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 
