OBSERVATIONS OF THE GOVERNMENTS OF LITHUANIA,
PORTUGAL, SLOVAKIA AND THE UNITED KINGDOM INTERVENING IN APPLICATION
NO 25424/05 RAMZY v THE NETHERLANDS
1. This case is illustrative of a problem
faced by Contracting States that is increasingly acute. A person
is present in the territory of a Contracting State. The Contracting
State wishes to remove the person on the basis that he poses a
threat to the citizens and security of the State because of involvement
in terrorist activities. Yet the person who is judged to pose
this threat claims that he faces the possibility of ill-treatment
prohibited by Article 3 in the only State to which it would be
possible to remove him.
2. The question the Governments of Lithuania,
Portugal, Slovakia and the United Kingdom ("the Governments")
invite the Court to consider is whether, recognising the increased
and major threat posed by international terrorism, it is appropriate
of justified to maintain the principle that in the situation outlined
above there is only a single relevant issue, namely whether or
not substantial grounds have been shown for believing that the
person concerned would face a real risk of being subjected to
treatment contrary to Article 3 in the receiving State. On that
basis, it can never be appropriate even to take into account as
relevant the fact, nature or degree of the national security threat
posed by an individual. That appears to have been the conclusion
of the majority of the Court in Chahal v the United Kingdom,
Judgment of 25 October 1996 (paragraph 81). The practical difficulty
encountered by Contracting States is caused both by the absolute
nature of the prohibition against removal and by the relatively
low threshold of risk that needs to be demonstrated before it
3. The Governments' position is that:
no challenge is made to the absolute
nature of the prohibition in Article 3 against a Contracting State
itself subjecting an individual to Article 3 ill-treatment;
however, the context of removal involves
assessments of risk of ill-treatment, and needs to afford proper
weight to the fundamental rights of the citizens of Contracting
States who are threatened by terrorism;
it is necessary and appropriate for
all the circumstances of a particular case to be taken into account
in deciding whether or not a removal in the situation set out
above is, or is not, compatible with the Conventionnational
security considerations cannot simply be dismissed as irrelevant
in this context.
4. It is necessary to start by identifying
the Convention rights and obligations that are in play in this
5. The first set of rights comprises those
of the citizens of the Contracting State. The threat posed by
individuals who choose to involve themselves in terrorist activities
strikes at the heart of the Convention scheme and at the core
values the Convention is designed to protect. The right to life
is the necessary foundation for the enjoyment of any human rights.
It is that right, as enjoyed by members of the public, which is
destroyed by the actions of terrorists when they carry out attacks,
often with the object of indiscriminately killing as many people
as possible. More generally, terrorism seeks to attack the foundations
of life in a democratic society by terrorising all those living
in it and dislocating daily life to the maximum extent possible.
6. The corresponding obligation on Contracting
States, and their democratically elected Governments, to take
the measures needed to protect the fundamental rights of everyone
within their jurisdiction against terrorist acts, especially those
threatening the right to life, is a heavy one.
7. It is important in considering the rights
of the citizens of the Contracting State to have regard to the
nature of the threat currently posed by terrorism, notably by
organisations such as Al Qaida. Three particular matters are to
The threat is a real one. Terrorists,
including those supporting extremist organisations such as Al
Qaida, have shown the willingness and the capacity to kill and
maim members of the public.
The threat is also of a particularly
serious kind. It involves concerted efforts to cause terrorist
outrages by well-organised groups and networks. It involves the
use of individuals who are prepared themselves to die in perpetrating
such outrages. For obvious reasons, that makes the threat all
the more difficult to protect against. It also involves the well-publicised
threatened use of chemical, nuclear, radiological or biological
materialin other words of atrocities of the most serious
and appalling kind.
There has been a significant increase
in the level of threat in recent years with no current sign of
8. The second set of rights comprises those
of an individual whose removal is contemplated. It is acknowledged
that the Convention rights of such persons may be engaged by removal.
No challenge is sought to be made to this principle, or to the
development of the principles applicable in this field in cases
in which terrorism threatening the Convention rights of citizens
of the Contracting State is not in issue (eg Soering v the
United Kingdom, Judgment of 7 July 1989; Vilvarajah v the
United Kingdom, Judgment of 30 October 1991).
9. However, it needs to be clearly recognised
that such rights represent a significant extension of the provisions
of the Convention.
Traditionally, States have been entitled
under international law to protect themselves against threats
to national security from outside by the use of immigration laws
(ie controlling entry, removal etc).
The Convention includes no right
to asylum. That was evidently not an accidental omission. Rather,
asylum was dealt with at the time the Convention was first entered
into in the 1951 Convention on the Status of Refugees, the negotiations
leading up to both Conventions occurring at the same time.
The 1951 Convention, negotiated in
that way, is explicit that the right of asylum does not extend
to cases where there is a risk to national security. The protections
afforded by the 1951 Convention were expressly made unavailable
to those who acted contrary to the very purposes and principles
of the United Nations, for example by choosing to engage in terrorism
(see further paragraphs 26.3 and 26.4 below). In those circumstances,
it is difficult to see how those who negotiated and agreed both
Conventions can have intended that that position under the 1951
Convention should effectively be reversed by interpretation of
Article 3 of the Convention.
10. In considering the rights of the individual
whose removal is contemplated, the basis for the engagement of
a Contracting State's responsibility needs to be recognised. It
does not follow from the fact that Article 3 is "absolute"
in the context of treatment by a Contracting State of those within
its jurisdiction, that the same approach is appropriately to be
transposed into the very different context in which removal to
another State is contemplated in order to protect national security.
The right not to be removed to such
a State, corresponding to the State's obligation not to remove,
is "inherent" or implied, not expressly set out, in
Moreover, the State is not itself
subjecting the person to Article 3 ill-treatment. Such ill-treatment,
if it were to eventuate, would be at the hands of a foreign State
or the citizens of a foreign State. In most instances, this State
will be another State (not a Contracting State) outside the norms
of the ECHR. Further, reliance on Article 1 of the Convention
is needed in order for the responsibility (not to expose a person
to the risk of ill-treatment) to be engaged. The engagement of
responsibility is therefore analogous to a positive obligation
to prevent Article 3 ill-treatment.
As is well established in the Court's
jurisprudence, the principle of striking a fair balance between
the interests of an individual and the interests of the general
community underlies the whole of the Convention. The need to do
so has been particularly acknowledged and applied in the field
of inherent or implied obligations and of positive obligations
imposed on Contracting States (see eg Ilascu v Moldova and
Russia, Judgment of 8 July 2004, at para 332).
11. The majority's judgment in Chahal
creates real difficulties for Contracting States in the context
of protecting their citizens effectively against the threat of
terrorism. The Governments have a long-standing history and policy
of support for the Convention; and seek by this intervention to
address those difficulties in a way that properly balances the
various Convention rights in issue.
12. If that 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. That
is despite the fact that expulsion is the classic method by which
Contracting States have sought to protect themselves against foreign
nationals on their territories who are judged to be a threat to
national security (a procedure recognised by Article 5(1)(f) of
the Convention). The potential impediment to removal is likely
to arise in a significant number of the cases of those who currently
pose a major terrorist threat.
13. It may or may not be possible to overcome
the difficulties in practice, and so remove the individual.
The Contracting State can obtain
governmental assurances as to proper treatment of the individual
if returned to his home State. However, as Chahal itself
makes clear, Article 3 requires examination of whether such assurances
will achieve sufficient practical protection. Different conclusions
on the same material, as Chahal itself demonstrated, are
likely (compare the majority and minority judgments in that case).
A State other than the home State
of the individual concerned may be prepared to take him. However,
in almost all cases, this is unrealistic and so does not meet
the problem. If an individual is suspected of involvement in terrorism,
it is highly unlikely that any third State will be willing to
allow him to enter its territory.
14. If the individual commits a criminal
offence, there may be some scope for the Contracting State to
protect itself by trying him in the criminal courts for that offence,
and by the imposition of a criminal sentence for that offence.
But this does not offer a sufficient or effective route to ensure
that the terrorist threat posed by the individual is properly
dealt with. This is for a number of reasons:
An individual concerned in terrorism
may take great care not to commit any criminal offences until
the time comes for him to strike or provide material assistance
to his cause;
Any criminal offences he commits
may be only tangentially related to his terrorist intentions (eg
petty theft or fraud), and the sentence imposed must be appropriate
for the crime rather than based upon a preventive principle to
safeguard the public against a quite different activity and risk,
namely terrorist action;
Even if criminal offences are committed,
there may be insuperable impediments in the way of the authorities
in the Contracting State being able to rely upon secret intelligence
information in criminal proceedings in order to secure a conviction
(eg it may be impossible to rely upon evidence from an informant,
where the disclosure of that evidence would necessarily reveal
the informant's identity and place him at serious risk of harm
or murder); and
The evidence available to the authorities
may amply indicate that the individual in question does pose a
serious risk to national security through involvement in terrorism,
without enabling them to establish that he has engaged in such
activity to the level of proof beyond reasonable doubt, sufficient
to secure a criminal conviction. See also Lawless v Ireland
(No 3), Judgment of 1 July 1961, paras 35 and 36.
So recourse to the criminal law cannot provide
adequate protection for the public against the serious risk of
harm which the presence of the individual amongst them may pose.
15. A further way in which a Contracting
State may seek to ensure that there is adequate protection against
the risk of terrorism when dealing with such an individual is
by subjecting them to preventive measures of some kind. Detention
will unquestionably be the best and most effective safeguard for
the protection of the public and national security. That in itself
raises serious Convention issues as the derogation cases recently
decided by the House of Lords in the United Kingdom indicate.
It may or may not be that such detentions would be permissible
under Article 5(1)(f). In A & Others v the United Kingdom,
Application No 3455/05, the Government of the United Kingdom have
made submissions about the scope and effect of Article 5(1)(f).
Those are not repeated here. There may be other lesser measures,
such as surveillance or a system along the lines of control orders
restricting the movement and/or activities of particular individuals.
However, these provide at best partial protection for the public.
16. In these circumstances, it is understandable
that there should be serious concern about the point to which
the Court's jurisprudence has developed when viewed alongside
the risks currently posed by terrorism to the lives of citizens
of Contracting States.
17. It is necessary, in judging whether
the Chahal approach is necessary or appropriate, to have
regard to the fact that both (a) the degree and nature of any
risks in the receiving State and (b) the degree and nature of
the threat posed by an individual, are relative.
18. The degree of risk faced in the receiving
State in almost all cases will depend on a series of judgements
and evaluations. A necessarily uncertain prediction about future
events is required. The test of "substantial grounds for
believing that there is a real risk" is (a) (at least on
one view) a relatively low threshold, that is not requiring proof
beyond doubt or even on the balance of probabilities; but (b)
also inherently difficult to apply with consistency. In a case
which meets the test, there will still be questions of degree
involvedsome risks or threats being far clearer than others.
19. In considering the nature of the risk
faced in a receiving State, it is to be borne in mind that Article
3 applies not merely to cases at the extreme end of seriousness,
such as torture. Treatment falling within Article 3 exists in
a spectrum of seriousness. As is well established, a minimum level
of severity must be reached for a case to fall within Article
3. However, at the lower end of the spectrum, the concept of degrading
treatment is a relatively broad one. The greater the reach or
coverage of Article 3, the more pressing becomes the issue whether
a terrorist threat should be wholly left out of account.
20. The nature of the threat posed by an
individual to the citizens of the Contracting State, and the clarity
with which that threat is made out, may also vary. However, there
may be cases in which the threat is clear, imminent and extremely
21. It is legitimate to test the validity
of the approach in Chahal against examples at the ends
of the spectrums involved. Take, as but one example, a case in
which (a) there were substantial grounds for believing that there
was a real risk of a form of degrading treatment that would just
cross the Article 3 minimum level of severity; but (b) there was
powerful intelligence from an informer of imminent involvement
in a terrorist attack of the most serious kind.
22. The Governments submit that the approach
in Chahal needs to be, and consistently with fundamental
Convention principles can be, adapted or clarified to meet the
threat posed by international terrorism. Two submissions are made
as to how that should be done:
First, it is submitted that, in the
context of removal of a person who poses a national security risk,
the threat posed by the person whose removal is being considered
can and should be a relevant factor to be weighed against the
possibility and nature of any feared ill-treatment.
Secondly, it is submitted that national
security considerations can have an impact on the threshold to
be overcome by a person who is to be removed.
23. Five particular matters are relied on
in support of the first submission.
24. First, an approach that recognises the
relative nature of the issues, and does not exclude one set of
rights as irrelevant, would allow all the human rights in play
to be properly weighed and respected. As to this:
The absolute approach affords no
weight whatever to the rights of those whose lives (and thus Article
2 rights) might be significantly protected by the removal of a
person believed to pose a terrorist threat.
The fact that both the degree and
nature of the risks faced in the receiving State and the degree
and nature of the risks posed in the Contracting State exist in
a spectrum indicates that it is likely to be difficult if not
impossible properly to balance the competing rights in play without
having regard to the particular facts of the case. Suppose for
example that a person had just surmounted the substantial grounds
for believing that there was a real risk of say corporal punishment
on a single occasion (eg Tyrer v the United Kingdom, Judgment
dated 25 April 1978) or any physical force by persons in authority
that might not be strictly necessary (eg Ribitsch v Austria,
Judgment dated 4 December 1995) or that he might be detained for
a relatively short period in prison conditions that might be considered
degrading (Becciev v Moldova, Judgment dated 4 October
2005). On the absolute approach national security and the particular
risks to life posed by that person would become irrelevant. Suppose
then that the facts indicated substantial grounds of a compelling
kind for believing that there was a real risk that the person
concerned would involve himself in bombing the London Underground
during rush hour. It may fairly be asked how the Convention rights
of all concerned could be said to be properly balanced and protected
by an absolute prohibition on removal. The Governments submit
that the risk of such treatment could not suffice to override
the right of the State to protect its citizens from serious risks
involving the potential for injury and death.
There are circumstances in which
it might be contended that removal is incompatible with other
obligations imposed by the Convention, for example that on return
to his home state the person concerned would face a flagrant denial
of justice (as contemplated in Soering). The Court has
not yet confronted a case where it has had to decide whether there
is an absolute porhibition against removal in such circumstances
or whether risks to the Contracting State posed by, say, a person
engaged in terrorist activities can be balanced against his Article
6 rights. The Governments would submit that in such a case there
would be no credible agrument against engaging in a balancing
25. Secondly, the absolute approach is inconsistent
with the nature of the obligation on a Contracting State in this
It is accepted that the obligation
on a State not itself to subject a person to Article 3 ill-treatment
is absolute. However, as set out in paragraph 10 above, the obligation
not to return an alien to a place where there are substantial
grounds for believing that a real risk of such treatment exists
is an obligation that is (a) inherent or implied and not express
and (b) in substance a positive obligation (or at least closely
analogous to one). Inherent or implied obligations have consistently
been recognised as permitting implied limitations if warranted
having regard to the context and case. Positive obligations have
also consistently been treated as involving a balanced consideration
of all the circumstances and an assessment of how it would be
reasonable for a Contracting State to act: DP & JC v the
United Kingdom, Judgment dated 10 October 2002.
Moreover, where, as here, the context
involves competing Convention rights (ie the Article 3 rights
of the person to be removed and, amongst others, the Article 2/3
rights of members of the public), an appropriate balancing exercise
The Court in Soering reiterated
that "inherent in the whole of the Convention is a search
for a fair balance between the demands of the general interest
of the community and the requirements of the protection of the
individual's fundamental rights" (para 89). It is submitted
that the recognition was all the more apt in a context involving
an inherent obligation which was positive in nature and in a context
in which rights of equal seriousness both need protection. The
approach of the Court in Chahal is hard to reconcile with
The approach sits uneasily with the
Court's approach to claims of torture and other expressly forbidden
behaviour under Article 3, where a complainant must establish
the alleged ill-treatment beyond reasonable doubt.
26. Thirdly, the absolute approach is not
supported by universally applied international law. International
law has long recognised that the right of an alien to refuge is
subject to necessary qualifications.
The right of states both to control
immigration and, more specifically, to protect their citizens
by expulsion of aliens who pose a threat to national security
is long recognised (see eg Chahal v the United Kingdom at
Grotius in "De Jure Belli ac
Pacis" (1623) stated that asylum is to be enjoyed by people
"who suffer from undeserved enmity, not those who have done
something that is injurious to human society or to other men".
Recognition of such qualifications
is to be found in the express terms of Articles 32 and 33 of the
1951 Convention. The benefit of the rule against return may not
be claimed "by a refugee whom there are reasonable grounds
for regarding as a danger to the security of the country in which
he is . . ." (Article 33(2)).
Further, Article 1F(c) of the 1951
Convention provides that: "The provisions of this Convention
shall not apply to any person with respect to whom there are serious
reasons for considering that . . . [h]e has been guilty of acts
contrary to the purposes and principles of the United Nations."
UN resolutions (eg UN Security Council Resolutions 1373 (2001),
paragraph 5 and 1368 (2001)) make clear that acts, methods and
practices of terrorism, and knowingly financing, planning and
inciting acts of terrorism, are contrary to the purposes and principles
of the United Nations.
It is acknowledged that the Torture
Convention has been interpreted as imposing an absolute approach.
However, (a) it is by no means clear that the drafting of the
relevant part of the Torture Convention supports such an interpretation;
(b) the interpretations of the Committee Against Torture are not
legally binding; and (c) in any event, it is to be noted that
that approach applies only in the case of torture.
27. Fourthly, the absolute approach does
not reflect a universally recognised moral imperative.
In principle, it is legitimate to
ask: why should it be irrelevant, in considering whether removal
would amount to inhuman or degrading treatment, that the person
to be removed himself posed a real risk to the lives of the citizens
in the Contracting State? It is also to be noted, if it is suggested
that to take any account of national security would be contrary
to a clear moral paradigm, that seven of the judges in Chahal
dissented on the Article 3 issue, holding that it was legitimate
in the context of removal for a fair balance to be struck taking
into account national security considerations. The Governments
submit that the dissenting judges were correct in their approach.
International law has recognised
not merely that national security can be a relevant factor, but
that national security can preclude a right to asylum altogether.
It would be surprising if the words of Article 33(2) of the 1951
Convention were found to fly in the face of such moral paradigm.
There are states in which the absolute
approach is not followed. In Canada, for example, national security
and the threat to citizens posed by the person to be removed are
treated as relevant: see, for example, Suresh  1
SCR 3,  SCC 1 and Sogi (2004) FC 853. As appears
below, in the United States a higher standard of proof of torture
is requiredan express understanding having been made by
the United States on entering into the Torture Convention.
The need for a balancing of the various
interests involved has been recognised in Soering (see
paragraph 24.3 above).
28. Fifthly, the absolute approach is not
supported by, and is inconsistent with, the evident intentions
of the original signatories to the Convention. It is doubtful
whether a right of asylum of any kind is appropriately to be implied
into Article 3 in circumstances in which asylum appears to have
been intentionally left to be dealt with in another Convention
(the 1951 Convention which was signed in 1951 by 26 mainly western
states). However, be that as it may, it is a significant further
step to interpret Article 3 as having inherent or implied within
it a right to asylum of a kind that requires national security
considerations to be ignored. There is no warrant for concluding
that that was intended, or would have been agreed to, by the Contracting
29. It is stressed that the Governments
do not submit that national security considerations will inevitably
permit removal of a person believed to present a threat on national
security grounds. The submission is a narrower one: national security
considerations cannot be dismissed as irrelevant, and may be taken
into account, in considering whether the removing, Contracting
State's responsibility should be engaged and it should be held
in violation of Article 3 by reason of removal. A considered judgement,
weighing all the circumstances, would need to be made in any particular
30. The Governments' second submission,
as set out above, is that national security considerations can
have an impact on the threshold to be overcome by a person who
is to be removed. In a case in which there is material indicating
a national security threat, it would be appropriate for it to
be shown more clearly, or to a higher standard, that a person
might be ill-treated.
31. It is to be noted that the Commission's
delegate in Chahal (Sir Nicolas Bratza) sought to explain
and give effect to para 89 of Soering by suggesting that
"where there were serious doubts as to the likelihood of
a person being subjected to treatment or punishment contrary to
Article 3, the benefit of the doubt could be given to the removing
State whose national interests were threatened by his continued
presence" (see para 78 of Chahal recording this position).
32. However, it is submitted that, if national
security is to affect the standard to which risks in the receiving
State need to be demonstrated, it would be appropriate (a) for
the standard of proof to be significantly higher (rather than
seeking to introduce a concept of "serious doubts" into
the already fluid concepts of "substantial grounds for believing"
and "real risk"); and (b) for this to be made clear.
33. There is doubt as to precisely what
standard is currently imposed by the "substantial grounds
for believing real risk" approach.
In F v the United Kingdom (Admissibility
Decision dated 31 August 2004) the Court equated it with likelihood
However, in practice, it appears
that a lower standard is applied by the Court than "more
likely than not".
34. It is to be noted in this context that
an understanding was made by the United States on entering into
the Torture Convention, to the effect that it understood the phrase
"where there are substantial grounds for believing that he
would be in danger of being subjected to torture" in Article
3 of the Torture Convention as meaning "if it is more likely
than not that he would be tortured". There have been not
objections to the understanding.
35. It is clearly established under Convention
jurisprudence (see for example H. v Sweden, Decision of
5 September 1994, 79-A D.R. 85) that the burden of establishing
the risk of ill-treatment is upon the applicant. He is required
to do so by the production of cogent grounds and not mere assertion.
36. It is submitted that the test, in a
case in which national security concerns arise, should at least
require the person to be removed to show that it is more likely
than not that he would be subjected to ill-treatment contrary
to Article 3. The formulation of a "more likely than not"
test would make clear that a different approach was to be followed
in national security cases. A considered judgement would then
need to be made having regard to the particular facts of individual
cases, and not by reference to generalisations. It is submitted
that such a test and such an approach would not set the standard
at a height likely to undermine the practical and effective protection
and safeguarding of applicants Article 3 rights; and would not
be inconsistent with a recognition of the importance of Article
3 in the hierarchy of Convention rights.
37. For these reasons, the Governments submit
that the Court should reconsider, and change, the approach and
principles set out at paras 79-82 of the majority's judgment in
Chahal. The need for a reconsideration of that approach
is especially evident in a context involving a heightened threat
of the most serious kind to the Article 2 rights of members of
Agent of the Government of Lithuania
da Silva Miguel
Agent of the Government of Portugal
Agent of the Government of the Slovak Republic
Agent for the Government of the United Kingdom
21 November 2005