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Case Summary of Saadi v Italy (2008) 24 BHRC 123, 125 -142 and Chahal v United Kingdom (1996) 23 EHRR 413, 74.
Both cases concern the deportation of individuals and the interaction of Article 3 of the European Convention of Human Rights.1 The aftermath of Soering v United Kingdom2 signalled a situation whereby any signatory State has to consider the consequences of returning an individual to a third country where he might face treatment that breaches the Convention. Both Chahal3 and Saadi4 represent examples of the application of Soering in deportation cases highlighting the fact that Article 3 imposes positive obligations on states, including the obligation not to return an individual to a country where they are likely to be subjected to treatment that violates the Convention.
In Chahal, Mr Chahal, an Indian citizen, illegally entered the UK in 1971 and three years later was given indefinite leave to remain under the terms of an amnesty for illegal entrants. He became a leading figure in the Sikh community and organised protests against the Indian Government. He was arrested several times on suspicion of conspiring to kill the Indian Prime Minister and moderate Sikhs in the UK, but was released without charge. The Home Secretary decided that Mr Chahal ought to be deported as his presence in the UK was contrary to the public good for reasons of national security and the international fight against terrorism. Before the Court, the British Government argued that the guarantees under Article 3 were not absolute where the applicant posed a threat to the national security of the Member State.5 This limitation, nonetheless, was not accepted by the ECtHR.6 Due to the outcome of the Chahal decision, some member states became increasingly unhappy with the restrictions Chahal placed on their ability to deport/extradite foreign nationals from their territories. This is why, in Saadi, the British government intervened as a third party to argue (with the support of the Italian government) that Chahal had caused governments many difficulties in practice and that the Court should adopt a new test that took account of the threat posed by the foreign national to the host member State.
Saadi concerns a Tunisian national, who entered Italy in the 1990s and, was granted a residence permit. In October 2002 he was arrested on suspicion of involvement in international terrorism and was decided that, after serving his sentence, Saadi was to be deported. In 2006 Saadi lodged an application with the ECtHR and asked the Court, as an interim measure to suspend or annul the decision to deport him to Tunisia claiming that terrorist suspects are frequently tortured in Tunisia and, that his family in Tunisia had received a number of visits from the police and was constantly subject to threats and provocations. In 2007, the Italian government asked the Tunisian government for diplomatic assurances that if Saadi were to be deported to Tunisia, he would not be subjected to treatment contrary to Article 3 of the ECHR and, would not suffer a flagrant denial of justice.
As mentioned above, the Soering case established that where there is a substantial risk there is going to be a violation of Convention rights, the signatory state should not deport the detainee. As such, the issue in Chahal was choosing between the fact that there was a real risk that Mr Chahal was going to be subjected to torture if he was deported and, the fact that he posed a danger to the national security of the UK.7 Saadi was another case involving deportation and was also seen as a chance by the UK government to try to get the Court to modify Chahal.8 The issue of Diplomatic assurances and whether they might be sufficient in satisfying the state’s Article 3 obligations was also discussed in Saadi.9
In Chahal, the Court decided there was a real risk of Chahal being subject to treatment contrary to Article 3 if he were to be deported to India as there was sufficient evidence exhibiting the contemporary involvement of the Indian security forces in killing and serious human rights violations associated with the problems in the Punjab.10 As such, it was held irrelevant that Chahal was allegedly a Sikh terrorist whose deportation to India was required as a meaure to protect the security of the UK.11 Therefore, the UK would violate Article 3 if it were to implement the Home Secretary’s deportation order and the Court was not prepared to adjust Article 3 to the security situation in issue. In Saadi, because the applicant had established a real risk that he would suffer severe maltreatment by the authorities if he was deported to Tunisia, the Grand Chamber determined a breach of Article 3 would occur if his deportation was to be implemented.12
In Chahal, the ECtHR made it clear that the prohibition of deportation to face treatment contrary to Article 3 is absolute. By rejecting each argument presented by the UK in Saadi, it reinforced the Soering principle and simultaneously strengthened the basis of Chahal. Ultimately, Saadi demonstrated the Court’s unwillingness to reduce the level of protection granted by Article 3. The significance of both Chahal and Saadi is that they exhibit the restrictive nature of Article 3; there are no derogations to be made from Article 3 irrespective of the character of the person involved. Furthermore, the importance of the fact that Saadi came after 9/11 should not be overridden. Even at a time where terrorism had already become an imminent threat, the Court refused to step down from its strong opposition to any move that would sacrifice subjecting a person to ill-treatment and harm.13 Moreover, following Saadi, diplomatic assurances should be examined in their ‘practical application’ so that there would be a ‘sufficient guarantee that the applicant would be protected against the risk of treatment prohibited by the Convention’.14 The ‘weight to be given to assurances from the receiving State depends, in each case, on the circumstances prevailing at the material time.’15
1 European Convention of Human Rights 1950, Art 3
2 (1989) 161 Eur. Ct. H.R.
3 (1996) 23 EHRR 413
4 (2008) 24 BHRC 123
5 Chahal (n 3), para 35
6 Ibid, para 78
7 Ibid, paras 72-107
8 Saadi (n 4), paras 117-123
9 Ibid, paras 51-57
10 Chahal (n 3), paras 95-107
11 Ibid, para 82
12 Saadi (n 4), paras 137-149
13 Saadi (n 4), para 139
14 Ibid, para 148
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