(Application no. 13163/87; 13164/87; 13165/87; 13447/87; 13448/87)
30 October 1991
AS TO THE LAW
ALLEGED BREACH OF ARTICLE 3 (art. 3)
101. The applicants alleged that their removal to Sri Lanka in February 1988 amounted to inhuman and degrading treatment in breach of Article 3 (art. 3) which reads as follows:
"No one shall be subjected to torture or to inhuman or degrading treatment or punishment."
Applicability of Article 3 (art. 3) in expulsion cases
102. At the outset, the Court observes that Contracting States have the right, as a matter of well-established international law and subject to their treaty obligations including Article 3 (art. 3), to control the entry, residence and expulsion of aliens (see the Moustaquim judgment of 18 February 1991, Series A no. 193, p. 19, para. 43, and the authorities cited therein). Moreover, it must be noted that the right to political asylum is not contained in either the Convention or its Protocols. This is borne out by several recommendations of the Assembly of the Council of Europe on the right of asylum (see Recommendation 293 (1961), Texts Adopted, 30th Ordinary Session, 21-28 September 1961, and Recommendation 434 (1965), Yearbook of the Convention, Vol. 8, pp. 56-57 ) as well as a subsequent resolution and declaration of the Committee of Ministers (see Resolution 67 (14), Yearbook of the Convention, Vol. 10, pp. 104-105 , and Declaration on Territorial Asylum, adopted on 18 November 1977, Collected Texts, 1987 edition, p. 202).
103. In its Cruz Varas judgment of 20 March 1991 the Court held that expulsion by a Contracting State of an asylum seeker may give rise to an issue under Article 3 (art. 3), and hence engage the responsibility of that State under the Convention, where substantial grounds have been shown for believing that the person concerned faced a real risk of being subjected to torture or to inhuman or degrading treatment or punishment in the country to which he was returned (Series A no. 201, p. 28, paras. 69 and 70).
Application of Article 3 (art. 3) in the circumstances of the case
General approach to assessing the risk of ill-treatment
107. In its Cruz Varas judgment of 20 March 1991 the Court noted the following principles relevant to its assessment of the risk of ill-treatment (Series A no. 201, pp. 29-31, paras. 75-76 and 83):
(1) In determining whether substantial grounds have been shown for believing the existence of a real risk of treatment contrary to Article 3 (art. 3) the Court will assess the issue in the light of all the material placed before it or, if necessary, material obtained proprio motu;
(2) Further, since the nature of the Contracting StatesÕ responsibility under Article 3 (art. 3) in cases of this kind lies in the act of exposing an individual to the risk of ill-treatment, the existence of the risk must be assessed primarily with reference to those facts which were known or ought to have been known to the Contracting State at the time of the expulsion; the Court is not precluded, however, from having regard to information which comes to light subsequent to the expulsion. This may be of value in confirming or refuting the appreciation that has been made by the Contracting Party or the well-foundedness or otherwise of an applicantÕs fears;
(3) Ill-treatment must attain a minimum level of severity if it is to fall within the scope of Article 3 (art. 3). The assessment of this minimum, is, in the nature of things, relative; it depends on all the circumstances of the case.
108. The CourtÕs examination of the existence of a risk of ill-treatment in breach of Article 3 (art. 3) at the relevant time must necessarily be a rigorous one in view of the absolute character of this provision and the fact that it enshrines one of the fundamental values of the democratic societies making up the Council of Europe (see the Soering judgment of 7 July 1989, Series A no. 161, p. 34, para. 88). It follows from the above principles that the examination of this issue in the present case must focus on the foreseeable consequences of the removal of the applicants to Sri Lanka in the light of the general situation there in February 1988 as well as on their personal circumstances.
Whether the removal of the applicants exposed them to a real risk of inhuman treatment
109. In the light of the CommissionÕs report and the observations thereon by the applicants and the Government it seems clear that by February 1988 there was an improvement in the situation in the north and east of Sri Lanka - the main areas of disturbance. The IPFK had, in accordance with the Accord of July 1987, taken over from the Sinhalese dominated security forces in these areas and the major fighting at Jaffna had ended.
Although large parts of the country remained quiet, occasional fighting still took place in the north and east of Sri Lanka between units of the IPKF and Tamil militants who rejected the Accord. In these areas there was a persistent threat of violence and a risk that civilians might become caught up in the fighting (see paragraphs 74-75 above).
110. Nevertheless, the UNHCR voluntary repatriation programme which had begun to operate at the end of December 1987 provides a strong indication that by February 1988 the situation had improved sufficiently to enable large numbers of Tamils to be repatriated to Sri Lanka notwithstanding the continued existence of civil disturbance. It also appears that many others returned by their own means (see paragraph 76 above).
111. The evidence before the Court concerning the background of the applicants, as well as the general situation, does not establish that their personal position was any worse than the generality of other members of the Tamil community or other young male Tamils who were returning to their country. Since the situation was still unsettled there existed the possibility that they might be detained and ill-treated as appears to have occurred previously in the cases of some of the applicants (see paragraphs 10, 22 and 33 above). A mere possibility of ill-treatment, however, in such circumstances, is not in itself sufficient to give rise to a breach of Article 3 (art. 3).
112. It is claimed that the second, third and fourth applicants were in fact subjected to ill-treatment following their return (see paragraphs 28-29, 43 and 56 above). Be that as it may, however, there existed no special distinguishing features in their cases that could or ought to have enabled the Secretary of State to foresee that they would be treated in this way.
113. In addition, the removal to Sri Lanka of the fourth and fifth applicants without identity cards is open to criticism on the basis that it was likely to make travelling more difficult for them because of the existence of numerous army checkpoints. It cannot be said however that this fact alone exposed them to a real risk of treatment going beyond the threshold set by Article 3 (art. 3).
114. The Court also attaches importance to the knowledge and experience that the United Kingdom authorities had in dealing with large numbers of asylum seekers from Sri Lanka, many of whom were granted leave to stay, and to the fact that the personal circumstances of each applicant had been carefully considered by the Secretary of State in the light of a substantial body of material concerning the current situation in Sri Lanka and the position of the Tamil community within it (see the above-mentioned Cruz Varas judgment, Series A no. 201, p. 31, para. 81, and paragraphs 5, 17, 34, 46, 57, 77-79 and 97 above).
115. In the light of these considerations the Court finds that substantial grounds have not been established for believing that the applicants would be exposed to a real risk of being subjected to inhuman or degrading treatment within the meaning of Article 3 (art. 3) on their return to Sri Lanka in February 1988.
116. Accordingly, there has been no breach of Article 3 (art. 3).
ALLEGED BREACH OF ARTICLE 13 (art. 13)
117. The applicants further alleged that they had no effective remedy in the United Kingdom in respect of their Article 3 (art. 3) complaint as required by Article 13 (art. 13) which reads as follows:
"Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity."
118. In their submission, in judicial review proceedings the courts do not control the merits of the Secretary of StateÕs refusal of asylum but only the manner in which the decision on the merits was taken. In particular, they do not ascertain whether the Secretary of State was correct in his assessment of the risks to which those concerned would be subjected. Moreover, the courts have constantly stated that in reviewing the exercise of discretion in such cases they will not substitute their views on the merits of the case for that of the Secretary of State.
The applicants accepted that judicial review might be an effective remedy where, as in the Soering case (above-mentioned judgment of 7 July 1989, Series A no. 161), the facts were not in dispute between the parties and the issue was whether the decision was such that no reasonable Secretary of State could have made it. However, this was not so in their case where the question of the risks to which they would be exposed if sent back to Sri Lanka was the very substance of the dispute with the Secretary of State.
119. The Commission agreed with the applicants, observing that in asylum cases judicial review of the reasonableness of the asylum seekersÕ fear of persecution should be a thorough one.
120. The Government considered that judicial review proceedings provided an effective remedy in respect of a complaint under Article 3 (art. 3) as the Court had found in its Soering judgment (loc. cit., pp. 46-48, paras. 116-124), there being no material difference in that respect between that case and the present one. It was not accepted that the evidential issues in the Soering case were less complex or that there was no dispute between the parties as to the risk of the applicant facing inhuman and degrading treatment. In both cases the issues were the same, namely, whether there existed a real and substantial risk that the applicants would be exposed to inhuman and degrading treatment. It was open to the applicants on the basis of objections now advanced to the Secretary of StateÕs decisions to challenge those decisions, on the ground of "Wednesbury unreasonableness" but they did not do so. Judicial review on this ground does have the effect of controlling the merits of the Secretary of StateÕs decision, as illustrated by the Bugdaycay Jeyakumaran and Yemoh cases (see paragraph 91 above), and is, in the circumstances, a sufficient means of doing so.
121. It is not disputed before the Court that the applicantsÕ claim under Article 3 (art. 3) was an "arguable" one on its merits (see, inter alia, the Boyle and Rice judgment of 27 April 1988, Series A no. 131, p. 23, para. 52).
122. Article 13 (art. 13) guarantees the availability of a remedy at national level to enforce the substance of the Convention rights and freedoms in whatever form they may happen to be secured in the domestic legal order (ibid.). Its effect is thus to require the provision of a domestic remedy allowing the competent "national authority" both to deal with the substance of the relevant Convention complaint and to grant appropriate relief (see, inter alia, the above-mentioned Soering judgment, Series A no. 161, p. 47, para. 120). However, Article 13 (art. 13) does not go so far as to require any particular form of remedy, Contracting States being afforded a margin of discretion in conforming to their obligations under this provision. Nor does the effectiveness of a remedy for the purposes of Article 13 (art. 13) depend on the certainty of a favourable outcome for the applicant (see the Swedish Engine DriversÕ Union judgment of 6 February 1976, Series A no. 20, p. 18, para. 50).
123. In its Soering judgment of 7 July 1989 (loc. cit., pp. 47-48, paras. 121 and 124) the Court considered judicial review proceedings to be an effective remedy in relation to Mr SoeringÕs complaint. It was satisfied that the English courts could review the "reasonableness" of an extradition decision in the light of the kind of factors relied on by the applicant before the Convention institutions in the context of Article 3 (art. 3). In particular, it noted that in judicial review proceedings a court may rule the exercise of executive discretion unlawful on the ground that it is tainted with illegality, irrationality or procedural impropriety and that the test of "irrationality" on the basis of the "Wednesbury principles" would be that no reasonable Secretary of State could have made an order for surrender in the circumstances. Further, according to the United Kingdom Government, a court would have jurisdiction to quash a challenged decision to send a fugitive to a country where it was established that there was a serious risk of inhuman or degrading treatment, on the ground that in all the circumstances of the case the decision was one that no reasonable Secretary of State could take.
124. The Court does not consider that there are any material differences between the present case and the Soering case which should lead it to reach a different conclusion in this respect.
125. It is not in dispute that the English courts are able in asylum cases to review the Secretary of StateÕs refusal to grant asylum with reference to the same principles of judicial review as considered in the Soering case and to quash a decision in similar circumstances and that they have done so in decided cases (see paragraphs 89-91 above). Indeed the courts have stressed their special responsibility to subject administrative decisions in this area to the most anxious scrutiny where an applicantÕs life or liberty may be at risk (see paragraph 91 above). Moreover, the practice is that an asylum seeker will not be removed from the United Kingdom until proceedings are complete once he has obtained leave to apply for judicial review (see paragraph 92 above).
126. While it is true that there are limitations to the powers of the courts in judicial review proceedings (see paragraphs 89-92 above) the Court is of the opinion that these powers, exercisable as they are by the highest tribunals in the land, do provide an effective degree of control over the decisions of the administrative authorities in asylum cases and are sufficient to satisfy the requirements of Article 13 (art. 13).
127. The applicants thus had available to them an effective remedy in relation to their complaint under Article 3 (art. 3). There is accordingly no breach of Article 13 (art. 13).
1. Holds by eight votes to one that there has been no violation of Article 3 (art. 3);
2. Holds by seven votes to two that there has been no violation of Article 13 (art. 13).