Protection against expulsion under Article 3 of the European Convention on Human Rights

Abstract

Amnesty International reports on incidents of torture in 70 countries, and inhuman or degrading treatment or punishment is practised in an even greater number of states. Many persons from these states leave their home countries and seek refuge in Europe (and elsewhere). They often claim to be threatened with torture or other ill-treatment. Potential victims of such treatment are not always recognized as 'refugees' within the meaning of the Geneva Convention Relating to the Status of Refugees, which would otherwise protect them against refoulement? However, Article 3 of the European Convention on Human Rights can sometimes provide a measure of assistance. According to this provision 'no one shall be subjected to torture or to inhuman or degrading treatment or punishment'. The European Court of Human Rights held in its judgment in the 1989 Soering case that Article 3 prohibits the extradition of a person who is threatened with torture or inhuman or degrading treatment or punishment in the requesting country. Extradition in such circumstances would, according to the Court, 'plainly be contrary to the spirit and intendment of the Article' and would 'hardly be compatible with the underlying values of the Convention'. In two cases decided in 1991 the Court held that the same considerations apply to expulsion cases. Thus the Court confirmed the position held for about 30 years by the European Commission of Human Rights. The Court's reasoning is convincing and has been widely accepted. It is the purpose of this paper to examine the conditions under which a person can avoid forcible return under Article 3. Some procedural aspects will also be discussed. Recent case-law of the Strasbourg institutions will be reported and, where appropriate, commented on critically.