ECtHR: recent decisions on violation of art. 3 arising from expulsion/deportation

The European Court of Human Rights (ECtHR) has recently delivered two judgments concerning the violation of article 3 arising from the risk of ill-treatment of the claimants, if returned to their country of origin.

The first case, A. v. The Netherlands, originated in an application filed by a Libyan national, Mr A., in which he claimed that his expulsion to Libya, following an exclusion order imposed on him, would violate his rights under Article 3. A. entered The Netherlands in 1997 and applied, unsuccessfully, for asylum as he feared persecution, imprisonment, and possibly execution, in Libya for his involvement since 1988 in a clandestine opposition group. In 2002 he was arrested on suspicion of belonging to a group conducting jihad against the Netherlands, but eventually acquitted. In 2005 an exclusion order was imposed on him, as he was found to represent a danger to national security. A. claimed that his expulsion to Libya would expose him to the risk of ill treatment not only because of his involvement in the opposition group, but also because of the criminal proceedings taken against him in The Netherlands. Despite being eventually acquitted, his case had been broadly covered in the media and the Libyan authorities had been informed that he had been placed in aliens’ detention for removal purposes.

The Governments of Lithuania, Portugal, Slovakia and the United Kingdom suggested that, where a State presents evidence that an individual is a threat to national security, it should be up to the individual to prove that it is “more likely than not” that he would suffer a violation of Article 3. In addition, these Governments criticized the approach generally adopted by the Court, which does not allow for weighting the risk of ill treatment with the reasons for extradition.

The Court rejected the Governments’ arguments, reiterating that the prohibition of ill-treatment under Article 3 was absolute, and that it was not possible to weigh the risk of ill-treatment against the reasons put forward for the expulsion in order to determine whether the responsibility of a State was engaged under Article 3. Similarly, the Court noted that the existence of domestic laws and accession to international human rights treaties by a State which was not party to the Convention does not ensure adequate protection from ill-treatment, especially in cases (such as that of Libya) where reliable sources had reported practices contrary to the Convention, which were actively pursued or tolerated by the authorities. Therefore, the Court concluded that it was likely that, once extradited in Lybia, A. would be detained, risking ill treatment. Accordingly, the Court concluded that A.’s expulsion to Libya would breach Article 3.

The second case, N. v. Sweden, originated in an application by an Afghan national, Ms. N., in which she claimed that her deportation to Afghanistan would be in breach of Article 3. N. applied for asylum, together with her husband X., claiming that they had been persecuted in Afghanistan because X. had been a politically active member of the communist party. Their request was rejected, and N. appealed the decision, claiming that, as she had in the meantime separated from her husband and started an extra-marital relationship, she would risk social exclusion and possibly death if she returned to Afghanistan. Her appeal was also rejected.

Despite the reports  of serious human rights violations in Afghanistan, the Court did not find that they would suggest that there would be a violation of the Convention if N. were to return to that country. However, examining N.’s personal situation, the Court noted that women were at a particularly heightened risk of ill-treatment in Afghanistan if they were perceived as not conforming to the gender roles ascribed to them by society, tradition or the legal system there. Among other things, the Court noted that a recent law, the Shiite Personal Status Act of April 2009, required women to obey their husbands’ sexual demands and not to leave home without permission. Unaccompanied women, or women without a male “tutor”, faced continuous severe limitations to having a personal or professional life, and were doomed to social exclusion. They also often plainly lacked the means for survival if not protected by a male relative. Accordingly, the Court found that if N. were deported to Afghanistan, Sweden would be in violation of Article 3.

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