Information Note on the Court’s case-law No.
November 1996
Chahal v. the United Kingdom - 22414/93
Judgment 15.11.1996 [GC]
Article 3
Expulsion
Order for deportation to India of Sikh separatist for national security reasons: deportation would constitute a violation
Article 5
Article 5-1
Lawful arrest or detention
Procedure prescribed by law
Detention for six years pending deportation: no violation
Article 5-4
Procedural guarantees of review
Review of lawfulness of detention
Adequacy of judicial review: violation
[This summary is extracted from the Court’s official reports (Series A or Reports of Judgments and Decisions). Its formatting and structure may therefore differ from the Case-Law Information Note summaries.]
I.ARTICLE 3 OF THE CONVENTION
A.Applicability in expulsion cases
Expulsion may engage responsibility of State under Article 3 where substantial grounds shown for believing there would be real risk to deportee of torture or inhuman or degrading treatment or punishment in receiving country.
B.Cases involving alleged danger to national security
Article 3 provides absolute prohibition of torture - in expulsion cases, if substantial grounds shown for believing deportee would be at risk, his conduct cannot be material consideration.
C.Application to particular circumstances
1.Point of time for assessment of risk
Material time that of Court's consideration of case.
2.Assessment of risk
Government proposed to return first applicant, well-known supporter of Sikh separatism, to airport of his choice in India - evidence relating to fate of Sikh militants outside State of Punjab therefore of particular relevance.
Court persuaded by evidence corroborated from different objective sources that until mid-1994 elements of Punjab police accustomed to act without regard to human rights of suspected Sikh militants, including pursuing them outside home State - no evidence of change of regime within Punjab police - despite recent improvement in human rights situation in Punjab and efforts of Indian authorities to bring about reform, problems persist with regard to observance of human rights by certain members of security forces in Punjab and elsewhere in India - against this background, assurances of the Indian Government inadequate guarantee of safety - applicant's high profile likely to make him target of hard-line elements in security forces.
Conclusion: violation, in the event of decision to deport to India being implemented (twelve votes to seven).
II.ARTICLE 5 § 1 OF THE CONVENTION
All that Article 5 § 1 (f) requires is that "action is being taken with a view to deportation" - immaterial whether detention can be reasonably considered necessary or whether underlying decision to expel justified.
However, if deportation proceedings not prosecuted with due diligence, detention will cease to be permissible - domestic proceedings commenced 16 August 1990 and ended 3 March 1994 - given exceptional circumstances and detailed consideration required by courts and executive, period not excessive.
In view of length of applicant's detention, necessary to consider whether sufficient guarantees against arbitrariness existed -in this context, advisory panel including experienced judicial figures which reviewed national security evidence in full, provided adequate guarantee that there were prima facie grounds for believing applicant to be security threat and thus that executive did not act arbitrarily in ordering his detention.
Conclusion: no violation (thirteen votes to six).
III.ARTICLE 5 § 4 OF THE CONVENTION
Since Article 5 § 4 provides lex specialis in relation to more general requirements of Article 13, Court must consider it first.
Article 5 § 4 guarantees right to judicial review of sufficient width as to bear on conditions essential for "lawful" detention under Article 5 § 1.
Domestic courts not provided with information relating to national security and thus unable to review whether decision to detain applicant justified - given procedural short-comings of advisory panel, it could not be considered "court" for purposes of Article 5 § 4.
Court recognises that use of confidential material may be unavoidable where national security at stake - however, national authorities cannot be free from effective judicial control whenever they choose to assert that national security involved - technique can be employed to accommodate legitimate security concerns and individual procedural justice.
Conclusion: violation (unanimously).
IV.ARTICLE 8 OF THE CONVENTION
Given finding of violation of Article 3, not necessary to decide hypothetical question whether there would be violation of Article 8 in event of expulsion to India.
Conclusion: not necessary to consider complaint (seventeen votes to two).
V.ARTICLE 13 OF THE CONVENTION
Judicial review and advisory panel procedure inadequate remedies for Article 3 complaint since could not review decision to deport with reference solely to question of risk to applicant, leaving aside national security considerations.
No need to consider complaints of breaches of Articles 5 and 8 in conjunction with 13 in view of findings that Article 5 § 4 violated and Article 8 complaint hypothetical.
Conclusion: violation (unanimously).
VI.ARTICLE 50 OF THE CONVENTION
A.Non-pecuniary damage: findings of violation sufficient just satisfaction.
B.Costs and expenses: reasonable legal costs awarded.
Conclusion: respondent State to pay specified sum to applicants (unanimously).
© Council of Europe/European Court of Human Rights
This summary by the Registry does not bind the Court.
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