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You are here: BAILII >> Databases >> United Kingdom Asylum and Immigration Tribunal >> STARRED Kacaj (Article 3, Standard of Proof, Non-State Actors) Albania [2001] UKIAT 00018 (19 July 2001) URL: http://www.bailii.org/uk/cases/UKIAT/2001/00018.html Cite as: [2001] INLR 354, [2002] Imm AR 213, [2001] UKIAT 18, [2001] UKIAT 01TH0634, [2001] UKIAT 00018 |
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JISCBAILII_CASE_IMMIGRATION
APPEAL No. CC/23044/2000 (STARRED)
(01/TH/0634)
Date of hearing: 10/04/2001 & 21/05/2001
Date Determination notified: 19/7/2001
| SECRETARY OF STATE FOR THE HOME
DEPARTMENT |
APPELLANT |
| and |
|
| Klodiana KACAJ | RESPONDENT |
| Klodiana KACAJ | APPELLANT |
| AND |
|
| SECRETARY OF STATE FOR THE HOME
DEPARTMENT |
RESPONDENT |
(1) What is the correct standard of proof to be applied in deciding whether to return an applicant to a country where it is alleged that his human rights, particularly under Article 3, would be breached?
The Secretary of State contended that the facts upon which the risk of treatment contrary to Article 3 had to be assessed must be established beyond reasonable doubt. This, of course, contrasts with the test under the Refugee Convention established by the Court of Appeal in Karanakaran [2000] Imm AR 271.
(2) Can there be a breach of the Human Rights Convention and in particular of Article 3 where the treatment which may result if the removal takes place is by non-state actors? Does the approach adopted by the House of Lords in Horvath[2000] 3 WLR 379 to the Refugee Convention apply equally to the Human Rights Convention or are there differences?
The Secretary of State submits that the existence of a system which is designed to provide the necessary protection is enough even if that system may in individual cases operate imperfectly. Ms. Kacaj submits that, however Horvath is to be interpreted in relation to the Refugee Convention, in human rights terms what is needed is that there should in fact be no risk that the individual who is to be returned is treated in such a way as to violate his or her human rights. Thus if it can be shown that there is a real risk that he or she will, whatever the general system in being, be treated in a way contrary to Article 3, return should not be permitted. It is no good saying, if there is a real risk of torture, that the police will investigate and seek to prosecute the torturers.
(3) Does any Article of the Human Rights Convention other than Article 3 have what has been called 'extra-territorial' effect?
In this case, the Secretary of State submits that neither Article 4 nor Article 8 can be relied on where the breach complained of will or may occur outside the jurisdiction of the United Kingdom. The same submission applies to all Articles except Article 3. Article 3 is singled out because of the decision of the European Court of Human Rights in a number of cases, particularly Chahal v United Kingdom (1996) 23 EHRR 413.
Issue (1): Standard of Proof
concerned an allegation by the Republic of Ireland that the United Kingdom had been guilty of breaches of Article 3 in the investigation of suspected terrorists in Northern Ireland. In determining whether any practices which contravened Article 3 had been adopted, the Court approved the standard set by the Commission, saying this (at paragraph 161 on Page 79):-
"The Court agrees with the Commission's approach regarding the evidence on which to base the decision whether there has been violation of Article 3. To assess this evidence, the Court adopts the standard of proof 'beyond reasonable doubt' but adds that such proof may follow from the co-existence of sufficiently strong, clear and concordant inferences or of similar unrebutted presumptions of fact. In this context, the conduct of the Parties when evidence is being obtained has to be taken into account".
In HLR v France (1997) 26 E.H.R.R. 29 (an important case to which we shall have to return), the opinion of the majority of the Commission includes in Paragraph 35 on Page 37 the following observations:-
"The Government adds that, according to the Commission's case law, an individual's allegations of treatment contrary to Article 3 …, if he is deported to a specific country, must be supported by persuasive prima facie evidence. In this case, however, the evidence supplied by the applicant is not such as to support his allegations. The Convention institutions require allegations of treatment prohibited by Article 3 to be proved 'beyond reasonable doubt'".
The Commission is there setting out the Government's argument. It does not itself approve it and, as we shall see when we consider the judgment of the Court, there is no reflection let alone approval of the argument. Indeed, in Paragraph 39 on Page 38 the Commission sets out the test which has been said to be applicable in deportation cases since at least Soering v United Kingdom (1989) 11 EHRR 439 thus:-
"However, according to the case law of the Convention institutions, the decision to deport an individual to a particular country may, in certain circumstances, be contrary to the Convention, in particular Article 3, where there are serious reasons to believe that the individual will be subjected, in the receiving state, to treatment proscribed by that Article."
"… [T]he United Kingdom Government submitted that the application of Article 3 in extradition cases should be limited to those occasions in which the treatment or punishment abroad is certain, imminent and serious. In its view, the fact that by definition the matters complained of are only anticipated, together with the common and legitimate interest of all States in bringing fugitive criminals to justice, requires a very high degree of risk, proved beyond reasonable doubt, that ill-treatment will actually occur."
The Court then proceeded to explain what in its view was the correct approach and in so doing rejected the United Kingdom Government's arguments. The passages cover extra-territoriality as well as standard of proof but we should cite them in full. Paragraphs 86 to 91 on Pages 466 – 469 read as follows:-
"86… Article 1 of the Convention, which provides that 'the High Contracting Parties shall secure to everyone within their jurisdiction the rights and freedoms defined in Section 1' sets a limit, notably territorial, on the reach of the Convention. In particular, the engagement undertaken by a Contracting State is confined to 'securing' ('reconnaître' in the French text) the listed rights and freedoms to persons within its own 'jurisdiction'. Further, the Convention does not govern the actions of States not Parties to it, nor does it purport to be a means of requiring the Contracting States to impose Convention standards on other States. Article 1 cannot be read as justifying a general principle to the effect that, notwithstanding its extradition obligations, a Contracting State may not surrender an individual unless satisfied that the conditions awaiting him in the country of destination are in full accord with each of the safeguards of the Convention. Indeed, as the United Kingdom Government stressed, the beneficial purpose of extradition in preventing fugitive offenders from evading justice cannot be ignored in determining the scope of application of the Convention and of Article 3 in particular.
In the instant case it is common ground that the United Kingdom has no power over the practices and arrangements of the Virginia authorities, which are the subject of the applicant's complaints. It is also true that in other international instruments cited by the United Kingdom Government – for example the 1951 United Nations Convention relating to the Status of Refugees, the 1957 European Convention on Extradition and the 1984 United Nations Convention against Torture and Other Cruel, Inhuman and Degrading Treatment and Punishment – the problems of removing a person to another jurisdiction where unwanted consequences may follow are addressed expressly and specifically.
These considerations cannot, however, absolve the Contracting Parties from responsibility under Article 3 for all and any foreseeable consequences of extradition suffered outside their jurisdiction.
87. In interpreting the Convention regard must be had to its special character as a treaty for the collective enforcement of human rights and fundamental freedoms. Thus, the object and purpose of the Convention as an instrument for the protection of individual human beings require that its provisions be interpreted and applied so as to make its safeguards practical and effective. In addition, any interpretation of the rights and freedoms guaranteed has to be consistent with the general spirit of the Convention, an instrument designed to maintain and promote the ideals and values of a democratic society.
88. Article 3 makes no provision for exceptions and no derogations from it are permissible under Article 15 in time of war or other national emergency. This absolute prohibition under the terms of inhuman or degrading treatment or punishment under the terms of the Convention shows that Article 3 enshrines one of the fundamental values of the democratic societies making up the Council of Europe. It is also to be found in similar terms in other international instruments such as the 1966 International Covenant on Civil and Political Rights and the 1969 American Convention on Human Rights and is generally recognised as an internationally accepted standard.
The question remains whether the extradition of a fugitive to another State where he would be subjected or be likely to be subjected to torture or to inhuman or degrading treatment or punishment would itself engage the responsibility of a Contracting State under Article 3. That the abhorrence of torture has such implications is recognised in Article 3 of the United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or punishment, which provides that 'no State Party shall … extradite a person where there are substantial grounds for believing that he would be in danger of being subjected to torture'. The fact that a specialised treaty should spell out in detail a specific obligation attaching to the prohibition of torture does not mean that an essentially similar obligation is not already inherent in the general terms of Article 3 of the European Convention. It would hardly be compatible with the underlying values of the Convention, that human 'common heritage of political traditions, ideals, freedom and the rule of law' to which the Preamble refers, were a Contracting State knowingly to surrender a fugitive to another State where there were substantial grounds for believing that he would be in danger of being subjected to torture, however heinous the crime allegedly committed. Extradition in such circumstances, while not explicitly referred to in the brief and general wording of Article 3, would plainly be contrary to the spirit and intendment of the Article, and in the Court's view this inherent obligation not to extradite also extends to cases in which the fugitive would be faced in the receiving State by a real risk of exposure to inhuman or degrading treatment or punishment proscribed by that Article.
89. What amounts to 'inhuman or degrading treatment or punishment' depends on all the circumstances of the case. Furthermore, inherent in the whole of the Convention is a search for a fair balance between the demands of the general interest of the community and the requirements of the protection of the individual's fundamental rights. As movement about the world becomes easier and crime takes on a larger international dimension, it is increasingly in the interest of all nations that suspected offenders who flee abroad should be brought to justice. Conversely, the establishment of safe havens for fugitives would not only result in danger for the State obliged to harbour the protected person but also tend to under the foundations of extradition. These considerations must also be included among the factors to be taken into account in the interpretation and application of the notions of inhuman and degrading treatment or punishment in extradition cases.
90. It is not normally for the Convention institutions to pronounce on the existence or otherwise of potential violations of the Convention. However, where an applicant claims that a decision to extradite him would, if implemented, be contrary to Article 3 by reason of its foreseeable consequences in the requesting country, a departure from this principle is necessary, in view of the serious and irreparable nature of the alleged suffering risked, in order to ensure the effectiveness of the safeguard provided by that Article.
91. In sum, the decision by a Contracting State to extradite a fugitive may give rise to an issue under Article 3, and hence engage the responsibility of that State under the Convention, where substantial grounds have been shown for believing that the person concerned, if extradited, faces a real risk of being subjected to torture or to inhuman or degrading treatment or punishment in the requesting country. The establishment of such responsibility inevitably involves an assessment of conditions in the requesting country against the standards of Article 3 of the Convention. Nonetheless, there is no question of adjudicating on or establishing the responsibility of the receiving country, whether under general international law, under the Convention or otherwise. In so far as any liability under the Convention is or may be incurred, it is liability incurred by the extraditing Contracting State by reason of its having taken action which as a direct consequence the exposure of an individual to proscribed treatment."
"81. In the Commission's view, this test also applies to cases of expulsion. Consequently, it must be examined whether, at the time of the expulsion, there were substantial grounds for believing that Mr. Cruz Varas faced a real risk of being subjected to treatment contrary to Article 3 ... if deported to Chile.
82. This examination involves, on the one hand, an establishment of the facts as regards Mr. Cruz Varas' personal background and, on the other hand, an assessment of the general situation in Chile. The Commission considers that the general situation in Chile at the relevant time was not such that an expulsion to Chile would generally be a violation of Article 3 ...In order to raise an issue under Article 3 ... there must be some substantiation that there existed a specific risk of treatment contrary to Article 3 for the first applicant in the particular circumstances of this case.
83. The Commission considers that the evidence submitted by the applicants suggest that Mr. Cruz Varas has in the past been subjected in Chile to treatment contrary to Article 3 ... The medical certificate ... and the evidence that Mr. Cruz Varas has been so treated. Although there are, as the Government suggests, certain elements which reduce the credibility of Mr. Cruz Varas' story, the Commission accepts, on the basis of the material before it, that Mr. Cruz Varas has been subjected in the past in Chile to treatment contrary to Article 3 ..."
"75. In determining whether substantial grounds have been shown for believing in the existence of a real risk of treatment contrary to Article 3 the Court will assess the issue in the light of all the material placed before it or, if necessary, material obtained proprio motu (see the Ireland v United Kingdom judgment of 18 January 1978 (supra)).
76. Since the nature of the Contracting States' responsibility under Article 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 or the well-foundedness or otherwise of an applicant's fears."
All that the Court says is consistent with the conclusion that what is required is an overall assessment whether substantial grounds have been established to believe that there is a real risk of treatment contrary to Article 3.
"The House of Lords found that the test [for establishing whether a person was a refugee] was an objective one and that there has to be demonstrated a reasonable degree of likelihood, or a real or substantial risk, that the person will be persecuted if returned to his own country."
The Court then proceeded to cite substantial extracts from the speeches of Lord Keith, Lord Templeman and Lord Goff. When formulating the test that there must be 'substantial grounds 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 [to be] returned', (Paragraph 103) the Court is clearly intending to follow the same approach as was considered correct for the Refugee Convention. It is true that in Sivakumaran their Lordships did not answer the issue of how past facts should be established, but what they said was consistent with the global approach and the Court of Appeal has now confirmed that in Karanakaran [2000] Imm AR 271.
"For the Court, and having regard to the nature of the right protected by Article 2, a right fundamental in the scheme of the Convention, it is sufficient for an applicant to show that the authorities did not do all that could be reasonably expected of them to avoid a real and immediate risk to life of which they have or ought to have knowledge."
The same approach is appropriate for Article 3 which is also, as the Court has frequently said, a fundamental right in the Convention. That language is far from requiring proof beyond reasonable doubt. The duty to protect against a real risk can readily be equated to a duty not to expose to a real risk.
Issue (2): Violation by non-state actors
"Owing to the absolute character of the right guaranteed, the Court does not rule out the possibility that Article 3 ... may also apply where the danger emanated from persons or groups of persons who are not public officials. However, it must be shown that the risk is real and that the authorities of the receiving State are not able to obviate the risk by providing appropriate protection."
The Court concluded that, despite the general violence and tense situation in Colombia, the applicant had not made out his claim. At Paragraph 43 it said:-
"The Court is aware, too, of the difficulties the Colombian authorities face in containing the violence. The applicant has not shown that they are incapable of affording him appropriate protection."
The language is cautious and understandably so. No guarantees of safety could conceivably be required and the prospect of the Convention providing a haven for criminals who have fallen out with their erstwhile colleagues is an unattractive one.
"While it is true that Article 3 has been more commonly applied by the Court in contexts in which the risk to the individual of being subjected to any of the proscribed forms of treatment emanates from intentionally inflicted acts of the public authorities or non-State bodies in the receiving country, the Court has, in the light of the fundamental importance of Article 3, reserved to itself sufficient flexibility to address the application of that Article in other contexts which might arise. It is not therefore prevented from scrutinising an applicant's claim under Article 3 where the source of the risk of proscribed treatment in the receiving country stems from factors which cannot engage either directly or indirectly the responsibility of the public authorities of that country, or, which, taken alone, do not in themselves infringe the standards of that Article. To limit the application of Article 3 in this manner would be to undermine the absolute character of its protection. In any such contexts, however, the Court must subject all the circumstances surrounding the case to rigorous scrutiny, especially the applicant's perceived situation in the expelling State."
This goes beyond deliberate acts by non-State actors against which the State ought to provide protection. But the observations in Paragraph 40 are material. It is there said:-
"... Having regard ... to the high threshold set by Article 3, particularly where the case does not concern the direct responsibility of the Contracting State for the infliction of harm, the Court does not find that there is a sufficiently real risk that the applicants' removal in those circumstances would be contrary to the standards of Article 3. It does not disclose the exceptional circumstances of [D v United Kingdom (1997) 24 EHRR 423] where the applicant was in the final stages of terminal illness, AIDS, and had no prospect of medical care or family support on expulsion to St Kitts."
In deportation cases, there will rarely be a direct responsibility of the expelling State for the infliction of harm (we do not rule out the possibility that the mere act of removal may contravene Article 3 having regard to the physical or mental condition of the individual being expelled).
"... a system of criminal law which makes violent attacks by the persecutors punishable and a reasonable willingness to enforce that law on the part of the law enforcement agencies."
There was no dissent in any other speech. Lord Clyde at p. 398 cited Osman v United Kingdom, referring in particular to the European Court of Human Rights' recognition that account must be taken of the operational responsibilities and the constraints on the provision of police protection so that the obligation to protect must not be so interpreted as to impose an impossible or disproportionate burden upon the authorities. The observations in Soering at Paragraph 86 which we have already cited are also material. Regard must be had to the general situation in the country in question and the degree of protection to be expected by the population as a whole.
"... [I]t is a practical standard, which takes proper account of the duty which the State owes to all its own nationals."
The fact that the system may break down because of incompetence or venality of individual officers is generally not to be regarded as establishing unwillingness or inability to provide protection. In many cases, perhaps most, the existence of the system will be sufficient to remove the reality of risk.
Issue (3): Extra-territoriality
"The High Contracting Parties shall secure to everyone within their jurisdiction the rights and freedoms defined in Section 1."
This it is said imposes a territorial limit on the reach of the Convention. That argument was rejected by the Court in Soering (supra) at paragraphs 86 et seq. That rejection was not limited to Article 3; indeed, in Soering itself reliance was also placed on an alleged breach of Article 6 about which the Court said this (at Paragraph 113 on Page 479):-
"The right to a fair trial in criminal proceedings, as embodied in Article 6, holds a prominent place in a democratic society. The Court does not exclude that an issue might exceptionally be raised under Article 6 by an extradition decision in circumstances where the fugitive has suffered or risks suffering a flagrant denial of a fair trial in the requesting country."
We see no reason to limit this to extradition. Furthermore, there are Articles other than Article 3 from which there can be no derogation and which can properly be regarded as fundamental and breach of which would result in suffering of a serious and irreparable nature. An obvious example is Article 4. To an extent it is qualified but, where any such qualification does not apply, the right is fundamental and there can be no derogation. Thus it can be equated to Article 3.
"As to the prohibition of intentional deprivation of life, including the execution of a death penalty, the Commission does not exclude that an issue might arise under Article 2 of the Convention or Article 1 of Protocol No. 6 [abolition of death penalty] in circumstances in which the expelling State knowingly puts the person concerned at such high risk of losing his life as for the outcome to be a near certainty. The Commission considers, however, that a 'real risk' - within the meaning of the case-law concerning Article 3 - of loss of life would not as such necessarily render an expulsion contrary to Article 2 of the Convention or Article 1 of Protocol No.6 although it would amount to inhuman treatment within the meaning of Article 3."
We confess we do not find the reasoning persuasive. It places far too great an emphasis on the word 'intentionally'. The duty to provide protection against breaches of the Convention should extend to the duty not intentionally to deprive of life. This is consistent with Osman, albeit the focus was there on the first sentence. To expel someone to a country where there is known to be a real risk of death seems to us to be an intentional exposure to that risk and just as such exposure can engage Article 3 so it ought to engage Article 2. However, the argument is academic since, as the Commission found in Dehwari, there was a breach of Article 3 involved in the imposition of a death penalty for the applicant's activities. Dehwari does not help Mr. Tam since, even if its reasoning should be followed, it depends upon the precise words used in Article 2 and particularly the adverb 'intentionally'.
"We are not bound to follow the decisions of the European Court of Human Rights but simply to take them into account. Nevertheless, the jurisprudence of the Court does point clearly to the fact that rights which are not absolute, such as the right to education, are not engaged where a State is exercising legitimate immigration control."
He went on to say that the Secretary of State was not therefore required to "take a view as to whether the child's Article 2 right will be infringed in Poland". But he concluded the paragraph thus:-
"However, in the spirit of restraint to which we have referred, we do not think it is necessary to decide this point authoritatively in this case, in view of our decision on the other issues to which we now turn."
"In the field of immigration Contracting States enjoy a wide margin of appreciation in determining the steps to be taken to ensure compliance with the Convention, with due regard to the needs and resources of the community and of individuals."
Among other cases, it cites Abdulaziz v United Kingdom (1985) 7 EHRR 471, which concerned an alleged breach of Article 8 in the refusal to permit the applicant to join his family in the United Kingdom. The Court decided that Article 8 could apply where immigration control was being enforced but that in the circumstances of that case there was no breach.
The adjudicator's determination
"For reasons which [her representative] did not, and did not need to, explain, [Ms Kacaj] has not given evidence. The result of this decision is that [Ms Kacaj] has not discharged the burden of proof on her, required under the 1951 Convention, that she has the subjective element of fear as she asserts. As the burden of proof is on [Ms Kacaj] to satisfy me that at the date of her application, and at the date of the hearing of her appeal, she had such a fear, the totality of the evidence does not satisfy me either that [Ms Kacaj's] experience amounts to torture or that she has a Convention reason, namely imputed political option, on account of her father's support for and membership of DP, as she asserts."
"The evidence satisfies me that [Ms Kacaj] was never forced to perform compulsory labour in Albania and that her fear arose from threats uttered to her father that if he did not meet demands for payment [Ms Kacaj] would be abducted and sent to Italy where she would be forced into prostitution."
Is that meant to imply an acceptance of her account of her fear? If so, it does not sit well with his conclusion that she had no subjective fear in relation to the asylum claim. Furthermore, Ms. Kacaj had never alleged she had been forced to perform compulsory labour in Albania and so the adjudicator's statement that 'the evidence satisfied him' that she had not reads somewhat curiously.
Conclusions
"a tribute to the governments' efforts, as well as to the restraint of the political parties themselves."
Nonetheless, criminal groups still exist and Albania is a major route for drug and people smuggling. Organised crime is a powerful force, assisted by corrupt police and weak and corrupt judiciary. Nonetheless it is clear that real efforts are being made by the authorities to try to improve things and some success is being achieved.
"Your father didn't want to please us so you are paying the bill for him. We will use you to hurt him."
That is consistent with their failure to extort money and does not necessarily show any political motivation. The only evidence which could suggest a political motive is the observation on releasing Ms. Kacaj that all democrats would suffer in the same manner. Even if that remark was made, in our view it was intended to make Ms. Kacaj's father believe that he was being targeted for political reasons, perhaps because then he might be more reluctant to involve the police. The objective evidence persuades us that Ms. Kacaj has suffered at the hands of criminals motivated by a desire to extort money and not because of a desire to dissuade Ms. Kacaj's father from continuing his political activities on behalf of the DP.
(i) Where a prospective breach of Article 3 of the Human Rights Convention is alleged under section 65 of the 1999 Act, the standard of proof is the same as in an asylum appeal. The question is, has the claimant established that there is a real risk that his rights under Article 3 will be breached?
(ii) The approach adopted by the House of Lords in Horvath to persecution applies equally to prospective breaches of Article 3. A claimant whose claim is that his Article 3 rights will be breached by non-state agents must also show that the state is unwilling or unable to offer him such protection as is necessary.
(iii) Within the context of immigration law, all the Articles of the Human Rights Convention (save perhaps Article 2) have what has been called extra-territorial effect, because what is being alleged is that by removing the applicant the United Kingdom Government is breaching his or her human rights.
MR JUSTICE COLLINS
PRESIDENT
