other jurisdictions, notably in Canada. In Suresh v Canada,[42] the Canadian Supreme Court, while acknowledging the clear position under international law prohibiting deportations to face torture, nevertheless stated on an application of section 1 of the Canadian Charter of Rights and Freedoms: "[w]e do not exclude the possibility that in exceptional circumstances, deportation to face torture might be justified".[43] In a case decided by the New Zealand Supreme Court in June 2005, however, Attorney General v Zaoui,[44] the Supreme Court of New Zealand distinguished Suresh as applying only to the interpretation of the Canadian Charter, and held, interpreting the New Zealand Bill of Rights in light of guarantees under the International Covenant on Civil and Political Rights and the Convention Against Torture, that the right not to be deported to face torture could not be balanced against considerations of national security.[45]

24. The Government has stated that it does not wish to tamper with the absolute nature of the prohibition of torture or deportation to face torture.[46] Such statements sit uneasily, however, with the argument made in the Government's intervention in Ramzy, which advocates the revision of Chahal on the grounds that:

If [the Chahal] judgment is accepted as currently understood, in a case in which substantial grounds are shown for believing that there is a real risk of ill-treatment in a receiving State, it is not possible to remove a person believed to threaten the Contracting State and its citizens through terrorism.[47]

25. This explicitly advocates the permissibility of deportation to face a real risk of torture. It is an argument which has far-reaching consequences for protection against torture. There must also be concern that any dilution of the absolute prohibition on torture in cases involving national security considerations will have an impact beyond that category of cases, and lead to a further erosion of the absolute nature of the right to freedom from torture, in cases where other pressing policy considerations apply.[48] Indeed, in Canada the Suresh exception has been relied on by the federal Government to justify deportation of a convicted criminal on grounds of public safety rather than national security.[49]

26. Whilst we acknowledge the Government's right to intervene in any appropriate case before the European Court of Human Rights, we are concerned that the intervention in Ramzy v Netherlands, in arguing for deportations of terrorist suspects despite a real risk of torture on their return, may send a signal that the absolute prohibition on torture may in some circumstances be overruled by national security considerations. We reiterate our view[50] that the absolute nature of the prohibition on torture precludes any balancing exercise between considerations of national security and the risk of torture. In our view, the principle established in Chahal v UK is essential to effective protection against torture, and accordingly should be maintained and respected.

27. We consider it unlikely that the Government will succeed in its attempt to secure a revision of the Chahal decision. We note that even if the Government were to succeed, the absolute prohibition on torture, and on expulsion to face a real risk of torture, would in any event remain binding on the Government under the Convention Against Torture, and any expulsion carried out despite a real risk of torture or inhuman or degrading treatment would be likely to breach these obligations

24   Ireland v UK 2 EHRR 25 Back

25   The Greek case (1969) 12 YB 1; Price v UK (2002) 34 EHRR 53 Back

26   Kalashnikov v Russia; Peers v Greece 28524/95 Back

27   McGlinchey v UK Back

28   (2000) 29 EHRR 403 Back

29   See further, Ireland v UK, op. cit.; Aksoy v Turkey, 23 EHRR 553 Back

30   A v SSHD Back

31   Selmouni v France, op. cit. Back

32   (1997) 23 EHRR 413 Back

33   Ibid., para 79 Back

34   Ibid., para 80 Back

35   Joint Partly Dissenting Opinion of Judges Gölcüklü, Matscher, Freeland, Baka, Gotchev, Bonnici and Levits Back

36   Ibid., para 1 Back

37   IbidBack

38   Rt Hon Charles Clarke MP, Speech to the European Parliament, 7 September 2005 Back

39   Application no 25424/05 Back

40   Registry of the European Court of Human Rights, Press Release, Application lodged with the Court Ramzy v The Netherlands, 20 October 2005 Back

41   Application No 25424/05, Ramzy v Netherlands, Written Comments by Amnesty International, The Association for the Prevention of Torture, Human Rights Watch, Interights, The International Commission of Jurists, Open Society Justice Initiative and Redress, 22 November 2005 Back

42   Manickavasagam Suresh v Minister of Citizenship and Immigration and the Attorney General of Canada (Suresh v Canada), 2002, SCC 1, File No. 27790, January 11, 2002. The "Suresh exception" has not as yet led to any actual deportations, but is being relied on by the Canadian Government in a number of cases in which it is seeking to deport individuals regarded as a threat to national security notwithstanding that there is a real risk of their being tortured in the destination state. Some of these cases are pending before the Supreme Court of Canada. Back

43   Ibid., para 78. Section 1 of the Canadian Charter provides that the rights and freedoms set out in it are guaranteed "subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society" and has been interpreted by the Supreme Court of Canada as involving an assessment of proportionality in its application to all rights, in contrast to Article 3 ECHR and UNCAT. Back

44   [2005] NZSC 38 Back

45   paras 90-93 Back

46   Third Report of Session 2005-06, Counter-Terrorism Policy and Human Rights: Terrorism Bill and related matters, HL Paper 75-II, HC 561-II, Ev 1-15 Back

47   Observations of the Governments of Lithuania, Portugal, Slovakia and the UK Intervening in Application No 25424/05 Ramzy v The Netherlands, Document previously circulated, para12 Back

48   Human Rights Watch pointed out in oral evidence that the implications of a revision of Chahal would be likely to be widely felt, beyond cases involving questions of national security, and extending to deportations of non-nationals in general: Q 37 Back

49   Dadar v Minister of Citizenship and Immigration, 2006 FC 382 (24 March 2006).The case concerned the proposed deportation of an Iranian national who had served a 6 year sentence for aggravated assault. The Court found that there was no risk of torture on return and therefore did not have to decide whether the Suresh exception applied Back

50   Third Report of Session 2005-06, op. cit., para 149 Back

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