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Terrorism and Human Rights


Cases and materials

Part I

2013

1
INTERNATIONAL CONVENTION
FOR THE SUPPRESSION
OF THE FINANCING
OF TERRORISM
UNITED NATIONS
1999
excerpts

[…]
Article 1
For the purposes of this Convention:
1. „Funds” means assets of every kind, whether tangible or intangible, movable or
immovable, however acquired, and legal documents or instruments in any form, including
electronic or digital, evidencing title to, or interest in, such assets, including, but not limited to,
bank credits, travellers cheques, bank cheques, money orders, shares, securities, bonds,
drafts, letters of credit.
2. „A State or governmental facility” means any permanent or temporary facility or
conveyance that is used or occupied by representatives of a State, members of Government,
the legislature or the judiciary or by officials or employees of a State or any other public
authority or entity or by employees or officials of an intergovernmental organization in
connection with their official duties.
3.”Proceeds” means any funds derived from or obtained, directly or indirectly, through
the commission of an offence set forth in article 2.

Article 2
1. Any person commits an offence within the meaning of this Convention if that person by
any means, directly or indirectly, unlawfully and wilfully, provides or collects funds with the
intention that they should be used or in the knowledge that they are to be used, in full or in
part, in order to carry out:
(a) An act which constitutes an offence within the scope of and as defined in one of
the treaties listed in the annex; or
(b) Any other act intended to cause death or serious bodily injury to a civilian, or to
any other person not taking an active part in the hostilities in a situation of armed conflict,
when the purpose of such act, by its nature or context, is to intimidate a population, or to
compel a government or an international organization to do or to abstain from doing any act.
2. (a) On depositing its instrument of ratification, acceptance, approval or accession, a
State Party which is not a party to a treaty listed in the annex may declare that, in the
application of this Convention to the State Party, the treaty shall be deemed not to be included
in the annex referred to in paragraph 1, subparagraph (a). The declaration shall cease to have
effect as soon as the treaty enters into force for the State Party, which shall notify the
depositary of this fact;
(b) When a State Party ceases to be a party to a treaty listed in the annex, it may
make a declaration as provided for in this article, with respect to that treaty.
3. For an act to constitute an offence set forth in paragraph 1, it shall not be necessary that
the funds were actually used to carry out an offence referred to in paragraph 1, subparagraphs
(a) or (b).
4. Any person also commits an offence if that person attempts to commit an offence as set
forth in paragraph 1 of this article.

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5. Any person also commits an offence if that person:
(a) Participates as an accomplice in an offence as set forth in paragraph 1 or 4 of this
article;
(b) Organizes or directs others to commit an offence as set forth in paragraph 1 or 4
of this article;
(c) Contributes to the commission of one or more offences as set forth in
paragraphs 1 or 4 of this article by a group of persons acting with a common purpose. Such
contribution shall be intentional and shall either:
(i) Be made with the aim of furthering the criminal activity or criminal purpose of the
group, where such activity or purpose involves the commission of an offence as set
forth in paragraph 1 of this article; or
(ii) Be made in the knowledge of the intention of the group to commit an offence as
set forth in paragraph 1 of this article.

Article 3
This Convention shall not apply where the offence is committed within a single State,
the alleged offender is a national of that State and is present in the territory of that State and
no other State has a basis under article 7, paragraph 1, or article 7, paragraph 2, to exercise
jurisdiction, except that the provisions of articles 12 to 18 shall, as appropriate, apply in those
cases.

Article 4
Each State Party shall adopt such measures as may be necessary:
(a) To establish as criminal offences under its domestic law the offences set forth in
article 2;
(b) To make those offences punishable by appropriate penalties which take into
account the grave nature of the offences.

Article 5
1. Each State Party, in accordance with its domestic legal principles, shall take the
necessary measures to enable a legal entity located in its territory or organized under its laws
to be held liable when a person responsible for the management or control of that legal entity
has, in that capacity, committed an offence set forth in article 2. Such liability may be criminal,
civil or administrative.
2. Such liability is incurred without prejudice to the criminal liability of individuals having
committed the offences.
3. Each State Party shall ensure, in particular, that legal entities liable in accordance with
paragraph 1 above are subject to effective, proportionate and dissuasive criminal, civil or
administrative sanctions. Such sanctions may include monetary sanctions.

Article 6
Each State Party shall adopt such measures as may be necessary, including, where
appropriate, domestic legislation, to ensure that criminal acts within the scope of this
Convention are under no circumstances justifiable by considerations of a political,
philosophical, ideological, racial, ethnic, religious or other similar nature.

Article 7
1. Each State Party shall take such measures as may be necessary to establish its

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jurisdiction over the offences set forth in article 2 when:
(a) The offence is committed in the territory of that State;
(b) The offence is committed on board a vessel flying the flag of that State or an
aircraft registered under the laws of that State at the time the offence is committed;
(c) The offence is committed by a national of that State.
2. A State Party may also establish its jurisdiction over any such offence when:
(a) The offence was directed towards or resulted in the carrying out of an offence
referred to in article 2, paragraph 1, subparagraph (a) or (b), in the territory of or against a
national of that State;
(b) The offence was directed towards or resulted in the carrying out of an offence
referred to in article 2, paragraph 1, subparagraph (a) or (b), against a State or government
facility of that State abroad, including diplomatic or consular premises of that State;
(c) The offence was directed towards or resulted in an offence referred to in article 2,
paragraph 1, subparagraph (a) or (b), committed in an attempt to compel that State to do or
abstain from doing any act;
(d) The offence is committed by a stateless person who has his or her habitual
residence in the territory of that State;
(e) The offence is committed on board an aircraft which is operated by the
Government of that State.
3. Upon ratifying, accepting, approving or acceding to this Convention, each State Party
shall notify the Secretary-General of the United Nations of the jurisdiction it has established in
accordance with paragraph 2. Should any change take place, the State Party concerned shall
immediately notify the Secretary-General.
4. Each State Party shall likewise take such measures as may be necessary to establish its
jurisdiction over the offences set forth in article 2 in cases where the alleged offender is
present in its territory and it does not extradite that person to any of the States Parties that
have established their jurisdiction in accordance with paragraphs 1 or 2.
5. When more than one State Party claims jurisdiction over the offences set forth in article
2, the relevant States Parties shall strive to coordinate their actions appropriately, in particular
concerning the conditions for prosecution and the modalities for mutual legal assistance.
6. Without prejudice to the norms of general international law, this Convention does not
exclude the exercise of any criminal jurisdiction established by a State Party in accordance
with its domestic law.

Article 8
1. Each State Party shall take appropriate measures, in accordance with its domestic legal
principles, for the identification, detection and freezing or seizure of any funds used or
allocated for the purpose of committing the offences set forth in article 2 as well as the
proceeds derived from such offences, for purposes of possible forfeiture.
2. Each State Party shall take appropriate measures, in accordance with its domestic legal
principles, for the forfeiture of funds used or allocated for the purpose of committing the
offences set forth in article 2 and the proceeds derived from such offences.
3. Each State Party concerned may give consideration to concluding agreements on the
sharing with other States Parties, on a regular or case-by-case basis, of the funds derived
from the forfeitures referred to in this article.
4. Each State Party shall consider establishing mechanisms whereby the funds derived
from the forfeitures referred to in this article are utilized to compensate the victims of offences
referred to in article 2, paragraph 1, subparagraph (a) or (b), or their families.

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5. The provisions of this article shall be implemented without prejudice to the rights of
third parties acting in good faith.

Article 9
1. Upon receiving information that a person who has committed or who is alleged to have
committed an offence set forth in article 2 may be present in its territory, the State Party
concerned shall take such measures as may be necessary under its domestic law to investigate
the facts contained in the information.
2. Upon being satisfied that the circumstances so warrant, the State Party in whose
territory the offender or alleged offender is present shall take the appropriate measures under
its domestic law so as to ensure that person=s presence for the purpose of prosecution or
extradition.
3. Any person regarding whom the measures referred to in paragraph 2 are being taken
shall be entitled to:
(a) Communicate without delay with the nearest appropriate representative of the
State of which that person is a national or which is otherwise entitled to protect that person=s
rights or, if that person is a stateless person, the State in the territory of which that person
habitually resides;
(b) Be visited by a representative of that State;
(c) Be informed of that person=s rights under subparagraphs (a) and (b).
4. The rights referred to in paragraph 3 shall be exercised in conformity with the laws and
regulations of the State in the territory of which the offender or alleged offender is present,
subject to the provision that the said laws and regulations must enable full effect to be given to
the purposes for which the rights accorded under paragraph 3 are intended.
5. The provisions of paragraphs 3 and 4 shall be without prejudice to the right of any
State Party having a claim to jurisdiction in accordance with article 7, paragraph 1,
subparagraph (b), or paragraph 2, subparagraph (b), to invite the International Committee of
the Red Cross to communicate with and visit the alleged offender.
6. When a State Party, pursuant to the present article, has taken a person into custody, it
shall immediately notify, directly or through the Secretary-General of the United Nations, the
States Parties which have established jurisdiction in accordance with article 7, paragraph 1 or
2, and, if it considers it advisable, any other interested States Parties, of the fact that such
person is in custody and of the circumstances which warrant that person=s detention. The
State which makes the investigation contemplated in paragraph 1 shall promptly inform the
said States Parties of its findings and shall indicate whether it intends to exercise jurisdiction.

Article 10
1. The State Party in the territory of which the alleged offender is present shall, in cases to
which article 7 applies, if it does not extradite that person, be obliged, without exception
whatsoever and whether or not the offence was committed in its territory, to submit the case
without undue delay to its competent authorities for the purpose of prosecution, through
proceedings in accordance with the laws of that State. Those authorities shall take their
decision in the same manner as in the case of any other offence of a grave nature under the
law of that State.
2. Whenever a State Party is permitted under its domestic law to extradite or otherwise
surrender one of its nationals only upon the condition that the person will be returned to that
State to serve the sentence imposed as a result of the trial or proceeding for which the
extradition or surrender of the person was sought, and this State and the State seeking the

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extradition of the person agree with this option and other terms they may deem appropriate,
such a conditional extradition or surrender shall be sufficient to discharge the obligation set
forth in paragraph 1.

Article 11
1. The offences set forth in article 2 shall be deemed to be included as extraditable
offences in any extradition treaty existing between any of the States Parties before the entry
into force of this Convention. States Parties undertake to include such offences as extraditable
offences in every extradition treaty to be subsequently concluded between them.
2. When a State Party which makes extradition conditional on the existence of a treaty
receives a request for extradition from another State Party with which it has no extradition
treaty, the requested State Party may, at its option, consider this Convention as a legal basis
for extradition in respect of the offences set forth in article 2. Extradition shall be subject to the
other conditions provided by the law of the requested State.
3. States Parties which do not make extradition conditional on the existence of a treaty
shall recognize the offences set forth in article 2 as extraditable offences between themselves,
subject to the conditions provided by the law of the requested State.
4. If necessary, the offences set forth in article 2 shall be treated, for the purposes of
extradition between States Parties, as if they had been committed not only in the place in
which they occurred but also in the territory of the States that have established jurisdiction in
accordance with article 7, paragraphs 1 and 2.
5. The provisions of all extradition treaties and arrangements between States Parties with
regard to offences set forth in article 2 shall be deemed to be modified as between States
Parties to the extent that they are incompatible with this Convention.

[…]

Annex
1. Convention for the Suppression of Unlawful Seizure of Aircraft, done at The Hague on
16 December 1970.
2. Convention for the Suppression of Unlawful Acts against the Safety of Civil Aviation,
done at Montreal on 23 September 1971.
3. Convention on the Prevention and Punishment of Crimes against Internationally
Protected Persons, including Diplomatic Agents, adopted by the General Assembly of the
United Nations on 14 December 1973.
4. International Convention against the Taking of Hostages, adopted by the General
Assembly of the United Nations on 17 December 1979.
5. Convention on the Physical Protection of Nuclear Material, adopted at Vienna on
3 March 1980.
6. Protocol for the Suppression of Unlawful Acts of Violence at Airports Serving
International Civil Aviation, supplementary to the Convention for the Suppression of Unlawful
Acts against the Safety of Civil Aviation, done at Montreal on 24 February 1988.
7. Convention for the Suppression of Unlawful Acts against the Safety of Maritime
Navigation, done at Rome on 10 March 1988.
8. Protocol for the Suppression of Unlawful Acts against the Safety of Fixed Platforms
located on the Continental Shelf, done at Rome on 10 March 1988.
9. International Convention for the Suppression of Terrorist Bombings, adopted by the
General Assembly of the United Nations on 15 December 1997.

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7
Convention for the Protection of Human Rights and Fundamental Freedoms as amended by
Protocol No. 11
Rome, 4.XI.1950
Excerpts
[…]
Article 1 . Obligation to respect human rights
The High Contracting Parties shall secure to everyone within their jurisdiction the rights and
freedoms defined in Section I of this Convention.

SECTION I . RIGHTS AND FREEDOMS


Article 2 . Right to life
1 Everyone's right to life shall be protected by law. No one shall be deprived of his life
intentionally save in the execution of a sentence of a court following his conviction of a crime for
which this penalty is provided by law.
2 Deprivation of life shall not be regarded as inflicted in contravention of this article when it
results from the use of force which is no more than absolutely necessary:
a in defence of any person from unlawful violence;
b in order to effect a lawful arrest or to prevent the escape of a person
lawfully detained;
c in action lawfully taken for the purpose of quelling a riot or
insurrection.

Article 3 . Prohibition of torture


No one shall be subjected to torture or to inhuman or degrading treatment or punishment.

Article 4 . Prohibition of slavery and forced labour


1 No one shall be held in slavery or servitude.
2 No one shall be required to perform forced or compulsory labour.
3 For the purpose of this article the term .forced or compulsory labour. shall not include:
a any work required to be done in the ordinary course of detention imposed according to the
provisions of Article 5 of this Convention or during conditional release from such detention;
b any service of a military character or, in case of conscientious objectors in countries where
they are recognised, service exacted instead of compulsory military service;
c any service exacted in case of an emergency or calamity threatening the life or well-being of the
community;
d any work or service which forms part of normal civic obligations.

Article 5 . Right to liberty and security


1 Everyone has the right to liberty and security of person. No one shall be deprived of his liberty
save in the following cases and in accordance with a procedure prescribed by law:
a the lawful detention of a person after conviction by a competent court;
b the lawful arrest or detention of a person for non-compliance with the lawful order of a court or
in order to secure the fulfilment of any obligation prescribed by law;
c the lawful arrest or detention of a person effected for the purpose of bringing him before the
competent legal authority on reasonable suspicion of having committed an offence or when it
is reasonably considered necessary to prevent his committing an offence or fleeing after having done
so;

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d the detention of a minor by lawful order for the purpose of educational supervision or his
lawful detention for the purpose of bringing him before the competent legal authority;
e the lawful detention of persons for the prevention of the spreading of infectious diseases, of persons
of unsound mind, alcoholics or drug addicts or vagrants;
f the lawful arrest or detention of a person to prevent his effecting an unauthorised entry into the
country or of a person against whom action is being taken with a view to deportation or
extradition.
2 Everyone who is arrested shall be informed promptly, in a language which he understands,
of the reasons for his arrest and of any charge against him.
3 Everyone arrested or detained in accordance with the provisions of paragraph 1.c of this article
shall be brought promptly before a judge or other officer authorised by law to exercise judicial
power and shall be entitled to trial within a reasonable time or to release pending trial.
Release may be conditioned by guarantees to appear for trial.
4 Everyone who is deprived of his liberty by arrest or detention shall be entitled to take
proceedings by which the lawfulness of his detention shall be decided speedily by a court and
his release ordered if the detention is not lawful.
5 Everyone who has been the victim of arrest or detention in contravention of the provisions of this
article shall have an enforceable right to compensation.

Article 6 . Right to a fair trial


1 In the determination of his civil rights and obligations or of any criminal charge against him,
everyone is entitled to a fair and public hearing within a reasonable time by an independent
and impartial tribunal established by law. Judgment shall be pronounced publicly but the press and
public may be excluded from all or part of the trial in the interests of morals, public order or national
security in a democratic society, where the interests of juveniles or the protection of the private life of
the parties so require, or to the extent strictly necessary in the opinion of the court in special
circumstances where publicity would prejudice the interests of justice.
2 Everyone charged with a criminal offence shall be presumed innocent until proved guilty
according to law.
3 Everyone charged with a criminal offence has the following minimum rights:
a to be informed promptly, in a language which he understands and in detail, of the nature and cause
of the accusation against him;
b to have adequate time and facilities for the preparation of his defence;
c to defend himself in person or through legal assistance of his own choosing or, if he has
not sufficient means to pay for legal assistance, to be given it free when the interests of
justice so require;
d to examine or have examined witnesses against him and to obtain the attendance and
examination of witnesses on his behalf under the same conditions as witnesses against him;
e to have the free assistance of an interpreter if he cannot understand or speak the language used in
court.

Article 7 . No punishment without law


1 No one shall be held guilty of any criminal offence on account of any act or omission which did not
constitute a criminal offence under national or international law at the time when it was committed.
Nor shall a heavier penalty be imposed than the one that was applicable at the time the criminal
offence was committed.

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2 This article shall not prejudice the trial and punishment of any person for any act or omission
which, at the time when it was committed, was criminal according to the general principles of law
recognised by civilised nations.

Article 8 . Right to respect for private and family life


1 Everyone has the right to respect for his private and family life, his home and his correspondence.
2 There shall be no interference by a public authority with the exercise of this right except such as is
in accordance with the law and is necessary in a democratic society in the interests of national
security, public safety or the economic well-being of the country, for the prevention of disorder or
crime, for the protection of health or morals, or for the protection of the rights and freedoms of
others.

Article 9 . Freedom of thought, conscience and religion


1 Everyone has the right to freedom of thought, conscience and religion; this right includes freedom
to change his religion or belief and freedom, either alone or in community with others and in
public or private, to manifest his religion or belief, in worship, teaching, practice and
observance.
2 Freedom to manifest one's religion or beliefs shall be subject only to such limitations as are
prescribed by law and are necessary in a democratic society in the interests of public safety, for
the protection of public order, health or morals, or for the protection of the rights and freedoms
of others.

Article 10 . Freedom of expression


1 Everyone has the right to freedom of expression. This right shall include freedom to hold opinions
and to receive and impart information and ideas without interference by public authority and
regardless of frontiers. This article shall not prevent States from requiring the licensing of
broadcasting, television or cinema enterprises.
2 The exercise of these freedoms, since it carries with it duties and responsibilities, may be
subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are
necessary in a democratic society, in the interests of national security, territorial integrity or
public safety, for the prevention of disorder or crime, for the protection of health or morals, for the
protection of the reputation or rights of others, for preventing the disclosure of information received
in confidence, or for maintaining the authority and impartiality of the judiciary.

Article 11 . Freedom of assembly and association


1 Everyone has the right to freedom of peaceful assembly and to freedom of association with others,
including the right to form and to join trade unions for the protection of his interests.
2 No restrictions shall be placed on the exercise of these rights other than such as are prescribed by
law and are necessary in a democratic society in the interests of national security or public
safety, for the prevention of disorder or crime, for the protection of health or morals or for the
protection of the rights and freedoms of others. This article shall not prevent the imposition of lawful
restrictions on the exercise of these rights by members of the armed forces, of the police or of
the administration of the State.

Article 12 . Right to marry


Men and women of marriageable age have the right to marry and to found a family, according
to the national laws governing the exercise of this right.

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Article 13 . Right to an effective remedy
Everyone whose rights and freedoms as set forth in this 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.

Article 14 . Prohibition of discrimination


The enjoyment of the rights and freedoms set forth in this Convention shall be secured without
discrimination on any ground such as sex, race, colour, language, religion, political or other
opinion, national or social origin, association with a national minority, property, birth or other status.

Article 15 . Derogation in time of emergency


1 In time of war or other public emergency threatening the life of the nation any High
Contracting Party may take measures derogating from its obligations under this Convention to the
extent strictly required by the exigencies of the situation, provided that such measures are not
inconsistent with its other obligations under international law.
2 No derogation from Article 2, except in respect of deaths resulting from lawful acts of war, or
from Articles 3, 4 (paragraph 1) and 7 shall be made under this provision.
3 Any High Contracting Party availing itself of this right of derogation shall keep the Secretary
General of the Council of Europe fully informed of the measures which it has taken and the
reasons therefor. It shall also inform the Secretary General of the Council of Europe when such
measures have ceased to operate and the provisions of the Convention are again being fully executed.

Article 16 . Restrictions on political activity of aliens


Nothing in Articles 10, 11 and 14 shall be regarded as preventing the High Contracting
Parties from imposing restrictions on the political activity of aliens.

Article 17 . Prohibition of abuse of rights


Nothing in this Convention may be interpreted as implying for any State, group or person any right
to engage in any activity or perform any act aimed at the destruction of any of the rights and
freedoms set forth herein or at their limitation to a greater extent than is provided for in the
Convention.

Article 18 . Limitation on use of restrictions on rights


The restrictions permitted under this Convention to the said rights and freedoms shall not be
applied for any purpose other than those for which they have been prescribed.

11
International Covenant on Civil and Political Rights, G.A. res. 2200A (XXI), 21 U.N. GAOR
Supp. (No. 16) at 52, U.N. Doc. A/6316 (1966), 999 U.N.T.S. 171, entered into force Mar. 23, 1976.
Excerpts
[…]
Article 2

1. Each State Party to the present Covenant undertakes to respect and to ensure to all individuals
within its territory and subject to its jurisdiction the rights recognized in the present Covenant, without
distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national
or social origin, property, birth or other status.
2. Where not already provided for by existing legislative or other measures, each State Party to the
present Covenant undertakes to take the necessary steps, in accordance with its constitutional
processes and with the provisions of the present Covenant, to adopt such legislative or other measures
as may be necessary to give effect to the rights recognized in the present Covenant.
3. Each State Party to the present Covenant undertakes:
(a) To ensure that any person whose rights or freedoms as herein recognized are violated shall have an
effective remedy, notwithstanding that the violation has been committed by persons acting in an
official capacity;
(b) To ensure that any person claiming such a remedy shall have his right thereto determined by
competent judicial, administrative or legislative authorities, or by any other competent authority
provided for by the legal system of the State, and to develop the possibilities of judicial remedy;
(c) To ensure that the competent authorities shall enforce such remedies when granted.

Article 3
The States Parties to the present Covenant undertake to ensure the equal right of men and women to
the enjoyment of all civil and political rights set forth in the present Covenant.

Article 4
1 . In time of public emergency which threatens the life of the nation and the existence of which is
officially proclaimed, the States Parties to the present Covenant may take measures derogating from
their obligations under the present Covenant to the extent strictly required by the exigencies of the
situation, provided that such measures are not inconsistent with their other obligations under
international law and do not involve discrimination solely on the ground of race, colour, sex, language,
religion or social origin.
2. No derogation from articles 6, 7, 8 (paragraphs I and 2), 11, 15, 16 and 18 may be made under this
provision.
3. Any State Party to the present Covenant availing itself of the right of derogation shall immediately
inform the other States Parties to the present Covenant, through the intermediary of the Secretary-
General of the United Nations, of the provisions from which it has derogated and of the reasons by
which it was actuated. A further communication shall be made, through the same intermediary, on the
date on which it terminates such derogation.

[…]

Article 6
1. Every human being has the inherent right to life. This right shall be protected by law. No one shall
be arbitrarily deprived of his life.

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2. In countries which have not abolished the death penalty, sentence of death may be imposed only for
the most serious crimes in accordance with the law in force at the time of the commission of the crime
and not contrary to the provisions of the present Covenant and to the Convention on the Prevention
and Punishment of the Crime of Genocide. This penalty can only be carried out pursuant to a final
judgement rendered by a competent court.
3. When deprivation of life constitutes the crime of genocide, it is understood that nothing in this
article shall authorize any State Party to the present Covenant to derogate in any way from any
obligation assumed under the provisions of the Convention on the Prevention and Punishment of the
Crime of Genocide.
4. Anyone sentenced to death shall have the right to seek pardon or commutation of the sentence.
Amnesty, pardon or commutation of the sentence of death may be granted in all cases.
5. Sentence of death shall not be imposed for crimes committed by persons below eighteen years of
age and shall not be carried out on pregnant women.
6. Nothing in this article shall be invoked to delay or to prevent the abolition of capital punishment by
any State Party to the present Covenant.

Article 7
No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment. In
particular, no one shall be subjected without his free consent to medical or scientific experimentation.

Article 8
1. No one shall be held in slavery; slavery and the slave-trade in all their forms shall be prohibited.
2. No one shall be held in servitude.
3.(a) No one shall be required to perform forced or compulsory labour;
(b) Paragraph 3 (a) shall not be held to preclude, in countries where imprisonment with hard labour
may be imposed as a punishment for a crime, the performance of hard labour in pursuance of a
sentence to such punishment by a competent court;
(c) For the purpose of this paragraph the term "forced or compulsory labour" shall not include:
(i) Any work or service, not referred to in subparagraph (b), normally required of a person who is
under detention in consequence of a lawful order of a court, or of a person during conditional release
from such detention;
(ii) Any service of a military character and, in countries where conscientious objection is recognized,
any national service required by law of conscientious objectors;
(iii) Any service exacted in cases of emergency or calamity threatening the life or well-being of the
community;
(iv) Any work or service which forms part of normal civil obligations.

[…]

Article 11
No one shall be imprisoned merely on the ground of inability to fulfil a contractual obligation.

[…]

Article 15
1 . No one shall be held guilty of any criminal offence on account of any act or omission which did not
constitute a criminal offence, under national or international law, at the time when it was committed.
Nor shall a heavier penalty be imposed than the one that was applicable at the time when the criminal

13
offence was committed. If, subsequent to the commission of the offence, provision is made by law for
the imposition of the lighter penalty, the offender shall benefit thereby.
2. Nothing in this article shall prejudice the trial and punishment of any person for any act or omission
which, at the time when it was committed, was criminal according to the general principles of law
recognized by the community of nations.

Article 16
Everyone shall have the right to recognition everywhere as a person before the law.

[…]

Article 18
1. Everyone shall have the right to freedom of thought, conscience and religion. This right shall
include freedom to have or to adopt a religion or belief of his choice, and freedom, either individually
or in community with others and in public or private, to manifest his religion or belief in worship,
observance, practice and teaching.
2. No one shall be subject to coercion which would impair his freedom to have or to adopt a religion
or belief of his choice.
3. Freedom to manifest one's religion or beliefs may be subject only to such limitations as are
prescribed by law and are necessary to protect public safety, order, health, or morals or the
fundamental rights and freedoms of others. 4. The States Parties to the present Covenant undertake to
have respect for the liberty of parents and, when applicable, legal guardians to ensure the religious and
moral education of their children in conformity with their own convictions.

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AMERICAN CONVENTION ON HUMAN RIGHTS "PACT OF SAN JOSE, COSTA RICA"

Article 27. Suspension of Guarantees

1. In time of war, public danger, or other emergency that threatens the independence or security of a
State Party, it may take measures derogating from its obligations under the present Convention to the
extent and for the period of time strictly required by the exigencies of the situation, provided that
such measures are not inconsistent with its other obligations under international law and do not
involve discrimination on the ground of race, color, sex, language, religion, or social origin.
2. The foregoing provision does not authorize any suspension of the following articles: Article 3
(Right to Juridical Personality), Article 4 (Right to Life), Article 5 (Right to Humane Treatment),
Article 6 (Freedom from Slavery), Article 9 (Freedom from Ex Post Facto Laws), Article 12
(Freedom of Conscience and Religion), Article 17 (Rights of the Family), Article 18 (Right to a
Name), Article 19 (Rights of the Child), Article 20 (Right to Nationality), and Article 23 (Right to
Participate in Government), or of the judicial guarantees essential for the protection of such rights.
3. Any State Party availing itself of the right of suspension shall immediately inform the other States
Parties, through the Secretary General of the Organization of American States, of the provisions the
application of which it has suspended, the reasons that gave rise to the suspension, and the date set
for the termination of such suspension.

15
ECtHR 01.07.1961, Lawless v. Ireland, Application No. 332/57

Excerpts

20. Whereas the Court is called upon to decide whether the detention of G.R. Lawless from 13th July
to 11th December 1957 under the Offences against the State (Amendment) Act, 1940, was justified,
despite Articles 5 and 6 (art. 5, art. 6) of the Convention, by the right of derogation allowed to the
High Contracting Parties in certain exceptional circumstances under Article 15 (art. 15) of the
Convention;
[…]
22. Whereas it follows from these provisions that, without being released from all its undertakings
assumed in the Convention, the Government of any High Contracting Party has the right, in case of
war or public emergency threatening the life of the nation, to take measures derogating from its
obligations under the Convention other than those named in Article 15, paragraph 2 (art. 15-2), pro-
vided that such measures are strictly limited to what is required by the exigen-cies of the situation and
also that they do not conflict with other obligations under international law; whereas it is for the Court
to determine whether the conditions laid down in Article 15 (art. 15) for the exercise of the exceptional
right of derogation have been fulfilled in the present case;
(a) As to the existence of a public emergency threatening the life of the nation.
23. Whereas the Irish Government, by a Proclamation dated 5th July 1957 and published in the
Official Gazette on 8th July 1957, brought into force the ex-traordinary powers conferred upon it by
Part II of the Offences against the State (Amendment) Act, 1940, „to secure the preservation of public
peace and order―;
24. Whereas, by letter dated 20th July 1957 addressed to the Secretary-General of the Council of
Europe, the Irish Government expressly stated that „the deten-tion of persons under the Act is
considered necessary to prevent the commission of offences against public peace and order and to
prevent the maintaining of military or armed forces other than those authorised by the Constitution―;
[…]
28. Whereas, in the general context of Article 15 (art. 15) of the Convention, the natural and
customary meaning of the words „other public emergency threatening the life of the nation― is
sufficiently clear; whereas they refer to an exceptional situation of crisis or emergency which affects
the whole population and constitutes a threat to the organised life of the community of which the State
is composed; whereas, having thus established the natural and customary meaning of this conception,
the Court must determine whether the facts and circumstances which led the Irish Government to
make their Proclamation of 5th July 1957 come within this conception; whereas the Court, after an
exami-nation, find this to be the case; whereas the existence at the time of a „public emergency
threatening the life of the nation―, was reasonably deduced by the Irish Government from a
combination of several factors, namely: in the first place, the existence in the territory of the Republic
of Ireland of a secret army engaged in unconstitutional activities and using violence to attain its
purposes; secondly, the fact that this army was also operating outside the territory of the State, thus
seriously jeopardising the relations of the Republic of Ireland with its neighbour; thirdly, the steady
and alarming increase in terrorist activities from the autumn of 1956 and throughout the first half of
1957;
29. Whereas, despite the gravity of the situation, the Government had suc-ceeded, by using means
available under ordinary legislation, in keeping public institutions functioning more or less normally,
but whereas the homicidal am-bush on the night 3rd to 4th July 1957 in the territory of Northern
Ireland near the border had brought to light, just before 12th July - a date, which, for histori-cal
reasons is particularly critical for the preservation of public peace and order - the imminent danger to

16
the nation caused by the continuance of unlawful ac-tivities in Northern Ireland by the IRA and
various associated groups, operating from the territory of the Republic of Ireland;
30. Whereas, in conclusion, the Irish Government were justified in declaring that there was a public
emergency in the Republic of Ireland threatening the life of the nation and were hence entitled,
applying the provisions of Article 15, paragraph 1 (art. 15-1), of Convention for the purposes for
which those provi-sions were made, to take measures derogating from their obligations under the
Convention;
(b) As to whether the measures taken in derogation from obligations under the Convention were
„strictly required by the exigencies of the situation―.
31. Whereas Article 15, paragraph 1 (art. 15-1), provides that a High Contract-ing Party may derogate
from its obligations under the Convention only „to the extent strictly required by the exigencies of the
situation―; whereas it is there-fore necessary, in the present case, to examine whether the bringing
into force of Part II of the 1940 Act was a measure strictly required by the emergency existing in
1957;
[…]
36. Whereas, however, considering, in the judgment of the Court, that in 1957 the application of the
ordinary law had proved unable to check the growing danger which threatened the Republic of Ireland;
whereas the ordinary criminal courts, or even the special criminal courts or military courts, could not
suffice to restore peace and order; whereas, in particular, the amassing of the necessary evidence to
convict persons involved in activities of the IRA and its splinter groups was meeting with great
difficulties caused by the military, secret and terrorist character of those groups and the fear they
created among the popula-tion; whereas the fact that these groups operated mainly in Northern Ireland,
their activities in the Republic of Ireland being virtually limited to the prepara-tion of armed raids
across the border was an additional impediment to the ga-thering of sufficient evidence; whereas the
sealing of the border would have had extremely serious repercussions on the population as a whole,
beyond the extent required by the exigencies of the emergency;
Whereas it follows from the foregoing that none of the above-mentioned means would have made it
possible to deal with the situation existing in Ireland in 1957; whereas, therefore, the administrative
detention – as instituted under the Act (Amendment) of 1940 - of individuals suspected of intending to
take part in terrorist activities, appeared, despite its gravity, to be a measure required by the
circumstances;
37. Whereas, moreover, the Offences against the State (Amendment) Act of 1940, was subject to a
number of safeguards designed to prevent abuses in the operation of the system of administrative
detention; whereas the application of the Act was thus subject to constant supervision by Parliament,
which not only received precise details of its enforcement at regular intervals but could also at any
time, by a Resolution, annul the Government's Proclamation which had brought the Act into force;
whereas the Offences against the State (Amendment) Act 1940, provided for the establishment of a
„Detention Commission― made up of three members, which the Government did in fact set up, the
members being an officer of the Defence Forces and two judges; whereas any person de-tained under
this Act could refer his case to that Commission whose opinion, if favourable to the release of the
person concerned, was binding upon the Gov-ernment; whereas, moreover, the ordinary courts could
themselves compel the Detention Commission to carry out its functions;
Whereas, in conclusion, immediately after the Proclamation which brought the power of detention into
force, the Government publicly announced that it would release any person detained who gave an
undertaking to respect the Constitution and the Law and not to engage in any illegal activity, and that
the wording of this undertaking was later altered to one which merely required that the person detained
would undertake to observe the law and refrain from activities contrary to the 1940 Act; whereas the
persons arrested were informed immediately after their arrest that they would be released following

17
the undertaking in question; whereas in a democratic country such as Ireland the existence of this
guarantee of release given publicly by the Government constituted a legal obligation on the
Government to release all persons who gave the undertaking;
Whereas, therefore, it follows from the foregoing that the detention without trial provided for by the
1940 Act, subject to the above-mentioned safeguards, ap-pears to be a measure strictly required by the
exigencies of the situation within the meaning of Article 15 (art. 15) of the Convention;
38. Whereas, in the particular case of G.R. Lawless, there is nothing to show that the powers of
detention conferred upon the Irish Government by the Of-fences against the State (Amendment) Act
1940, were employed against him, either within the meaning of Article 18 (art. 18) of the Convention,
for a pur-pose other than that for which they were granted, or within the meaning of Ar-ticle 15 (art.
15) of the Convention, by virtue of a measure going beyond what was strictly required by the situation
at that time; whereas on the contrary, the Commission, after finding in its Decision of 30th August
1958 on the admissi-bility of the Application that the Applicant had in fact submitted his Application
to it after having exhausted the domestic remedies, observed in its Report that the general conduct of
G.R. Lawless, „his association with persons known to be active members of the IRA, his conviction
for carrying incriminating documents and other circumstances were such as to draw upon the
Applicant the gravest suspicion that, whether or not he was any longer a member, he still was con-
cerned with the activities of the IRA at the time of his arrest in July 1957; whe-reas the file also shows
that, at the beginning of G.R. Lawless's detention under Act No. 2 of 1940, the Irish Government
informed him that he would be re-leased if he gave a written undertaking „to respect the Constitution
of Ireland and the Laws― and not to „be a member of or assist any organisation that is an unlawful
organisation under the Offences against the State Act, 1939―; whereas in December 1957 the
Government renewed its offer in a different form, which was accepted by G.R. Lawless, who gave a
verbal undertaking before the De-tention Commission not to „take part in any activities that are illegal
under the Offences against the State Acts 1939 and 1940― and was accordingly imme-diately
released;
[…]
As to whether the letter of 20th July 1957 from the Irish Government to the Secretary-General of the
Council of Europe was a sufficient notification for the purposes of Article 15, paragraph 3 (art. 15-3),
of the Convention.
42. Whereas Article 15, paragraph 3 (art. 15-3), of the Convention provides that a Contracting Party
availing itself of the right of derogation under paragraph 1 of the same Article (art. 15-1) shall keep the
Secretary-General of the Council of Europe fully informed of the measures which it has taken and the
reasons therefore and shall also inform him when such measures have ceased to operate;
43. Whereas, in the present case, the Irish Government, on 20th July 1957, sent the Secretary-General
of the Council of Europe a letter informing him - as is stated therein: „in compliance with Article 15
(3) (art. 15-3) of the Convention― - that Part II of the Offences against the State (Amendment) Act,
1940, had been brought into force on 8th July 1957 […] whereas the Irish Government explained in
the said letter that the measure in question was „considered neces-sary to prevent the commission of
offences against public peace and order and to prevent the maintaining of military or armed forces
other than those autho-rised by the Constitution―;
[…]
47. Whereas the Court is called upon in the first instance, to examine whether, in pursuance of
paragraph 3 of Article 15 (art. 15-3) of the Convention, the Sec-retary-General of the Council of
Europe was duly informed both of the meas-ures taken and of the reason therefore; whereas the Court
notes that a copy of the Offences against the State (Amendment) Act, 1940, and a copy of the Proc-
lamation of 5th July, published on 8th July 1957, bringing into force Part II of the aforesaid Act were
attached to the letter of 20th July; that it was explained in the letter of 20th July that the measures had

18
been taken in order „to prevent the commission of offences against public peace and order and to
prevent the maintaining of military or armed forces other than those authorised by the Con-stitution―;
that the Irish Government thereby gave the Secretary-General suffi-cient information of the measures
taken and the reasons therefore; that, in the second place, the Irish Government brought this
information to the Secretary-General's attention only twelve days after the entry into force of the
measures derogating from their obligations under the Convention; and that the notifica-tion was
therefore made without delay […]
Whereas the Court accordingly finds that, in the present case, the Irish Govern-ment fulfilled their
obligations as Party to the Convention under Article 15, paragraph 3 (art. 15-3), of the Convention
[…]

19
ECtHR 18.01.1978, Ireland v. United Kingdom, Application No. 5310/71

On the „extent strictly required―


206. The Contracting States may make use of their right of derogation only „to the extent strictly
required by the exigencies of the situation―. The Irish Gov-ernment consider the „extent strictly
required― to have been exceeded, whereas the British Government and the Commission assert the
contrary.
The role of the Court
207. The limits on the Court‘s powers of review […] are particularly apparent where Article 15 (art.
15) is concerned.
It falls in the first place to each Contracting State, with its responsibility for „the life of [its] nation―,
to determine whether that life is threatened by a „public emergency― and, if so, how far it is
necessary to go in attempting to overcome the emergency. By reason of their direct and continuous
contact with the press-ing needs of the moment, the national authorities are in principle in a better po-
sition than the international judge to decide both on the presence of such an emergency and on the
nature and scope of derogations necessary to avert it. In this matter Article 15 para. 1 (art. 15-1) leaves
those authorities a wide margin of appreciation.
Nevertheless, the States do not enjoy an unlimited power in this respect. The Court, which, with the
Commission, is responsible for ensuring the observance of the States‘ engagements (Article 19) (art.
19), is empowered to rule on whether the States have gone beyond the „extent strictly required by the
exigen-cies― of the crisis (Lawless judgment of 1 July 1961, Series A no. 3, p. 55, para. 22, and pp.
57-59, paras. 36-38). The domestic margin of appreciation is thus accompanied by a European
supervision.

20
ECtHR 26.05.1993, Brannigan and McBride v. United Kingdom, Application No. 14553/89;
14554/89

36. The applicants, Mr Brannigan and Mr McBride, were detained under sec-tion 12 (1) (b) of the
1984 Act in early January 1989 very shortly after the Gov-ernment‘s derogation of 23 December 1988
under Article 15 (art. 15) of the Convention […] Their detention lasted for periods of six days,
fourteen hours and thirty minutes, and four days, six hours and twenty-five minutes respective-ly […].
They complained of violations of Article 5 paras. 3 and 5 (art. 5-3, art. 5-5) of the Convention. The
relevant parts of Article 5 (art. 5) are as follows:
„1. Everyone has the right to liberty and security of person. No one shall be deprived of his liberty
save in the following cases and in accordance with a pro-cedure prescribed by law:
...
(c) the lawful arrest or detention of a person effected for the purpose of bringing him before the
competent legal authority on reasonable suspicion of having committed an offence ...;
...
3. Everyone arrested or detained in accordance with the provisions of paragraph 1 (c) of this Article
(art. 5-1-c) shall be brought promptly before a judge or oth-er officer authorised by law to exercise
judicial power ...
...
5. Everyone who has been the victim of arrest or detention in contravention of the provisions of this
Article (art. 5) shall have an enforceable right to compen-sation.―
37. The Government, noting that both of the applicants were detained for longer periods than the
shortest period found by the Court to be in breach of Article 5 para. 3 (art. 5-3) in the case of Brogan
and Others, conceded that the require-ment of promptness had not been respected in the present cases
(see paragraph 30 above). They further accepted that, in the absence of an enforceable right to
compensation in respect of the breach of Article 5 para. 3 (art. 5-3), Article 5 para. 5 (art. 5-5) had not
been complied with.
Having regard to its judgment in the case of Brogan and Others, the Court finds that Article 5 paras. 3
and 5 (art. 5-3, art. 5-5) have not been respected (loc. cit., pp. 30-35, paras. 55-62 and 66-67).
38. However, the Government further submitted that the failure to observe these requirements of
Article 5 (art. 5) had been met by their derogation of 23 De-cember 1988 under Article 15 (art. 15) of
the Convention. The Court must therefore examine the validity of the Government‘s derogation in the
light of this provision. It recalls at the outset that the question whether any derogation 61

21
from the United Kingdom‘s obligations under the Convention might be permiss-ible under Article 15
(art. 15) by reason of the terrorist campaign in Northern Ireland was specifically left open by the Court
in the Brogan and Others case (loc. cit., pp. 27-28, para. 48).
Validity of the United Kingdom‘s derogation under Article 15 (art. 15)
[…]
41. The applicants argued that it would be inconsistent with Article 15 para. 2 (art. 15-2) if, in
derogating from safeguards recognised as essential for the pro-tection of non-derogable rights such as
Articles 2 and 3 (art. 2, art. 3), the na-tional authorities were to be afforded a wide margin of
appreciation. This was especially so where the emergency was of a quasi-permanent nature such as
that existing in Northern Ireland. To do so would also be inconsistent with the Bro-gan and Others
judgment where the Court had regarded judicial control as one of the fundamental principles of a
democratic society and had already - they claimed - extended to the Government a margin of
appreciation by taking into account in paragraph 58 (p. 32) the context of terrorism in Northern
Ireland.
42. In their written submissions, Amnesty International maintained that strict scrutiny was required by
the Court when examining derogation from fundamen-tal procedural guarantees which were essential
for the protection of detainees at all times, but particularly in times of emergency. Liberty, Interights
and the Committee on the Administration of Justice („Liberty and Others―) submitted for their part
that, if States are to be allowed a margin of appreciation at all, it should be narrower the more
permanent the emergency becomes.
43. The Court recalls that it falls to each Contracting State, with its responsibili-ty for „the life of [its]
nation―, to determine whether that life is threatened by a „public emergency― and, if so, how far it is
necessary to go in attempting to overcome the emergency. By reason of their direct and continuous
contact with the pressing needs of the moment, the national authorities are in principle in a better
position than the international judge to decide both on the presence of such an emergency and on the
nature and scope of derogations necessary to avert it. Accordingly, in this matter a wide margin of
appreciation should be left to the national authorities (see the Ireland v. the United Kingdom judgment
of 18 January 1978, Series A no. 25, pp. 78-79, para. 207).
Nevertheless, Contracting Parties do not enjoy an unlimited power of apprecia-tion. It is for the Court
to rule on whether inter alia the States have gone beyond the „extent strictly required by the
exigencies― of the crisis. The domestic mar-gin of appreciation is thus accompanied by a European
supervision (ibid.). At the same time, in exercising its supervision the Court must give appropriate
weight to such relevant factors as the nature of the rights affected by the deroga-tion, the
circumstances leading to, and the duration of, the emergency situation.

22
ECtHR 19.02.2009 A. and Others v. UK, Application. no. 3455/05

Excerpts

3. The merits

161. The Court must first ascertain whether the applicants' detention was permissible under Article 5 §
1(f), because if that subparagraph does provide a defence to the complaints under Article 5 § 1, it will
not be necessary to determine whether or not the derogation was valid (see Ireland v. the United
Kingdom, judgment of 18 January 1978, § 191, Series A no. 25).

a. Whether the applicants were lawfully detained in accordance with Article 5 § 1(f) of the Convention

162. Article 5 enshrines a fundamental human right, namely the protection of the individual against
arbitrary interference by the State with his or her right to liberty (Aksoy v. Turkey, judgment of 18
December 1996, § 76, Reports 1996-VI). The text of Article 5 makes it clear that the guarantees it
contains apply to “everyone”.

163. Sub-paragraphs (a) to (f) of Article 5 § 1 contain an exhaustive list of permissible grounds on
which persons may be deprived of their liberty and no deprivation of liberty will be lawful unless it
falls within one of those grounds (Saadi v. the United Kingdom [GC], no. 13229/03, § 43, ECHR
2008). One of the exceptions, contained in subparagraph (f), permits the State to control the liberty of
aliens in an immigration context (idem., § 64). The Government contend that the applicants' detention
was justified under the second limb of that subparagraph and that they were lawfully detained as
persons “against whom action is being taken with a view to deportation or extradition”.

164. Article 5 § 1(f) does not demand that detention be reasonably considered necessary, for example
to prevent the individual from committing an offence or fleeing. Any deprivation of liberty under the
second limb of Article 5 § 1(f) will be justified, however, only for as long as deportation or extradition
proceedings are in progress. If such proceedings are not prosecuted with due diligence, the detention
will cease to be permissible under Article 5 § 1(f) (Chahal, cited above, § 113). The deprivation of
liberty must also be “lawful”. Where the “lawfulness” of detention is in issue, including the question
whether “a procedure prescribed by law” has been followed, the Convention refers essentially to
national law and lays down the obligation to conform to the substantive and procedural rules of
national law. Compliance with national law is not, however, sufficient: Article 5 § 1 requires in
addition that any deprivation of liberty should be in keeping with the purpose of protecting the
individual from arbitrariness. It is a fundamental principle that no detention which is arbitrary can be
compatible with Article 5 § 1 and the notion of “arbitrariness” in Article 5 § 1 extends beyond lack of
conformity with national law, so that a deprivation of liberty may be lawful in terms of domestic law
but still arbitrary and thus contrary to the Convention (Saadi v. the United Kingdom, cited above, §
67). To avoid being branded as arbitrary, detention under Article 5 § 1(f) must be carried out in good
faith; it must be closely connected to the ground of detention relied on by the Government; the place
and conditions of detention should be appropriate; and the length of the detention should not exceed
that reasonably required for the purpose pursued (see, mutatis mutandis, Saadi v. the United Kingdom,
cited above, § 74).

165. The first, third, and sixth applicants were taken into detention under the 2001 Act on 19
December 2001; the seventh applicant was detained on 9 February 2002; the eighth applicant, on 23
October 2002; the ninth applicant, on 22 April 2002; the tenth applicant, on 14 January 2003; and the
eleventh applicant, on 2 October 2003. None of these applicants was released until 10-11 March 2005.
The fifth applicant was detained between 19 December 2001 and 22 April 2004, when he was released
on bail subject to stringent conditions. The second and fourth applicants were also detained on 19

23
December 2001 but the second applicant was released on 22 December 2001, following his decision to
return to Morocco, and the fourth applicant was released on 13 March 2002, following his decision to
go to France. The applicants were held throughout in high security conditions at either Belmarsh or
Woodhill Prisons or Broadmoor Hospital. It cannot, therefore, be disputed that they were deprived of
their liberty within the meaning of Article 5 § 1 (see Engel and Others v. the Netherlands, judgment of
8 June 1976, Series A no. 22).

166. The applicants were foreign nationals whom the Government would have deported from the
United Kingdom had it been possible to find a State to receive them where they would not face a real
risk of being subjected to treatment contrary to Article 3 of the Convention (Saadi v. Italy [GC], no.
37201/06, §§ 125 and 127, ECHR 2008). Although the respondent State's obligations under Article 3
prevented the removal of the applicants from the United Kingdom, the Secretary of State nonetheless
considered it necessary to detain them for security reasons, because he believed that their presence in
the country was a risk to national security and suspected that they were or had been concerned in the
commission, preparation or instigation of acts of international terrorism and were members of,
belonged to or had links with an international terrorist group. Such detention would have been
unlawful under domestic law prior to the passing of Part 4 of the 2001 Act, since the 1984 judgment in
Hardial Singh entailed that the power of detention could not be exercised unless the person subject to
the deportation order could be deported within a reasonable time (see paragraph 87 above). Thus, it
was stated in the derogation notice lodged under Article 15 of the Convention that extended powers
were required to arrest and detain a foreign national “where removal or deportation is not for the time
being possible, with the consequence that the detention would be unlawful under existing domestic
law powers” (see paragraph 11 above).

167. One of the principal assumptions underlying the derogation notice, the 2001 Act and the decision
to detain the applicants was, therefore, that they could not be removed or deported “for the time being”
(see paragraphs 11 and 90 above). There is no evidence that during the period of the applicants'
detention there was, except in respect of the second and fourth applicants, any realistic prospect of
their being expelled without this giving rise to a real risk of ill-treatment contrary to Article 3. Indeed,
the first applicant is stateless and the Government have not produced any evidence to suggest that
there was another State willing to accept him. It does not appear that the Government entered into
negotiations with Algeria or Jordan, with a view to seeking assurances that the applicants who were
nationals of those States would not be ill-treated if returned, until the end of 2003 and no such
assurance was received until August 2005 (see paragraph 86 above). In these circumstances, the Court
does not consider that the respondent Government's policy of keeping the possibility of deporting the
applicants “under active review” was sufficiently certain or determinative to amount to “action ...
being taken with a view to deportation”.

168. The exceptions to this conclusion were the second applicant, who was detained for only three
days prior to his return to Morocco, and the fourth applicant, who left the United Kingdom for France
on 13 March 2002, having been detained for just under three months (see paragraphs 35 and 41
above). The Court considers that during these periods of detention it could reasonably be said that
action was being taken against these applicants with a view to deportation, in that it appears that the
authorities were still at that stage in the course of establishing their nationalities and investigating
whether their removal to their countries of origin or to other countries would be possible (see
Gebremedhin [Gaberamadhien] v. France, no. 25389/05, § 74, 26 April 2007). Accordingly, there has
been no violation of Article 5 § 1 of the Convention in respect of the second and fourth applicants.

169. It is true that even the applicants who were detained the longest were not held for as long as the
applicant in Chahal (cited above), where the Court found no violation of Article 5 § 1 despite his
imprisonment for over six years. However, in the Chahal case, throughout the entire period of the
detention, proceedings were being actively and diligently pursued, before the domestic authorities and
the Court, in order to determine whether it would be lawful and compatible with Article 3 of the

24
Convention to proceed with the applicant's deportation to India. The same cannot be said in the present
case, where the proceedings have, instead, been primarily concerned with the legality of the detention.

170. In the circumstances of the present case it cannot be said that the first, third, fifth, sixth, seventh,
eighth, ninth, tenth and eleventh applicants were persons “against whom action [was] being taken with
a view to deportation or extradition”. Their detention did not, therefore, fall within the exception to the
right to liberty set out in paragraph 5 § 1(f) of the Convention. This is a conclusion which was also,
expressly or impliedly, reached by a majority of the members of the House of Lords (see paragraph 17
above).

171. It is, instead, clear from the terms of the derogation notice and Part 4 of the 2001 Act that the
applicants were certified and detained because they were suspected of being international terrorists and
because it was believed that their presence at liberty in the United Kingdom gave rise to a threat to
national security. The Court does not accept the Government's argument that Article 5 § 1 permits a
balance to be struck between the individual's right to liberty and the State's interest in protecting its
population from terrorist threat. This argument is inconsistent not only with the Court's jurisprudence
under sub-paragraph (f) but also with the principle that paragraphs (a) to (f) amount to an exhaustive
list of exceptions and that only a narrow interpretation of these exceptions is compatible with the aims
of Article 5. If detention does not fit within the confines of the paragraphs as interpreted by the Court,
it cannot be made to fit by an appeal to the need to balance the interests of the State against those of
the detainee.

172. The Court recalls that it has, on a number of occasions, found internment and preventive
detention without charge to be incompatible with the fundamental right to liberty under Article 5 § 1,
in the absence of a valid derogation under Article 15 (see Lawless v. Ireland (No. 3), judgment of 1
July 1961, §§ 13 and 14, Series A no. 3; Ireland v. the United Kingdom, cited above, §§ 194-196 and
212-213). It must now, therefore, consider whether the United Kingdom's derogation was valid.

b. Whether the United Kingdom validly derogated from its obligations under Article 5 § 1 of the
Convention

i. The Court's approach

173. The Court recalls that it falls to each Contracting State, with its responsibility for “the life of [its]
nation”, to determine whether that life is threatened by a “public emergency” and, if so, how far it is
necessary to go in attempting to overcome the emergency. By reason of their direct and continuous
contact with the pressing needs of the moment, the national authorities are in principle better placed
than the international judge to decide both on the presence of such an emergency and on the nature and
scope of the derogations necessary to avert it. Accordingly, in this matter a wide margin of
appreciation should be left to the national authorities. Nonetheless, Contracting Parties do not enjoy an
unlimited discretion. It is for the Court to rule whether, inter alia, the States have gone beyond the
“extent strictly required by the exigencies” of the crisis. The domestic margin of appreciation is thus
accompanied by a European supervision. In exercising this supervision, the Court must give
appropriate weight to such relevant factors as the nature of the rights affected by the derogation and
the circumstances leading to, and the duration of, the emergency situation (Ireland v. the United
Kingdom, cited above, § 207; Brannigan and McBride v. the United Kingdom, judgment of 26 May
1993, § 43, Series A no. 258; Aksoy, cited above, § 68).

174. The object and purpose underlying the Convention, as set out in Article 1, is that the rights and
freedoms should be secured by the Contracting State within its jurisdiction. It is fundamental to the
machinery of protection established by the Convention that the national systems themselves provide
redress for breaches of its provisions, with the Court exercising a supervisory role subject to the
principle of subsidiarity (Z. and Others v. the United Kingdom, no. 29392/95, § 103, ECHR 2001-V).
Moreover, the domestic courts are part of the “national authorities” to which the Court affords a wide

25
margin of appreciation under Article 15. In the unusual circumstances of the present case, where the
highest domestic court has examined the issues relating to the State's derogation and concluded that
there was a public emergency threatening the life of the nation but that the measures taken in response
were not strictly required by the exigencies of the situation, the Court considers that it would be
justified in reaching a contrary conclusion only if satisfied that the national court had misinterpreted or
misapplied Article 15 or the Court's jurisprudence under that Article or reached a conclusion which
was manifestly unreasonable.

ii. Whether there was a “public emergency threatening the life of the nation”

175. The applicants argued that there had been no public emergency threatening the life of the British
nation, for three main reasons: first, the emergency was neither actual nor imminent; secondly, it was
not of a temporary nature; and, thirdly, the practice of other States, none of which had derogated from
the Convention, together with the informed views of other national and international bodies, suggested
that the existence of a public emergency had not been established.

176. The Court recalls that in Lawless, cited above, § 28, it held that in the context of Article 15 the
natural and customary meaning of the words “other public emergency threatening the life of the
nation” was sufficiently clear and that they referred to “an exceptional situation of crisis or emergency
which affects the whole population and constitutes a threat to the organised life of the community of
which the State is composed”. In the Greek Case (1969) 12 YB 1, § 153, the Commission held that, in
order to justify a derogation, the emergency should be actual or imminent; that it should affect the
whole nation to the extent that the continuance of the organised life of the community was threatened;
and that the crisis or danger should be exceptional, in that the normal measures or restrictions,
permitted by the Convention for the maintenance of public safety, health and order, were plainly
inadequate. In Ireland v United Kingdom, cited above, §§ 205 and 212, the parties were agreed, as
were the Commission and the Court, that the Article 15 test was satisfied, since terrorism had for a
number of years represented “a particularly far-reaching and acute danger for the territorial integrity of
the United Kingdom, the institutions of the six counties and the lives of the province's inhabitants”.
The Court reached similar conclusions as regards the continuing security situation in Northern Ireland
in Brannigan and McBride, cited above, and Marshall v. the United Kingdom (dec.), no. 41571/98, 10
July 2001. In Aksoy, cited above, it accepted that Kurdish separatist violence had given rise to a
“public emergency” in Turkey.

177. Before the domestic courts, the Secretary of State adduced evidence to show the existence of a
threat of serious terrorist attacks planned against the United Kingdom. Additional closed evidence was
adduced before SIAC. All the national judges accepted that the danger was credible (with the
exception of Lord Hoffmann, who did not consider that it was of a nature to constitute “a threat to the
life of the nation”: see paragraph 18 above). Although when the derogation was made no al'Qaeda
attack had taken place within the territory of the United Kingdom, the Court does not consider that the
national authorities can be criticised, in the light of the evidence available to them at the time, for
fearing that such an attack was “imminent”, in that an atrocity might be committed without warning at
any time. The requirement of imminence cannot be interpreted so narrowly as to require a State to wait
for disaster to strike before taking measures to deal with it. Moreover, the danger of a terrorist attack
was, tragically, shown by the bombings and attempted bombings in London in July 2005 to have been
very real. Since the purpose of Article 15 is to permit States to take derogating measures to protect
their populations from future risks, the existence of the threat to the life of the nation must be assessed
primarily with reference to those facts which were known at the time of the derogation. The Court is
not precluded, however, from having regard to information which comes to light subsequently (see,
mutatis mutandis, Vilvarajah and others v. the United Kingdom, judgment of 30 October 1991, §
107(2), Series A no. 215).

178. While the United Nations Human Rights Committee has observed that measures derogating from
the provisions of the ICCPR must be of “an exceptional and temporary nature” (see paragraph 109

26
above), the Court's case-law has never, to date, explicitly incorporated the requirement that the
emergency be temporary, although the question of the proportionality of the response may be linked to
the duration of the emergency. Indeed, the cases cited above, relating to the security situation in
Northern Ireland, demonstrate that it is possible for a “public emergency” within the meaning of
Article 15 to continue for many years. The Court does not consider that derogating measures put in
place in the immediate aftermath of the al'Qaeda attacks in the United States of America, and reviewed
on an annual basis by Parliament, can be said to be invalid on the ground that they were not
“temporary”.

179. The applicants' argument that the life of the nation was not threatened is principally founded on
the dissenting opinion of Lord Hoffman, who interpreted the words as requiring a threat to the
organised life of the community which went beyond a threat of serious physical damage and loss of
life. It had, in his view, to threaten “our institutions of government or our existence as a civil
community” (see paragraph 18 above). However, the Court has in previous cases been prepared to take
into account a much broader range of factors in determining the nature and degree of the actual or
imminent threat to the “nation” and has in the past concluded that emergency situations have existed
even though the institutions of the State did not appear to be imperilled to the extent envisaged by
Lord Hoffman.

180. As previously stated, the national authorities enjoy a wide margin of appreciation under Article
15 in assessing whether the life of their nation is threatened by a public emergency. While it is striking
that the United Kingdom was the only Convention State to have lodged a derogation in response to the
danger from al'Qaeda, although other States were also the subject of threats, the Court accepts that it
was for each Government, as the guardian of their own people's safety, to make their own assessment
on the basis of the facts known to them. Weight must, therefore, attach to the judgment of the United
Kingdom's executive and Parliament on this question. In addition, significant weight must be accorded
to the views of the national courts, who were better placed to assess the evidence relating to the
existence of an emergency.

181. On this first question, the Court accordingly shares the view of the majority of the House of
Lords that there was a public emergency threatening the life of the nation.

Iii Whether the measures were strictly required by the exigencies of the situation

182. Article 15 provides that the State may take measures derogating from its obligations under the
Convention only “to the extent strictly required by the exigencies of the situation”. As previously
stated, the Court considers that it should in principle follow the judgment of the House of Lords on the
question of the proportionality of the applicants' detention, unless it can be shown that the national
court misinterpreted the Convention or the Court's case-law or reached a conclusion which was
manifestly unreasonable. It will consider the Government's challenges to the House of Lords'
judgment against this background.

183. The Government contended, first, that the majority of the House of Lords should have afforded a
much wider margin of appreciation to the executive and Parliament to decide whether the applicants'
detention was necessary. A similar argument was advanced before the House of Lords, where the
Attorney General submitted that the assessment of what was needed to protect the public was a matter
of political rather than judicial judgment (see paragraph 19 above).

184. When the Court comes to consider a derogation under Article 15, it allows the national authorities
a wide margin of appreciation to decide on the nature and scope of the derogating measures necessary
to avert the emergency. Nonetheless, it is ultimately for the Court to rule whether the measures were
“strictly required”. In particular, where a derogating measure encroaches upon a fundamental
Convention right, such as the right to liberty, the Court must be satisfied that it was a genuine response
to the emergency situation, that it was fully justified by the special circumstances of the emergency

27
and that adequate safeguards were provided against abuse (see, for example, Brannigan and McBride,
cited above, §§ 48-66; Aksoy, cited above, §§ 71-84; and the principles outlined in paragraph 173
above). The doctrine of the margin of appreciation has always been meant as a tool to define relations
between the domestic authorities and the Court. It cannot have the same application to the relations
between the organs of State at the domestic level. As the House of Lords held, the question of
proportionality is ultimately a judicial decision, particularly in a case such as the present where the
applicants were deprived of their fundamental right to liberty over a long period of time. In any event,
having regard to the careful way in which the House of Lords approached the issues, it cannot be said
that inadequate weight was given to the views of the executive or of Parliament.

185. The Government also submitted that the House of Lords erred in examining the legislation in the
abstract rather than considering the applicants' concrete cases. However, in the Court's view, the
approach under Article 15 is necessarily focussed on the general situation pertaining in the country
concerned, in the sense that the court - whether national or international - is required to examine the
measures that have been adopted in derogation of the Convention rights in question and to weigh them
against the nature of the threat to the nation posed by the emergency. Where, as here, the measures are
found to be disproportionate to that threat and to be discriminatory in their effect, there is no need to
go further and examine their application in the concrete case of each applicant.

186. The Government's third ground of challenge to the House of Lords' decision was directed
principally at the approach taken towards the comparison between non-national and national suspected
terrorists. The Court, however, considers that the House of Lords was correct in holding that the
impugned powers were not to be seen as immigration measures, where a distinction between nationals
and non-nationals would be legitimate, but instead as concerned with national security. Part 4 of the
2001 Act was designed to avert a real and imminent threat of terrorist attack which, on the evidence,
was posed by both nationals and non-nationals. The choice by the Government and Parliament of an
immigration measure to address what was essentially a security issue had the result of failing
adequately to address the problem, while imposing a disproportionate and discriminatory burden of
indefinite detention on one group of suspected terrorists. As the House of Lords found, there was no
significant difference in the potential adverse impact of detention without charge on a national or on a
non-national who in practice could not leave the country because of fear of torture abroad.

187. Finally, the Government advanced two arguments which the applicants claimed had not been
relied on before the national courts. Certainly, there does not appear to be any reference to them in the
national courts' judgments or in the open material which has been put before the Court. In these
circumstances, even assuming that the principle of subsidiarity does not prevent the Court from
examining new grounds, it would require persuasive evidence in support of them.

188. The first of the allegedly new arguments was that it was legitimate for the State, in confining the
measures to non-nationals, to take into account the sensitivities of the British Muslim population in
order to reduce the chances of recruitment among them by extremists. However, the Government has
not placed before the Court any evidence to suggest that British Muslims were significantly more
likely to react negatively to the detention without charge of national rather than foreign Muslims
reasonably suspected of links to al'Qaeda. In this respect the Court notes that the system of control
orders, put in place by the Prevention of Terrorism Act 2005, does not discriminate between national
and non-national suspects.

189. The second allegedly new ground relied on by the Government was that the State could better
respond to the terrorist threat if it were able to detain its most serious source, namely non-nationals. In
this connection, again the Court has not been provided with any evidence which could persuade it to
overturn the conclusion of the House of Lords that the difference in treatment was unjustified. Indeed,
the Court notes that the national courts, including SIAC, which saw both the open and the closed
material, were not convinced that the threat from non-nationals was more serious than that from
nationals.

28
190. In conclusion, therefore, the Court, like the House of Lords, and contrary to the Government's
contention, finds that the derogating measures were disproportionate in that they discriminated
unjustifiably between nationals and non-nationals. It follows there has been a violation of Article 5 § 1
in respect of the first, third, fifth, sixth, seventh, eighth, ninth, tenth and eleventh applicants.

29
CONVENTION1 AGAINST TORTURE AND OTHER CRUEL, INHUMAN
OR DEGRADING TREATMENT OR PUNISHMENT (1987)

Article 1.
1. For the purposes of this Convention, the term "torture" means any
act by which severe pain or suffering, whether physical or mental, is intentionally inflicted
on a person for such purposes as obtaining from him or a third person informa-
tion or a confession, punishing him for an act he or a third person has committed or
is suspected of having committed, or intimidating or coercing him or a third person,
or for any reason based on discrimination of any kind, when such pain or suffering is
inflicted by or at the instigation of or with the consent or acquiescence of a public official
or other person acting in an official capacity. It does not include pain or suffering arising
only from, inherent in or incidental to lawful sanctions.
2. This article is without prejudice to any international instrument or national
legislation which does or may contain provisions of wider application.

Article 2.
1. Each State Party shall take effective legislative, administrative,
judicial or other measures to prevent acts of torture in any territory under its jurisdiction.
2. No exceptional circumstances whatsoever, whether a state of war or a threat
of war, internal political instability or any other public emergency, may be invoked as
a justification of torture.
3. An order from a superior officer or a public authority may not be invoked as
a justification of torture.

Article 3.
1. No State Party shall expel, return (refouler) or extradite a person
to another State where there are substantial grounds for believing that he would be in
danger of being subjected to torture.
2. For the purpose of determining whether there are such grounds, the competent
authorities shall take into account all relevant considerations including, where applicable,
the existence in the State concerned of a consistent pattern of gross, flagrant or mass
violations of human rights.

Article 4.
1. Each State Party shall ensure that all acts of torture are offences under
its criminal law. The same shall apply to an attempt to commit torture and to an act
by any person which constitutes complicity or participation in torture.
2. Each State Party shall make these offences punishable by appropriate penalties
which take into account their grave nature.

Article 5.
1. Each State Party shall take such measures as may be necessary to
establish its jurisdiction over the offences referred to in article 4 in the following cases:
(a) When the offences are committed in any territory under its jurisdiction or on board
a ship or aircraft registered in that State;
(b) When the alleged offender is a national of that State;
(c) When the victim is a national of that State if that State considers it appropriate.

30
2. Each State Party shall likewise take such measures as may be necessary to
establish its jurisdiction over such offences in cases where the alleged offender is present
in any territory under its jurisdiction and it does not extradite him pursuant to article 8
to any of the States mentioned in paragraph 1 of this article.
3. This Convention does not exclude any criminal jurisdiction exercised in
accordance with internal law.

Article 6.
1. Upon being satisfied, after an examination of information available
to it, that the circumstances so warrant, any State Party in whose territory a person alleged
to have committed any offence referred to in article 4 is present shall take him into custody
or take other legal measures to ensure his presence. The custody and other legal measures
shall be as provided in the law of that State but may be continued only for such time
as is necessary to enable any criminal or extradition proceedings to be instituted.
2. Such State shall immediately make a preliminary inquiry into the facts.
3. Any person in custody pursuant to paragraph 1 of this article shall be assisted
in communicating immediately with the nearest appropriate representative of the State
of which he is a national, or, if he is a stateless person, with the representative of the
State where he usually resides.
4. When a State, pursuant to this article, has taken a person into custody, it shall
immediately notify the States referred to in article 5, paragraph 1, of the fact that such
person is in custody and of the circumstances which warrant his detention. The State
which makes the preliminary inquiry contemplated in paragraph 2 of this article shall
promptly report its findings to the said States and shall indicate whether it intends to
exercise jurisdiction.

Article 7.
1. The State Party in the territory under whose jurisdiction a person
alleged to have committed any offence referred to in article 4 is found shall in the cases
contemplated in article 5, if it does not extradite him, submit the case to its competent
authorities for the purpose of prosecution.
2. These authorities shall take their decision in the same manner as in the case
of any ordinary offence of a serious nature under the law of that State. In the cases referred
to in article 5, paragraph 2, the standards of evidence required for prosecution and
conviction shall in no way be less stringent than those which apply in the cases referred
to in article 5, paragraph 1.
. 3. Any person regarding whom proceedings are brought in connection with any
of the offences referred to in article 4 shall be guaranteed fair treatment at all stages
of the proceedings.

Article 8.
1. The offences referred to in article 4 shall be deemed to be included
as extraditable offences in any extradition treaty existing between States Parties. States
Parties undertake to include such offences as extraditable offences in every extradition
treaty to be concluded between them.
2. If a State Party which makes extradition conditional on the existence of a treaty
receives a request for extradition from another State Party with which it has no extradition
treaty, it may consider this Convention as the legal basis for extradition in respect of

31
such offences. Extradition shall be subject to the other conditions provided by the law
of the requested State.
3. States Parties which do not make extradition conditional on the existence of a
treaty shall recognize such offences as extraditable offences between themselves subject
to the conditions provided by the law of the requested State.
4. Such offences shall be treated, for the purpose of extradition between States
Parties, as if they had been committed not only in the place in which they occurred but
also in the territories.of the States required to establish their jurisdiction in accordance
with article 5, paragraph 1.

Article 9.
1. States Parties shall afford one another the greatest measure of
assistance in connection with criminal proceedings brought in respect of any of the
offences referred to in article 4, including the supply of all evidence at their disposal
necessary for the proceedings.
2. States Parties shall carry out their obligations under paragraph 1 of this article
in conformity with any treaties on mutual judicial assistance that may exist between them.

Article 10.
1. Each State Party shall ensure that education and information regard
ing the prohibition against torture are fully included in the training of law enforcement
personnel, civil or military, medical personnel, public officials and other persons who
may be involved in the custody, interrogation or treatment of any individual subjected
to any form of arrest, detention or imprisonment.
2. Each State Party shall include this prohibition in the rules or instructions issued
in regard to the duties and functions of any such persons.

Article 11.
Each State Party shall keep under systematic review interrogation rules,
instructions, methods and practices as well as arrangements for the custody and treatment
of persons subjected to any form of arrest, detention or imprisonment in any territory
under its jurisdiction, with a view to preventing any cases of torture.

Article 12.
Each State Party shall ensure that its competent authorities proceed
to a prompt and impartial investigation, wherever there is reasonable ground to believe
that an act of torture has been committed in any territory under its jurisdiction.

Article 13.
Each State Party shall ensure that any individual who alleges he has
been subjected to torture in any territory under its jurisdiction has the right to complain
to, and to have his case promptly and impartially examined by, its competent authorities.
Steps shall be taken to ensure that the complainant and witnesses are protected against
all ill-treatment or intimidation as a consequence of his complaint or any evidence given.

Article 14.
1. Each State Party shall ensure in its legal system that the victim of
an act of torture obtains redress and has an enforceable right to fair and adequate

32
compensation, including the means for as full rehabilitation as possible. In the event
of the death of the victim as a result of an act of torture, his dependants shall be entitled
to compensation.
2. Nothing in this article shall affect any right of the victim or other persons to
compensation which may exist under national law.

Article 15.
Each State Party shall ensure that any statement which is established
to have been made as a result of torture shall not be invoked as evidence in any proceedings,
except against a person accused of torture as evidence that the statement was made.

Article 16.
1. Each State Party shall undertake to prevent in any territory under
its jurisdiction other acts of cruel, inhuman or degrading treatment or punishment which
do not amount to torture as defined in article 1, when such acts are committed by or
at the instigation of or with the consent or acquiescence of a public official or other
person acting in an official capacity. In particular, the obligations contained in articles 10,
11, 12 and 13 shall apply with the substitution for references to torture of references to
other forms of cruel, inhuman or degrading treatment or punishment.
2. The provisions of this Convention are without prejudice to the provisions of any
other international instrument or national law which prohibits cruel, inhuman or degrad
ing treatment or punishment or which relates to extradition or expulsion.

33
CASE OF IRELAND v. THE UNITED KINGDOM

(Application no. 5310/71)

JUDGMENT 18 January 1978

96. Twelve persons arrested on 9 August 1971 and two persons arrested in October 1971 were
singled out and taken to one or more unidentified centres. There, between 11 to 17 August and 11 to
18 October respectively, they were submitted to a form of "interrogation in depth" which involved the
combined application of five particular techniques.
These methods, sometimes termed "disorientation" or "sensory deprivation" techniques, were not
used in any cases other than the fourteen so indicated above. It emerges from the Commission’s
establishment of the facts that the techniques consisted of:
(a) wall-standing: forcing the detainees to remain for periods of some hours in a "stress position",
described by those who underwent it as being "spread eagled against the wall, with their fingers put
high above the head against the wall, the legs spread apart and the feet back, causing them to stand on
their toes with the weight of the body mainly on the fingers";
(b) hooding: putting a black or navy coloured bag over the detainees’ heads and, at least initially,
keeping it there all the time except during interrogation;
(c) subjection to noise: pending their interrogations, holding the detainees in a room where there
was a continuous loud and hissing noise;
(d) deprivation of sleep: pending their interrogations, depriving the detainees of sleep;
(e) deprivation of food and drink: subjecting the detainees to a reduced diet during their stay at the
centre and pending interrogations.
[...]

(a) The "five techniques"


165. The facts concerning the five techniques are summarised at paragraphs 96-104 and 106-107
above. In the Commission’s estimation, those facts constituted a practice not only of inhuman and
degrading treatment but also of torture. The applicant Government asks for confirmation of this
opinion which is not contested before the Court by the respondent Government.
166. The police used the five techniques on fourteen persons in 1971 that is on twelve including T
6 and T 13, in August before the Compton Committee was set up, and on two in October whilst that
Committee was carrying out its enquiry. Although never authorised in writing in any official
document, the five techniques were taught orally by the English Intelligence Centre to members of the
RUC at a seminar held in April 1971. There was accordingly a practice.
167. The five techniques were applied in combination, with premeditation and for hours at a
stretch; they caused, if not actual bodily injury, at least intense physical and mental suffering to the
persons subjected thereto and also led to acute psychiatric disturbances during interrogation. They
accordingly fell into the category of inhuman treatment within the meaning of Article 3 (art. 3). The
techniques were also degrading since they were such as to arouse in their victims feelings of fear,
anguish and inferiority capable of humiliating and debasing them and possibly breaking their physical
or moral resistance.
On these two points, the Court is of the same view as the Commission.
In order to determine whether the five techniques should also be qualified as torture, the Court
must have regard to the distinction, embodied in Article 3 (art. 3), between this notion and that of
inhuman or degrading treatment.

34
In the Court’s view, this distinction derives principally from a difference in the intensity of the
suffering inflicted.
The Court considers in fact that, whilst there exists on the one hand violence which is to be
condemned both on moral grounds and also in most cases under the domestic law of the Contracting
States but which does not fall within Article 3 (art. 3) of the Convention, it appears on the other hand
that it was the intention that the Convention, with its distinction between "torture" and "inhuman or
degrading treatment", should by the first of these terms attach a special stigma to deliberate inhuman
treatment causing very serious and cruel suffering.
Moreover, this seems to be the thinking lying behind Article 1 in fine of Resolution 3452 (XXX)
adopted by the General Assembly of the United Nations on 9 December 1975, which declares:
"Torture constitutes an aggravated and deliberate form of cruel, inhuman or degrading treatment or
punishment".
Although the five techniques, as applied in combination, undoubtedly amounted to inhuman and
degrading treatment, although their object was the extraction of confessions, the naming of others
and/or information and although they were used systematically, they did not occasion suffering of the
particular intensity and cruelty implied by the word torture as so understood.
168. The Court concludes that recourse to the five techniques amounted to a practice of inhuman
and degrading treatment, which practice was in breach of Article 3 (art. 3).

35
ECtHR 07.07.1989 Soering v. UK Application no. 14038/88

AS TO THE FACTS
I. PARTICULAR CIRCUMSTANCES OF THE CASE
11. The applicant, Mr Jens Soering, was born on 1 August 1966 and is a German national. He is
currently detained in prison in England pending extradition to the United States of America to face
charges of murder in the Commonwealth of Virginia.
12. The homicides in question were committed in Bedford County, Virginia, in March 1985. The
victims, William Reginald Haysom (aged 72) and Nancy Astor Haysom (aged 53), were the parents of
the applicant’s girlfriend, Elizabeth Haysom, who is a Canadian national. Death in each case was the
result of multiple and massive stab and slash wounds to the neck, throat and body. At the time the
applicant and Elizabeth Haysom, aged 18 and 20 respectively, were students at the University of
Virginia. They disappeared together from Virginia in October 1985, but were arrested in England in
April 1986 in connection with cheque fraud.
13. The applicant was interviewed in England between 5 and 8 June 1986 by a police investigator
from the Sheriff’s Department of Bedford County. In a sworn affidavit dated 24 July 1986 the
investigator recorded the applicant as having admitted the killings in his presence and in that of two
United Kingdom police officers. The applicant had stated that he was in love with Miss Haysom but
that her parents were opposed to the relationship. He and Miss Haysom had therefore planned to kill
them. They rented a car in Charlottesville and travelled to Washington where they set up an alibi. The
applicant then went to the parents’ house, discussed the relationship with them and, when they told
him that they would do anything to prevent it, a row developed during which he killed them with a
knife.
On 13 June 1986 a grand jury of the Circuit Court of Bedford County indicted him on charges of
murdering the Haysom parents. The charges alleged capital murder of both of them and the separate
non-capital murders of each.
14. On 11 August 1986 the Government of the United States of America requested the applicant’s
and Miss Haysom’s extradition under the terms of the Extradition Treaty of 1972 between the United
States and the United Kingdom (see paragraph 30 below). On 12 September a Magistrate at Bow
Street Magistrates’ Court was required by the Secretary of State for Home Affairs to issue a warrant
for the applicant’s arrest under the provisions of section 8 of the Extradition Act 1870 (see paragraph
32 below). The applicant was subsequently arrested on 30 December at HM Prison Chelmsford after
serving a prison sentence for cheque fraud.
15. On 29 October 1986 the British Embassy in Washington addressed a request to the United States
authorities in the following terms:
"Because the death penalty has been abolished in Great Britain, the Embassy has been instructed to
seek an assurance, in accordance with the terms of ... the Extradition Treaty, that, in the event of Mr
Soering being surrendered and being convicted of the crimes for which he has been indicted ..., the
death penalty, if imposed, will not be carried out.
Should it not be possible on constitutional grounds for the United States Government to give such an
assurance, the United Kingdom authorities ask that the United States Government undertake to
recommend to the appropriate authorities that the death penalty should not be imposed or, if imposed,
should not be executed."
16. On 30 December 1986 the applicant was interviewed in prison by a German prosecutor
(Staatsanwalt) from Bonn. In a sworn witness statement the prosecutor recorded the applicant as
having said, inter alia, that "he had never had the intention of killing Mr and Mrs Haysom and ... he
could only remember having inflicted wounds at the neck on Mr and Mrs Haysom which must have
had something to do with their dying later"; and that in the immediately preceding days "there had

36
been no talk whatsoever [between him and Elizabeth Haysom] about killing Elizabeth’s parents". The
prosecutor also referred to documents which had been put at his disposal, for example the statements
made by the applicant to the American police investigator, the autopsy reports and two psychiatric
reports on the applicant (see paragraph 21 below).
On 11 February 1987 the local court in Bonn issued a warrant for the applicant’s arrest in respect of
the alleged murders. On 11 March the Government of the Federal Republic of Germany requested his
extradition to the Federal Republic under the Extradition Treaty of 1872 between the Federal Republic
and the United Kingdom (see paragraph 31 below). The Secretary of State was then advised by the
Director of Public Prosecutions that, although the German request contained proof that German courts
had jurisdiction to try the applicant, the evidence submitted, since it consisted solely of the admissions
made by the applicant to the Bonn prosecutor in the absence of a caution, did not amount to a prima
facie case against him and that a magistrate would not be able under the Extradition Act 1870 (see
paragraph 32 below) to commit him to await extradition to Germany on the strength of admissions
obtained in such circumstances.
17. In a letter dated 20 April 1987 to the Director of the Office of International Affairs, Criminal
Division, United States Department of Justice, the Attorney for Bedford County, Virginia (Mr James
W. Updike Jr) stated that, on the assumption that the applicant could not be tried in Germany on the
basis of admissions alone, there was no means of compelling witnesses from the United States to
appear in a criminal court in Germany. On 23 April the United States, by diplomatic note, requested
the applicant’s extradition to the United States in preference to the Federal Republic of Germany.
18. On 8 May 1987 Elizabeth Haysom was surrendered for extradition to the United States. After
pleading guilty on 22 August as an accessory to the murder of her parents, she was sentenced on 6
October to 90 years’ imprisonment (45 years on each count of murder).
19. On 20 May 1987 the United Kingdom Government informed the Federal Republic of Germany
that the United States had earlier "submitted a request, supported by prima facie evidence, for the
extradition of Mr Soering". The United Kingdom Government notified the Federal Republic that they
had "concluded that, having regard to all the circumstances of the case, the court should continue to
consider in the normal way the United States request". They further indicated that they had sought an
assurance from the United States authorities on the question of the death penalty and that "in the event
that the court commits Mr Soering, his surrender to the United States authorities would be subject to
the receipt of satisfactory assurances on this matter".
20. On 1 June 1987 Mr Updike swore an affidavit in his capacity as Attorney for Bedford County, in
which he certified as follows:
"I hereby certify that should Jens Soering be convicted of the offence of capital murder as charged in
Bedford County, Virginia ... a representation will be made in the name of the United Kingdom to the
judge at the time of sentencing that it is the wish of the United Kingdom that the death penalty should
not be imposed or carried out."
This assurance was transmitted to the United Kingdom Government under cover of a diplomatic note
on 8 June. It was repeated in the same terms in a further affidavit from Mr Updike sworn on 16
February 1988 and forwarded to the United Kingdom by diplomatic note on 17 May 1988. In the same
note the Federal Government of the United States undertook to ensure that the commitment of the
appropriate authorities of the Commonwealth of Virginia to make representations on behalf of the
United Kingdom would be honoured.
During the course of the present proceedings the Virginia authorities informed the United Kingdom
Government that Mr Updike was not planning to provide any further assurances and intended to seek
the death penalty in Mr Soering’s case because the evidence, in his determination, supported such
action.

37
21. On 16 June 1987 at the Bow Street Magistrates’ Court committal proceedings took place before
the Chief Stipendiary Magistrate.
The Government of the United States adduced evidence that on the night of 30 March 1985 the
applicant killed William and Nancy Haysom at their home in Bedford County, Virginia. In particular,
evidence was given of the applicant’s own admissions as recorded in the affidavit of the Bedford
County police investigator (see paragraph 13 above).
On behalf of the applicant psychiatric evidence was adduced from a consultant forensic psychiatrist
(report dated 15 December 1986 by Dr Henrietta Bullard) that he was immature and inexperienced and
had lost his personal identity in a symbiotic relationship with his girlfriend - a powerful, persuasive
and disturbed young woman. The psychiatric report concluded:
"There existed between Miss Haysom and Soering a ‘folie à deux’, in which the most disturbed
partner was Miss Haysom. ...
At the time of the offence, it is my opinion that Jens Soering was suffering from [such] an abnormality
of mind due to inherent causes as substantially impaired his mental responsibility for his acts. The
psychiatric syndrome referred to as ‘folie à deux’ is a well-recognised state of mind where one partner
is suggestible to the extent that he or she believes in the psychotic delusions of the other. The degree
of disturbance of Miss Haysom borders on the psychotic and, over the course of many months, she
was able to persuade Soering that he might have to kill her parents for she and him to survive as a
couple. ... Miss Haysom had a stupefying and mesmeric effect on Soering which led to an abnormal
psychological state in which he became unable to think rationally or question the absurdities in Miss
Haysom’s view of her life and the influence of her parents. ...
In conclusion, it is my opinion that, at the time of the offences, Soering was suffering from an
abnormality of mind which, in this country, would constitute a defence of ‘not guilty to murder but
guilty of manslaughter’."
Dr Bullard’s conclusions were substantially the same as those contained in an earlier psychiatric report
(dated 11 December 1986 by Dr John R. Hamilton, Medical Director of Broadmoor Hospital), which
was not however put before the Magistrates’ Court.
The Chief Magistrate found that the evidence of Dr Bullard was not relevant to any issue that he had
to decide and committed the applicant to await the Secretary of State’s order for his return to the
United States.
22. On 29 June 1987 Mr Soering applied to the Divisional Court for a writ of habeas corpus in
respect of his committal and for leave to apply for judicial review. On 11 December both applications
were refused by the Divisional Court (Lord Justice Lloyd and Mr Justice Macpherson).
In support of his application for leave to apply for judicial review, Mr Soering had submitted that the
assurance received from the United States authorities was so worthless that no reasonable Secretary of
State could regard it as satisfactory under Article IV of the Extradition Treaty between the United
Kingdom and the United States (see paragraph 36 below). In his judgment Lord Justice Lloyd agreed
that "the assurance leaves something to be desired":
"Article IV of the Treaty contemplates an assurance that the death penalty will not be carried out. That
must presumably mean an assurance by or on behalf of the Executive Branch of Government, which in
this case would be the Governor of the Commonwealth of Virginia. The certificate sworn by Mr
Updike, far from being an assurance on behalf of the Executive, is nothing more than an undertaking
to make representations on behalf of the United Kingdom to the judge. I cannot believe that this is
what was intended when the Treaty was signed. But I can understand that there may well be
difficulties in obtaining more by way of assurance in view of the federal nature of the United States
Constitution."
Leave to apply for judicial review was refused because the claim was premature. Lord Justice Lloyd
stated:

38
"The Secretary of State has not yet decided whether to accept the assurance as satisfactory and he has
certainly not yet decided whether or not to issue a warrant for Soering’s surrender. Other factors may
well intervene between now and then. This court will never allow itself to be put in the position of
reviewing an administrative decision before the decision has been made."
As a supplementary reason, he added:
"Secondly, even if a decision to regard the assurance as satisfactory had already been made by the
Secretary of State, then on the evidence currently before us I am far from being persuaded that such a
decision would have been irrational in the Wednesbury sense." (As to "irrationality" in the
Wednesbury sense, see paragraph 35 below.)
23. On 30 June 1988 the House of Lords rejected the applicant’s petition for leave to appeal against
the decision of the Divisional Court.
24. On 14 July 1988 the applicant petitioned the Secretary of State, requesting him to exercise his
discretion not to make an order for the applicant’s surrender under section 11 of the Extradition Act
1870 (see paragraph 34 below).
This request was rejected, and on 3 August 1988 the Secretary of State signed a warrant ordering the
applicant’s surrender to the United States authorities. However, the applicant has not been transferred
to the United States by virtue of the interim measures indicated in the present proceedings firstly by
the European Commission and then by the European Court (see paragraphs 4 above and 77 below).
25. On 5 August 1988 the applicant was transferred to a prison hospital where he remained until early
November 1988 under the special regime applied to suicide-risk prisoners.
According to psychiatric evidence adduced on behalf of the applicant (report dated 16 March 1989 by
Dr D. Somekh), the applicant’s dread of extreme physical violence and homosexual abuse from other
inmates in death row in Virginia is in particular having a profound psychological effect on him. The
psychiatrist’s report records a mounting desperation in the applicant, together with objective fears that
he may seek to take his own life.
26. By a declaration dated 20 March 1989 submitted to this Court, the applicant stated that should the
United Kingdom Government require that he be deported to the Federal Republic of Germany he
would consent to such requirement and would present no factual or legal opposition against the
making or execution of an order to that effect.
II. RELEVANT DOMESTIC LAW AND PRACTICE IN THE UNITED KINGDOM
A. Criminal law
27. In England murder is defined as the unlawful killing of a human being with malice aforethought.
The penalty is life imprisonment. The death penalty cannot be imposed for murder (Murder (Abolition
of the Death Penalty) Act 1965, section 1). Section 2 of the Homicide Act 1957 provides that where a
person kills another, he shall not be convicted of murder if he was suffering from such abnormality of
mind (whether arising from a condition of arrested development of mind or any inherent causes or
induced by disease or injury) as substantially impaired his mental responsibility for his acts in doing
the killing. A person who but for the section would be liable to be convicted of murder shall be liable
to be convicted of manslaughter.
28. English courts do not exercise criminal jurisdiction in respect of acts of foreigners abroad except
in certain cases immaterial to the present proceedings. Consequently, neither the applicant, as a
German citizen, nor Elizabeth Haysom, a Canadian citizen, was or is amenable to criminal trial in the
United Kingdom.
B. Extradition
29. The relevant general law on extradition is contained in the Extradition Acts 1870-1935.
30. The extradition arrangements between the United Kingdom and the United States of America are
governed by the Extradition Treaty signed by the two Governments on 8 June 1972, a Supplementary
Treaty signed on 25 June 1982, and an Exchange of Notes dated 19 and 20 August 1986 amending the

39
Supplementary Treaty. These arrangements have been incorporated into the law of the United
Kingdom by Orders in Council (the United States of America (Extradition) Order 1976, S.I.
1976/2144 and the United States of America (Extradition) (Amendment) Order 1986, S.I. 1986/2020).
By virtue of Article I of the Extradition Treaty, "each Contracting Party undertakes to extradite to the
other, in the circumstances and subject to the conditions specified in this Treaty, any person found in
its territory who has been accused or convicted of any offence [specified in the Treaty and including
murder], committed within the jurisdiction of the other Party".
31. Extradition between the United Kingdom and the Federal Republic of Germany is governed by
the Treaty of 14 May 1872 between the United Kingdom and Germany for the Mutual Surrender of
Fugitive Criminals, as reapplied with amendments by an Agreement signed at Bonn on 23 February
1960 and as further amended by an Exchange of Notes dated 25 and 27 September 1978. These
agreements have been incorporated into the law of the United Kingdom by Orders in Council (the
Federal Republic of Germany (Extradition) Order 1960, S.I. 1960/1375 and the Federal Republic of
Germany (Extradition) (Amendment) Order 1978, S.I. 1978/1403).
32. After receipt of an extradition request, the Secretary of State may, by order, require a magistrate
to issue a warrant for the arrest of the fugitive criminal (Extradition Act 1870, sections 7 and 8).
Extradition proceedings in the United Kingdom consist in an extradition hearing before a magistrate.
Section 10 of the Extradition Act 1870 provides that if "such evidence is produced as (subject to the
provisions of this Act) would, according to the law of England, justify the committal for trial of the
prisoner if the crime of which he is accused had been committed in England ... the ... magistrate shall
commit him to prison but otherwise he shall order him to be discharged". A magistrate must be
satisfied that there is sufficient evidence to put the accused on trial; before committing him a prima
facie case must be made out against him. "The test is whether, if the evidence before the magistrate
stood alone at the trial, a reasonable jury properly directed could accept it and find a verdict of guilty"
(Schtraks v. Government of Israel [1964] Appeal Cases 556).
33. Section 11 of the Extradition Act 1870 provides that decisions taken in committal proceedings
may be challenged by way of application for habeas corpus. In practice, such application is made to a
Divisional Court and, with leave, to the House of Lords. Habeas corpus proceedings are primarily
concerned with checking that the magistrate had jurisdiction to hear the case; that there was evidence
before him which could justify the committal; that the offence is an extradition crime which is not of a
political character; and that there is no bar on other grounds to surrender. Section 12 of the 1870 Act
provides for the release of a prisoner, if not surrendered, at the conclusion of such proceedings or
within two months of committal unless sufficient cause is shown to the contrary.
34. Furthermore, under section 11 of the 1870 Act the Secretary of State enjoys a discretion not to
sign the surrender warrant (Atkinson v. United States [1971] Appeal Cases 197). This discretion may
override a decision of the courts that a fugitive should be surrendered, and it is open to every prisoner
who has exhausted his remedies by way of application for habeas corpus to petition the Secretary of
State for that purpose. In considering whether to order the fugitive’s surrender, the Secretary of State
is bound to take account of fresh evidence which was not before the magistrate (Schtraks v.
Government of Israel, loc. cit.).
35. In addition, it is open to the prisoner to challenge both the decision of the Secretary of State
rejecting his petition and the decision to sign the warrant in judicial review proceedings. In such
proceedings the court may review the exercise of the Secretary of State’s discretion on the basis that it
is tainted with illegality, irrationality or procedural impropriety (Council of Civil Service Unions and
Others v. Minister for the Civil Service [1984] 3 All England Law Reports 935).
Irrationality is determined on the basis of the administrative-law principles set out in Associated
Provincial Picture Houses Ltd v. Wednesbury Corporation [1948] 1 King’s Bench Reports 223 (the
so-called "Wednesbury principles" of reasonableness). The test in an extradition case would be that no

40
reasonable Secretary of State could have made an order for return in the circumstances. As the
judgment of Lord Justice Lloyd in the Divisional Court in the present case shows (see paragraph 22
above), the reliance placed by the Secretary of State on any assurance given by the requesting State
may be tested to determine whether such reliance is within the confines of "reasonableness".
According to the United Kingdom Government, on the same principle 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 which no reasonable Secretary of State could take.
In R v. Home Secretary, ex parte Bugdaycay [1987] 1 All England Law Reports 940 at 952, a House
of Lords case concerning a refusal to grant asylum, Lord Bridge, while acknowledging the limitations
of the Wednesbury principles, explained that the courts will apply them extremely strictly against the
Secretary of State in a case in which the life of the applicant is at risk:
"Within those limitations the court must, I think, be entitled to subject an administrative decision to the
most rigorous examination, to ensure that it is in no way flawed, according to the gravity of the issue
which the decision determines. The most fundamental of all human rights is the individual’s right to
life and, when an administrative decision under challenge is said to be one which may put the
applicant’s life at risk, the basis of the decision must surely call for the most anxious scrutiny."
Lord Templeman added (at page 956):
"In my opinion where the result of a flawed decision may imperil life or liberty a special responsibility
lies on the court in the examination of the decision-making process."
However, the courts will not review any decision of the Secretary of State by reason of the fact only
that he failed to consider whether or not there was a breach of the European Convention on Human
Rights (R v. Secretary of State, ex parte Kirkwood [1984] 1 Weekly Law Reports 913).
In addition, the courts have no jurisdiction to issue interim injunctions against the Crown in judicial
review proceedings (Kirkwood, ibid., and R v. Secretary of State for Transport, ex parte Factortame
Ltd and Others, The Times, 19 May 1989).
36. There is no provision in the Extradition Acts relating to the death penalty, but Article IV of the
United Kingdom-United States Treaty provides:
"If the offence for which extradition is requested is punishable by death under the relevant law of the
requesting Party, but the relevant law of the requested Party does not provide for the death penalty in a
similar case, extradition may be refused unless the requesting Party gives assurances satisfactory to the
requested Party that the death penalty will not be carried out."
37. In the case of a fugitive requested by the United States who faces a charge carrying the death
penalty, it is the Secretary of State’s practice, pursuant to Article IV of the United Kingdom-United
States Extradition Treaty, to accept an assurance from the prosecuting authorities of the relevant State
that a representation will be made to the judge at the time of sentencing that it is the wish of the United
Kingdom that the death penalty should be neither imposed no carried out. This practice has been
described by Mr David Mellor, then Minister of State at the Home Office, in the following terms:
"The written undertakings about the death penalty that the Secretary of State obtains from the Federal
authorities amount to an undertaking that the views of the United Kingdom will be represented to the
judge. At the time of sentencing he will be informed that the United Kingdom does not wish the death
penalty to be imposed or carried out. That means that the United Kingdom authorities render up a
fugitive or are prepared to send a citizen to face an American court on the clear understanding that the
death penalty will not be carried out - it has never been carried out in such cases. It would be a
fundamental blow to the extradition arrangements between our two countries if the death penalty were
carried out on an individual who had been returned under those circumstances." (Hansard, 10 March
1987, col. 955)

41
There has, however, never been a case in which the effectiveness of such an undertaking has been
tested.
38. Concurrent requests for extradition in respect of the same crime from two different States are not
a common occurrence. If both requests are received at the same time, the Secretary of State decides
which request is to be proceeded with, having regard to all the facts of the case, including the
nationality of the fugitive and the place of commission of the offence.
In this respect Article X of the Extradition Treaty between the United Kingdom and the United States
provides as follows:
"If the extradition of a person is requested concurrently by one of the Contracting Parties and by
another State or States, either for the same offence or for different offences, the requested Party shall
make its decision, in so far as its law allows, having regard to all the circumstances, including the
provisions in this regard in any Agreements in force between the requested Party and the requesting
States, the relative seriousness and place of commission of the offences, the respective dates of the
requests, the nationality of the person sought and the possibility of subsequent extradition to another
State."
III. RELEVANT DOMESTIC LAW IN THE COMMONWEALTH OF VIRGINIA
A. The law relating to murder
39. The relevant definition and classification of murder and sentencing for murder are governed by
the Code of Virginia of 1950, as amended, and the decided cases in the State and Federal courts.
40. Section 18.2-31 of the Virginia Code provides that eight types of homicide constitute capital
murder, punishable as a Class 1 felony, including "the wilful, deliberate and premeditated killing of
more than one person as a part of the same act or transaction" (sub-section (g)). The punishment for a
Class 1 felony is "death or imprisonment for life" (Virginia Code, section 18.2-10(a)). Except in the
case of murder for hire, only the "triggerman", that is the actual perpetrator of the killing, may be
charged with capital murder (Johnston v. Commonwealth, 220 Virginia Reports (Va.) 146, 255 South
Eastern Reporter, Second Series (S.E.2d) 525 (1979)).
Murder other than capital murder is classified as murder in the first degree or murder in the second
degree and is punishable by varying terms of imprisonment (Virginia Code, sections 18.2-10(b), (c)
and 18.2-32).
41. In most felony trials, including trials for capital murder, the defendant is guaranteed trial by jury.
The defendant may waive this right but does not often do so.
B. Sentencing procedure
42. The sentencing procedure in a capital murder case in Virginia is a separate proceeding from the
determination of guilt. Following a determination of guilt of capital murder, the same jury, or judge
sitting without a jury, will forthwith proceed to hear evidence regarding punishment. All relevant
evidence concerning the offence and the defendant is admissible. Evidence in mitigation is subject to
almost no limitation, while evidence of aggravation is restricted by statute (Virginia Code, section
19.2-264.4).
43. Unless the prosecution proves beyond a reasonable doubt the existence of at least one of two
statutory aggravating circumstances - future dangerousness or vileness - the sentencer may not return a
death sentence.
"Future dangerousness" exists where there is a probability that the defendant would commit "criminal
acts of violence" in the future such as would constitute a "continuing serious threat to society"
(Virginia Code, section 19.2-264.2).
"Vileness" exists when the crime was "outrageously or wantonly vile, horrible or inhuman in that it
involved torture, depravity of mind or an aggravated battery to the victim" (Virginia Code, ibid.). The
words "depravity of mind" mean "a degree of moral turpitude and psychical debasement surpassing
that inherent in the definition of ordinary legal malice and premeditation". The words "aggravated

42
battery" mean a battery which, "qualitatively and quantitatively, is more culpable than the minimum
necessary to accomplish an act of murder" (Smith v. Commonwealth, 219 Va. 455, 248 S.E.2d 135
(1978), certiorari denied, 441 United States Supreme Court Reports (U.S.) 967 (1979)). Proof of
multiple wounds sustained by the victim, particularly a neck wound, which even considered alone,
constituted an aggravated battery in the light of the savage, methodical manner in which it was
inflicted, leaving the victim to suffer an interval of agony awaiting death, has been held to satisfy the
test of "vileness" under this section (Edmonds v. Commonwealth, 229 Va. 303, 329 S.E.2d 807,
certiorari denied, 106 Supreme Court Reporter (S.Ct.) 339, 88 United States Supreme Court Reports,
Lawyers’ Edition, Second Series (L.Ed.2d) 324 (1985)).
44. The imposition of the death penalty on a young person who has reached the age of majority -
which is 18 years (Virginia Code, section 1.13.42) - is not precluded under Virginia law. Age is a fact
to be weighed by the jury (Peterson v. Commonwealth, 225 Va. 289, 302 S.E.2d 520, certiorari
denied, 464 U.S. 865, 104 S.Ct. 202, 78 L.Ed.2d 176 (1983)).
45. Facts in mitigation are specified by statute as including but not being limited to the following:
"(i) the defendant has no significant history of prior criminal activity, or (ii) the capital felony was
committed while the defendant was under the influence of extreme mental or emotional disturbance, or
(iii) the victim was a participant in the defendant’s conduct or consented to the act, or (iv) at the time
of the commission of the capital felony, the capacity of the defendant to appreciate the criminality of
his conduct or to conform his conduct to the requirements of law was significantly impaired, or (v) the
age of the defendant at the time of the commission of the capital offence" (Virginia Code, section
19.2-264.4B).
46. In a case of trial by jury, the jury in a capital murder case has the duty to consider all evidence
relevant to sentencing, both favourable and unfavourable, before fixing punishment. In particular, a
jury may sentence a defendant to death only after having considered the evidence in mitigation of the
offence (Watkins v. Commonwealth, 229 Va. 469, 331 S.E.2d 422 (1985), certiorari denied, 475 U.S.
1099, 106 S.Ct. 1503, 89 L.Ed.2d 903 (1986)). Furthermore, unless the jury is unanimous the sentence
cannot be death but must be life imprisonment (Virginia Code, section 19.2-264.4). Even if one or
more of the statutory aggravating circumstances are shown, the sentencer still remains at liberty to fix
a life sentence instead of death in the light of the mitigating circumstances and even for no reason
other than mercy (Smith v. Commonwealth, loc. cit.).
47. Following a sentence of death, the trial judge must order the preparation of an investigative report
detailing the defendant’s history and "any and all other relevant facts, to the end that the court may be
fully advised as to whether the penalty of death is appropriate and just"; after consideration of the
report, and upon good cause shown, the judge may set aside the sentence of death and impose a life
sentence (Virginia Code, section 19.2-264.5).
48. Following a moratorium consequent upon a decision of the United States Supreme Court
(Furman v. Georgia, 92 S.Ct. 2726 (1972)), imposition of the death penalty was resumed in Virginia in
1977, since which date seven persons have been executed. The means of execution used is
electrocution.
The Virginia death penalty statutory scheme, including the provision on mandatory review of sentence
(see paragraph 52 below), has been judicially determined to be constitutional. It was considered to
prevent the arbitrary or capricious imposition of the death penalty and narrowly to channel the
sentencer’s discretion (Smith v. Commonwealth, loc. cit.; Turnver v. Bass, 753 Federal Reporter,
Second Series (F.2d) 342 (4th Circuit, 1985); Briley v. Bass, 750 F.2d 1238 (4th Circuit, 1984)). The
death penalty under the Virginia capital murder statute has also been held not to constitute cruel and
unusual punishment or to deny a defendant due process or equal protection (Stamper v.
Commonwealth, 220 Va. 260, 257 S.E.2d 808 (1979), certiorari denied, 445 U.S. 972, 100 S.Ct. 1666,
64 L.Ed.2d 249 (1980)). The Supreme Court of Virginia rejected the submission that death by

43
electrocution would cause "the needless imposition of pain before death and emotional suffering while
awaiting execution of sentence" (ibid.).
C. Insanity, mental disorders and diminished responsibility
49. The law of Virginia generally does not recognise a defence of diminished capacity (Stamper v.
Commonwealth, 228 Va. 707, 324 S.E.2d 682 (1985)).
50. A plea of insanity at the time of the offence is recognised as a defence in Virginia and, if
successful, is a bar to conviction. Such a plea will apply where the defendant knows that the act is
wrong but is driven by an irresistible impulse, induced by some mental disease affecting the volitive
powers, to commit it (Thompson v. Commonwealth, 193 Va. 704, 70 S.E.2d 284 (1952) and Godley v.
Commonwealth, 2 Virginia Court of Appeals Reports (Va. App.) 249 (1986)) or where he does not
understand the nature, character and consequences of his act or is unable to distinguish right from
wrong (Price v. Commonwealth, 228 Va. 452, 323 S.E.2d 106 (1984)). Where no insanity defence is
interposed, the defendant’s mental condition is only relevant at the guilt stage in so far as it might be
probative of a fact in issue, for example premeditation at the time of the killing (Le Vasseur v.
Commonwealth, 225 Va. 564, 304 S.E.2d 644 (1983), certiorari denied, 464 U.S. 1063, 104 S.Ct 744,
79 L.Ed.2d 202 (1984)).
51. In a capital murder trial, the defendant’s mental condition at the time of the offence, including
any level of mental illness, may be pleaded as a mitigating factor at the sentencing stage. Evidence on
this may include, but is not limited to, showing that the defendant was under the influence of extreme
mental or emotional disturbance or that at the time of the offence his capacity to appreciate the
criminality of his conduct was significantly impaired (Virginia Code, section 19.2-264.4B - see
paragraph 45 above).
Additionally, indigent capital murder defendants are entitled by statute to the appointment of a
qualified mental health expert to assist in the preparation and presentation of information concerning
their history, character and mental condition with a view to establishing factors in mitigation (Virginia
Code, section 19.2-264.3:1).
Upon presentation of evidence of the defendant’s mental state, the sentencer may elect to impose life
imprisonment rather than the death penalty.
D. Appeals in capital cases
52. The Supreme Court of Virginia reviews automatically every case in which a capital sentence has
been passed, regardless of the plea entered by the defendant at his trial. In addition to consideration of
"any errors in the trial" alleged by the defendant on appeal, the Supreme Court reviews the death
sentence to determine whether it was imposed "under the influence of passion, prejudice or any other
arbitrary factor" and whether it is excessive or disproportionate "to the penalty imposed in similar
cases" (Virginia Code, section 17-110.1).
This automatic direct appeal is governed by the Rules of the Supreme Court of Virginia and
encompasses various time-limits for the filing of briefs. In addition, precedence is given to the review
of sentences of death before any other case (Rule 5.23; see also Virginia Code, section 17-110.2).
Normally the time taken by this appeal does not exceed six months.
After this appeal process is completed, the sentence of death will be executed unless a stay of
execution is entered. As a practical matter, a stay will be entered when the prisoner initiates further
proceedings.
There has apparently been only one case since 1977 where the Virginia Supreme Court has itself
reduced a death sentence to life imprisonment.
53. The prisoner may apply to the United States Supreme Court for certiorari review of the decision
of the Supreme Court of Virginia. If unsuccessful, he may begin collateral attacks upon the conviction
and sentence in habeas corpus proceedings in both State and Federal courts.

44
The prisoner may file a habeas corpus petition either in the Supreme Court of Virginia or in the trial
court, with appeal to the Supreme Court of Virginia. Thereafter he may once more apply to the United
States Supreme Court for certiorari review of the State’s habeas corpus decision.
He may then file a petition for a writ of habeas corpus in the Federal District Court. The decision of
the District Court may be appealed to the Federal Circuit Court of Appeals, followed, if no relief is
obtained, by a petition for certiorari review in the United States Supreme Court.
At each stage of his collateral attacks, the prisoner may seek a stay of execution pending final
determination of his applications.
54. The Virginia and Federal statutes and rules of court set time-limits for the presentation of appeals
following conviction or appeals against the decisions in habeas corpus proceedings. There are,
however, no time-limits for filing the initial State and Federal habeas corpus petitions.
55. The grounds which may be presented and argued on appeal and in habeas corpus proceedings are
restricted by the "contemporaneous objections rule" to those which have been raised in the course of
the trial (see Rule 5.25 of the Rules of the Supreme Court of Virginia). The rule is based on the
principle that the trial itself is the "main event", so that the real issues between the parties should be
canvassed and determined at the trial and not on appeal or in any subsequent review proceedings. It
was adopted to prevent the setting of traps for trial courts (Keeney v. Commonwealth, 147 Va. 678,
137 South Eastern Reporter (S.E.) 478 (1927)), and so that the trial judge will be given the opportunity
to rule upon the issues intelligently and unnecessary appeals, reversals and mistrials will be avoided
(Woodson v. Commonwealth, 211 Va. 285, 176 S.E.2d 818 (1970), certiorari denied, 401 U.S. 959
(1971)). The rule applies equally in capital cases and is recognised by the Federal courts (see Briley v.
Bass, 584 Federal Supplement (F. Supp.) 807 (Eastern District Virginia), aff’d, 742 F.2d 155 (4th
Circuit 1984)).
By way of exception to the rule, errors to which no objections were made at the trial may be objected
to on appeal where this is necessary to attain the ends of justice or where good cause is shown. This
exception has been applied by the Supreme Court of Virginia to overturn a capital murder conviction
(Ball v. Commonwealth, 221 Va. 754, 273 S.E.2d 790 (1981)). In death penalty cases, the
proportionality of the sentence and the issue of whether the sentence was imposed under the influence
of passion, prejudice or other arbitrary factor (see paragraph 52 above) is reviewed without regard to
whether objection was made at trial (see Briley v. Bass, loc. cit.).
56. The average time between trial and execution in Virginia, calculated on the basis of the seven
executions which have taken place since 1977, is six to eight years. The delays are primarily due to a
strategy by convicted prisoners to prolong the appeal proceedings as much as possible. The United
States Supreme Court has not as yet considered or ruled on the "death row phenomenon" and in
particular whether it falls foul of the prohibition of "cruel and unusual punishment" under the Eighth
Amendment to the Constitution of the United States.
E. Legal assistance for appeals
57. All prisoners who have been sentenced to death have individual lawyers to represent them,
whether privately recruited or court-appointed. On the other hand, there is no statutory provision
expressly mandating legal assistance to be made available to the indigent prisoner to file habeas
corpus petitions. However, it has recently been affirmed by a United States Court of Appeal that the
Commonwealth of Virginia is required to provide indigent prisoners who have been sentenced to death
with the assistance of lawyers to pursue challenges to their death sentences in State habeas corpus
actions (Giarratano v. Murray, 847 F.2d 1118 (4th Circuit 1988) (en banc) - case currently pending
before the United States Supreme Court). In Federal habeas corpus and certiorari proceedings case-law
does not impose the same obligation (ibid., p. 1122, column 1), for the reason that the Federal courts
would have available the appellate briefs, a transcript and State court opinion (in certiorari
proceedings) and the briefs of counsel, a transcript and opinion (in habeas corpus proceedings).

45
Virginia inmates also have access to legal information and assistance in the form of law libraries and
institutional attorneys. The institutional attorneys are available to assist inmates in "any legal matter
relating to their incarceration" (Virginia Code, section 53.1-40), including the drafting of habeas
corpus petitions and motions for appointment of counsel for the inmates to file.
A prisoner is not obliged to proceed with counsel, and he may litigate in both State and Federal courts
pro se. However, no Virginia prisoner under sentence of death in contemporary times has ever been
unrepresented during his trial, appeal or habeas corpus proceedings. Nor has any such prisoner faced
execution without counsel.
F. Authorities involved in the death penalty procedure
58. A Commonwealth’s Attorney for each county in Virginia is elected every four years (Article
VII(4) of the Constitution of Virginia). His primary duty is the prosecution of all criminal cases within
his locality (see Virginia Code, section 15.1-18.1). He has discretion as to what degree of murder to
present for indictment, but that discretion is limited by considerations of prosecutorial ethics and his
legal duty under the general law and to the public to present the indictment for the crime which is best
supported by the evidence. He is independent in the discharge of his duty, not being subject to
direction in any relevant way, whether as to charging offences, seeking sentences or giving related
assurances, by the Attorney General of Virginia (see Virginia Code, section 2.1-124), the Governor of
Virginia or anyone else. It is open to the Commonwealth’s Attorney to engage in plea negotiations, but
the court is not bound to accept any resultant agreement (Rule 3A.8 of the Rules of the Supreme Court
of Virginia).
59. Judges of the district and higher courts of the State of Virginia are not elected but are appointed
to the bench. Their conduct is governed by published Canons of Judicial Conduct, which have been
adopted by the Supreme Court of Virginia as Rules of the Supreme Court. Observance of high
standards of conduct so as to preserve the integrity and independence of the judiciary is included as
part of the first Canon.
60. The Governor of the Commonwealth of Virginia has an unrestricted power "to commute capital
punishment" (Article V, section 12, of the Constitution of Virginia). As a matter of policy, the
Governor does not promise, before a conviction and sentence, that he will later exercise his
commutation power. Since 1977 there has been no case in which the Governor has commuted a death
sentence.
G. Prison conditions in Mecklenburg Correctional Center
61. There are currently 40 people under sentence of death in Virginia. The majority are detained in
Mecklenburg Correctional Center, which is a modern maximum-security institution with a total
capacity of 335 inmates. Institutional Operating Procedures (IOP 821.1) establish uniform operating
procedures for the administration, security, control and delivery of necessary services to death row
inmates in Mecklenburg. In addition conditions of confinement are governed by a comprehensive
consent decree handed down by the United States District Court in Richmond in the case of Alan
Brown et al. v. Allyn R. Sielaff et al. (5 April 1985). Both the Virginia Department of Corrections and
the American Civil Liberties Union monitor compliance with the terms of the consent decree. The
United States District Court also retains jurisdiction to enforce compliance with the decree.
62. The channels by which grievances may be ventilated and, if well-founded, remedied include (1)
the use of a Federal Court approved Inmate Grievance Procedure of the Virginia Department of
Corrections, involving the Warden, the Regional Administrator and the Director of Prisons, and the
Regional Ombudsman, (2) formal or informal contact between inmates’ counsel and the prison staff,
(3) complaint to the courts for breach of the consent decree, and (4) the institution of legal proceedings
under Federal or State tort laws.
63. The size of a death row inmate’s cell is 3m by 2.2m. Prisoners have an opportunity for
approximately 7½ hours’ recreation per week in summer and approximately 6 hours’ per week,

46
weather permitting, in winter. The death row area has two recreation yards, both of which are
equipped with basketball courts and one of which is equipped with weights and weight benches.
Inmates are also permitted to leave their cells on other occasions, such as to receive visits, to visit the
law library or to attend the prison infirmary. In addition, death row inmates are given one hour out-of-
cell time in the morning in a common area. Each death row inmate is eligible for work assignments,
such as cleaning duties. When prisoners move around the prison they are handcuffed, with special
shackles around the waist.
When not in their cells, death row inmates are housed in a common area called "the pod". The guards
are not within this area and remain in a box outside. In the event of disturbance or inter-inmate assault,
the guards are not allowed to intervene until instructed to do so by the ranking officer present.
64. The applicant adduced much evidence of extreme stress, psychological deterioration and risk of
homosexual abuse and physical attack undergone by prisoners on death row, including Mecklenburg
Correctional Center. This evidence was strongly contested by the United Kingdom Government on the
basis of affidavits sworn by administrators from the Virginia Department of Corrections.
65. Death row inmates receive the same medical service as inmates in the general population. An
infirmary equipped with adequate supplies, equipment and staff provides for 24-hour in-patient care,
and emergency facilities are provided in each building. Mecklenburg also provides psychological and
psychiatric services to death row inmates. The United States District Court (Eastern District of
Virginia) has recently upheld the adequacy of mental health treatment available to death row inmates
in Mecklenburg (Stamper et al. v. Blair et al., decision of 14 July 1988).
66. Inmates are allowed non-contact visits in a visiting room on Saturdays, Sundays and holidays
between 8.30am and 3.30pm. Attorneys have access to their clients during normal working hours on
request as well as during the scheduled visiting hours. Death row inmates who have a record of good
behaviour are eligible for contact visits with members of their immediate family two days per week.
Outgoing correspondence from inmates is picked up daily and all incoming correspondence is
delivered each evening.
67. As a security precaution, pursuant to rules applicable to all institutions in Virginia, routine
searches are conducted of the entire institution on a quarterly basis. These searches may last for
approximately a week. During such times, called lockdowns, inmates are confined to their cells; they
are showered, receive medical, dental and psychological services outside their cells as deemed
necessary by medical staff, and upon request may visit the law library, and are allowed legal visits and
legal telephone calls. Other services such as meals are provided to the inmates in their cells. During
the lockdown, privileges and out-of-cell time are gradually increased to return to normal operations.
Lockdowns may also be ordered from time to time in relation to death row if information is received
indicating that certain of its inmates may be planning a disturbance, hostage situation or escape.
68. A death row prisoner is moved to the death house 15 days before he is due to be executed. The
death house is next to the death chamber where the electric chair is situated. Whilst a prisoner is in the
death house he is watched 24 hours a day. He is isolated and has no light in his cell. The lights outside
are permanently lit. A prisoner who utilises the appeals process can be placed in the death house
several times.
H. The giving and effect of assurances in relation to the death penalty
69. Relations between the United Kingdom and the United States of America on matters concerning
extradition are conducted by and with the Federal and not the State authorities. However, in respect of
offences against State laws the Federal authorities have no legally binding power to provide, in an
appropriate extradition case, an assurance that the death penalty will not be imposed or carried out. In
such cases the power rests with the State. If a State does decide to give a promise in relation to the
death penalty, the United States Government has the power to give an assurance to the extraditing
Government that the State’s promise will be honoured.

47
According to evidence from the Virginia authorities, Virginia’s capital sentencing procedure and
notably the provision on post-sentencing reports (see paragraph 47 above) would allow the sentencing
judge to consider the representation to be made on behalf of the United Kingdom Government
pursuant to the assurance given by the Attorney for Bedford County (see paragraph 20 above). In
addition, it would be open to the Governor to take into account the wishes of the United Kingdom
Government in any application for clemency (see paragraph 60 above).
I. Mutual assistance in criminal matters
70. There is no way of compelling American witnesses to give evidence at a trial in the Federal
Republic of Germany. However, such witnesses would normally, unless imprisoned, be free to appear
voluntarily before a German court and the German authorities would pay their expenses. Furthermore,
a United States Federal court may, pursuant to a letter rogatory or a request from a foreign tribunal,
order a person to give testimony or a statement or to produce a document or other thing for use in a
proceeding in a foreign tribunal (28 United States Code, section 1782). In addition, public documents,
for example the transcript of a criminal trial, are available to foreign prosecuting authorities.

[...]

AS TO THE LAW
I. ALLEGED BREACH OF ARTICLE 3 (art. 3)
80. The applicant alleged that the decision by the Secretary of State for the Home Department to
surrender him to the authorities of the United States of America would, if implemented, give rise to a
breach by the United Kingdom of Article 3 (art. 3) of the Convention, which provides:
"No one shall be subjected to torture or to inhuman or degrading treatment or punishment."
A. Applicability of Article 3 (art. 3) in cases of extradition
81. The alleged breach derives from the applicant’s exposure to the so-called "death row
phenomenon". This phenomenon may be described as consisting in a combination of circumstances to
which the applicant would be exposed if, after having been extradited to Virginia to face a capital
murder charge, he were sentenced to death.
82. In its report (at paragraph 94) the Commission reaffirmed "its case-law that a person’s
deportation or extradition may give rise to an issue under Article 3 (art. 3) of the Convention where
there are serious reasons to believe that the individual will be subjected, in the receiving State, to
treatment contrary to that Article (art. 3)".
The Government of the Federal Republic of Germany supported the approach of the Commission,
pointing to a similar approach in the case-law of the German courts.
The applicant likewise submitted that Article 3 (art. 3) not only prohibits the Contracting States from
causing inhuman or degrading treatment or punishment to occur within their jurisdiction but also
embodies an associated obligation not to put a person in a position where he will or may suffer such
treatment or punishment at the hands of other States. For the applicant, at least as far as Article 3 (art.
3) is concerned, an individual may not be surrendered out of the protective zone of the Convention
without the certainty that the safeguards which he would enjoy are as effective as the Convention
standard.
83. The United Kingdom Government, on the other hand, contended that Article 3 (art. 3) should not
be interpreted so as to impose responsibility on a Contracting State for acts which occur outside its
jurisdiction. In particular, in their submission, extradition does not involve the responsibility of the
extraditing State for inhuman or degrading treatment or punishment which the extradited person may
suffer outside the State’s jurisdiction. To begin with, they maintained, it would be straining the
language of Article 3 (art. 3) intolerably to hold that by surrendering a fugitive criminal the extraditing
State has "subjected" him to any treatment or punishment that he will receive following conviction and

48
sentence in the receiving State. Further arguments advanced against the approach of the Commission
were that it interferes with international treaty rights; it leads to a conflict with the norms of
international judicial process, in that it in effect involves adjudication on the internal affairs of foreign
States not Parties to the Convention or to the proceedings before the Convention institutions; it entails
grave difficulties of evaluation and proof in requiring the examination of alien systems of law and of
conditions in foreign States; the practice of national courts and the international community cannot
reasonably be invoked to support it; it causes a serious risk of harm in the Contracting State which is
obliged to harbour the protected person, and leaves criminals untried, at large and unpunished.
In the alternative, the United Kingdom Government submitted that the application of Article 3 (art. 3)
in extradition cases should be limited to those occasions in which the treatment or punishment abroad
is certain, imminent and serious. In their 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.
84. The Court will approach the matter on the basis of the following considerations.
85. As results from Article 5 § 1 (f) (art. 5-1-f), which permits "the lawful ... detention of a person
against whom action is being taken with a view to ... extradition", no right not to be extradited is as
such protected by the Convention. Nevertheless, in so far as a measure of extradition has
consequences adversely affecting the enjoyment of a Convention right, it may, assuming that the
consequences are not too remote, attract the obligations of a Contracting State under the relevant
Convention guarantee (see, mutatis mutandis, the Abdulaziz, Cabales and Balkandali judgment of 25
May 1985, Series A no. 94, pp. 31-32, §§ 59-60 - in relation to rights in the field of immigration).
What is at issue in the present case is whether Article 3 (art. 3) can be applicable when the adverse
consequences of extradition are, or may be, suffered outside the jurisdiction of the extraditing State as
a result of treatment or punishment administered in the receiving State.
86. Article 1 (art. 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 I", 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 (art. 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 (art. 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 (Article 33), the 1957 European
Convention on Extradition (Article 11) and the 1984 United Nations Convention against Torture and
Other Cruel, Inhuman and Degrading Treatment or Punishment (Article 3) - the problems of removing
a person to another jurisdiction where unwanted consequences may follow are addressed expressly and
specifically.

49
These considerations cannot, however, absolve the Contracting Parties from responsibility under
Article 3 (art. 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 (see the Ireland v. the United
Kingdom judgment of 18 January 1978, Series A no. 25, p. 90, § 239). 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 (see, inter
alia, the Artico judgment of 13 May 1980, Series A no. 37, p. 16, § 33). 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" (see the
Kjeldsen, Busk Madsen and Pedersen judgment of 7 December 1976, Series A no. 23, p. 27, § 53).
88. Article 3 (art. 3) makes no provision for exceptions and no derogation from it is permissible
under Article 15 (art. 15) in time of war or other national emergency. This absolute prohibition of
torture and of inhuman or degrading treatment or punishment under the terms of the Convention
shows that Article 3 (art. 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 (art. 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 (art. 3) of the
European Convention. It would hardly be compatible with the underlying values of the Convention,
that "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 (art. 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 (art. 3).
89. What amounts to "inhuman or degrading treatment or punishment" depends on all the
circumstances of the case (see paragraph 100 below). 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 undermine the foundations of
extradition. These considerations must also be included among the factors to be taken into account in

50
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 (art. 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 (art. 3) (see paragraph 87 above).
91. In sum, the decision by a Contracting State to extradite a fugitive 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, 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 (art. 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 has as a direct consequence the exposure of an individual to
proscribed ill-treatment.
B. Application of Article 3 (art. 3) in the particular circumstances of the present case
92. The extradition procedure against the applicant in the United Kingdom has been completed, the
Secretary of State having signed a warrant ordering his surrender to the United States authorities (see
paragraph 24 above); this decision, albeit as yet not implemented, directly affects him. It therefore has
to be determined on the above principles whether the foreseeable consequences of Mr Soering’s return
to the United States are such as to attract the application of Article 3 (art. 3). This inquiry must
concentrate firstly on whether Mr Soering runs a real risk of being sentenced to death in Virginia,
since the source of the alleged inhuman and degrading treatment or punishment, namely the "death
row phenomenon", lies in the imposition of the death penalty. Only in the event of an affirmative
answer to this question need the Court examine whether exposure to the "death row phenomenon" in
the circumstances of the applicant’s case would involve treatment or punishment incompatible with
Article 3 (art. 3).
1. Whether the applicant runs a real risk of a death sentence and hence of exposure to the "death row
phenomenon"
93. The United Kingdom Government, contrary to the Government of the Federal Republic of
Germany, the Commission and the applicant, did not accept that the risk of a death sentence attains a
sufficient level of likelihood to bring Article 3 (art. 3) into play. Their reasons were fourfold.
Firstly, as illustrated by his interview with the German prosecutor where he appeared to deny any
intention to kill (see paragraph 16 above), the applicant has not acknowledged his guilt of capital
murder as such.
Secondly, only a prima facie case has so far been made out against him. In particular, in the United
Kingdom Government’s view the psychiatric evidence (see paragraph 21 above) is equivocal as to
whether Mr Soering was suffering from a disease of the mind sufficient to amount to a defence of
insanity under Virginia law (as to which, see paragraph 50 above).
Thirdly, even if Mr Soering is convicted of capital murder, it cannot be assumed that in the general
exercise of their discretion the jury will recommend, the judge will confirm and the Supreme Court of
Virginia will uphold the imposition of the death penalty (see paragraphs 42-47 and 52 above). The
United Kingdom Government referred to the presence of important mitigating factors, such as the
applicant’s age and mental condition at the time of commission of the offence and his lack of previous

51
criminal activity, which would have to be taken into account by the jury and then by the judge in the
separate sentencing proceedings (see paragraphs 44-47 and 51 above).
Fourthly, the assurance received from the United States must at the very least significantly reduce the
risk of a capital sentence either being imposed or carried out (see paragraphs 20, 37 and 69 above).
At the public hearing the Attorney General nevertheless made clear his Government’s understanding
that if Mr Soering were extradited to the United States there was "some risk", which was "more than
merely negligible", that the death penalty would be imposed.
94. As the applicant himself pointed out, he has made to American and British police officers and to
two psychiatrists admissions of his participation in the killings of the Haysom parents, although he
appeared to retract those admissions somewhat when questioned by the German prosecutor (see
paragraphs 13, 16 and 21 above). It is not for the European Court to usurp the function of the Virginia
courts by ruling that a defence of insanity would or would not be available on the psychiatric evidence
as it stands. The United Kingdom Government are justified in their assertion that no assumption can
be made that Mr Soering would certainly or even probably be convicted of capital murder as charged
(see paragraphs 13 in fine and 40 above). Nevertheless, as the Attorney General conceded on their
behalf at the public hearing, there is "a significant risk" that the applicant would be so convicted.
95. Under Virginia law, before a death sentence can be returned the prosecution must prove beyond
reasonable doubt the existence of at least one of the two statutory aggravating circumstances, namely
future dangerousness or vileness (see paragraph 43 above). In this connection, the horrible and brutal
circumstances of the killings (see paragraph 12 above) would presumably tell against the applicant,
regard being had to the case-law on the grounds for establishing the "vileness" of the crime (see
paragraph 43 above).
Admittedly, taken on their own the mitigating factors do reduce the likelihood of the death sentence
being imposed. No less than four of the five facts in mitigation expressly mentioned in the Code of
Virginia could arguably apply to Mr Soering’s case. These are a defendant’s lack of any previous
criminal history, the fact that the offence was committed while a defendant was under extreme mental
or emotional disturbance, the fact that at the time of commission of the offence the capacity of a
defendant to appreciate the criminality of his conduct or to conform his conduct to the requirements of
the law was significantly diminished, and a defendant’s age (see paragraph 45 above).
96. These various elements arguing for or against the imposition of a death sentence have to be
viewed in the light of the attitude of the prosecuting authorities.
97. The Commonwealth’s Attorney for Bedford County, Mr Updike, who is responsible for
conducting the prosecution against the applicant, has certified that "should Jens Soering be convicted
of the offence of capital murder as charged ... a representation will be made in the name of the United
Kingdom to the judge at the time of sentencing that it is the wish of the United Kingdom that the death
penalty should not be imposed or carried out" (see paragraph 20 above). The Court notes, like Lord
Justice Lloyd in the Divisional Court (see paragraph 22 above), that this undertaking is far from
reflecting the wording of Article IV of the 1972 Extradition Treaty between the United Kingdom and
the United States, which speaks of "assurances satisfactory to the requested Party that the death
penalty will not be carried out" (see paragraph 36 above). However, the offence charged, being a State
and not a Federal offence, comes within the jurisdiction of the Commonwealth of Virginia; it appears
as a consequence that no direction could or can be given to the Commonwealth’s Attorney by any
State or Federal authority to promise more; the Virginia courts as judicial bodies cannot bind
themselves in advance as to what decisions they may arrive at on the evidence; and the Governor of
Virginia does not, as a matter of policy, promise that he will later exercise his executive power to
commute a death penalty (see paragraphs 58-60 above).
This being so, Mr Updike’s undertaking may well have been the best "assurance" that the United
Kingdom could have obtained from the United States Federal Government in the particular

52
circumstances. According to the statement made to Parliament in 1987 by a Home Office Minister,
acceptance of undertakings in such terms "means that the United Kingdom authorities render up a
fugitive or are prepared to send a citizen to face an American court on the clear understanding that the
death penalty will not be carried out ... It would be a fundamental blow to the extradition arrangements
between our two countries if the death penalty were carried out on an individual who had been
returned under those circumstances" (see paragraph 37 above). Nonetheless, the effectiveness of such
an undertaking has not yet been put to the test.
98. The applicant contended that representations concerning the wishes of a foreign government
would not be admissible as a matter of law under the Virginia Code or, if admissible, of any influence
on the sentencing judge.
Whatever the position under Virginia law and practice (as to which, see paragraphs 42, 46, 47 and 69
above), and notwithstanding the diplomatic context of the extradition relations between the United
Kingdom and the United States, objectively it cannot be said that the undertaking to inform the judge
at the sentencing stage of the wishes of the United Kingdom eliminates the risk of the death penalty
being imposed. In the independent exercise of his discretion the Commonwealth’s Attorney has
himself decided to seek and to persist in seeking the death penalty because the evidence, in his
determination, supports such action (see paragraph 20 in fine above). If the national authority with
responsibility for prosecuting the offence takes such a firm stance, it is hardly open to the Court to
hold that there are no substantial grounds for believing that the applicant faces a real risk of being
sentenced to death and hence experiencing the "death row phenomenon".
99. The Court’s conclusion is therefore that the likelihood of the feared exposure of the applicant to
the "death row phenomenon" has been shown to be such as to bring Article 3 (art. 3) into play.
2. Whether in the circumstances the risk of exposure to the "death row phenomenon" would make
extradition a breach of Article 3 (art. 3)
(a) General considerations
100. As is established in the Court’s case-law, ill-treatment, including punishment, 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, such as
the nature and context of the treatment or punishment, the manner and method of its execution, its
duration, its physical or mental effects and, in some instances, the sex, age and state of health of the
victim (see the above-mentioned Ireland v. the United Kingdom judgment, Series A no. 25, p. 65, §
162; and the Tyrer judgment of 25 April 1978, Series A no. 26, pp. 14-15, §§ 29 and 30).
Treatment has been held by the Court to be both "inhuman" because it was premeditated, was applied
for hours at a stretch and "caused, if not actual bodily injury, at least intense physical and mental
suffering", and also "degrading" because it was "such as to arouse in [its] victims feelings of fear,
anguish and inferiority capable of humiliating and debasing them and possibly breaking their physical
or moral resistance" (see the above-mentioned Ireland v. the United Kingdom judgment, p. 66, § 167).
In order for a punishment or treatment associated with it to be "inhuman" or "degrading", the suffering
or humiliation involved must in any event go beyond that inevitable element of suffering or
humiliation connected with a given form of legitimate punishment (see the Tyrer judgment, loc. cit.).
In this connection, account is to be taken not only of the physical pain experienced but also, where
there is a considerable delay before execution of the punishment, of the sentenced person’s mental
anguish of anticipating the violence he is to have inflicted on him.
101. Capital punishment is permitted under certain conditions by Article 2 § 1 (art. 2-1) of the
Convention, which reads:
"Everyone’s right to life shall be protected by law. No one shall be deprived of his life intentionally
save in the execution of a sentence of a court following his conviction of a crime for which this
penalty is provided by law."

53
In view of this wording, the applicant did not suggest that the death penalty per se violated Article 3
(art. 3). He, like the two Government Parties, agreed with the Commission that the extradition of a
person to a country where he risks the death penalty does not in itself raise an issue under either
Article 2 (art. 2) or Article 3 (art. 3). On the other hand, Amnesty International in their written
comments (see paragraph 8 above) argued that the evolving standards in Western Europe regarding the
existence and use of the death penalty required that the death penalty should now be considered as an
inhuman and degrading punishment within the meaning of Article 3 (art. 3).
102. Certainly, "the Convention is a living instrument which ... must be interpreted in the light of
present-day conditions"; and, in assessing whether a given treatment or punishment is to be regarded
as inhuman or degrading for the purposes of Article 3 (art. 3), "the Court cannot but be influenced by
the developments and commonly accepted standards in the penal policy of the member States of the
Council of Europe in this field" (see the above-mentioned Tyrer judgment, Series A no. 26, pp. 15-16,
§ 31). De facto the death penalty no longer exists in time of peace in the Contracting States to the
Convention. In the few Contracting States which retain the death penalty in law for some peacetime
offences, death sentences, if ever imposed, are nowadays not carried out. This "virtual consensus in
Western European legal systems that the death penalty is, under current circumstances, no longer
consistent with regional standards of justice", to use the words of Amnesty International, is reflected in
Protocol No. 6 (P6) to the Convention, which provides for the abolition of the death penalty in time of
peace. Protocol No. 6 (P6) was opened for signature in April 1983, which in the practice of the
Council of Europe indicates the absence of objection on the part of any of the Member States of the
Organisation; it came into force in March 1985 and to date has been ratified by thirteen Contracting
States to the Convention, not however including the United Kingdom.
Whether these marked changes have the effect of bringing the death penalty per se within the
prohibition of ill-treatment under Article 3 (art. 3) must be determined on the principles governing the
interpretation of the Convention.
103. The Convention is to be read as a whole and Article 3 (art. 3) should therefore be construed in
harmony with the provisions of Article 2 (art. 2) (see, mutatis mutandis, the Klass and Others
judgment of 6 September 1978, Series A no. 28, p. 31, § 68). On this basis Article 3 (art. 3) evidently
cannot have been intended by the drafters of the Convention to include a general prohibition of the
death penalty since that would nullify the clear wording of Article 2 § 1 (art. 2-1).
Subsequent practice in national penal policy, in the form of a generalised abolition of capital
punishment, could be taken as establishing the agreement of the Contracting States to abrogate the
exception provided for under Article 2 § 1 (art. 2-1) and hence to remove a textual limit on the scope
for evolutive interpretation of Article 3 (art. 3). However, Protocol No. 6 (P6), as a subsequent written
agreement, shows that the intention of the Contracting Parties as recently as 1983 was to adopt the
normal method of amendment of the text in order to introduce a new obligation to abolish capital
punishment in time of peace and, what is more, to do so by an optional instrument allowing each State
to choose the moment when to undertake such an engagement. In these conditions, notwithstanding
the special character of the Convention (see paragraph 87 above), Article 3 (art. 3) cannot be
interpreted as generally prohibiting the death penalty.
104. That does not mean however that circumstances relating to a death sentence can never give rise
to an issue under Article 3 (art. 3). The manner in which it is imposed or executed, the personal
circumstances of the condemned person and a disproportionality to the gravity of the crime
committed, as well as the conditions of detention awaiting execution, are examples of factors capable
of bringing the treatment or punishment received by the condemned person within the proscription
under Article 3 (art. 3). Present-day attitudes in the Contracting States to capital punishment are
relevant for the assessment whether the acceptable threshold of suffering or degradation has been
exceeded.

54
(b) The particular circumstances
105. The applicant submitted that the circumstances to which he would be exposed as a consequence
of the implementation of the Secretary of State’s decision to return him to the United States, namely
the "death row phenomenon", cumulatively constituted such serious treatment that his extradition
would be contrary to Article 3 (art. 3). He cited in particular the delays in the appeal and review
procedures following a death sentence, during which time he would be subject to increasing tension
and psychological trauma; the fact, so he said, that the judge or jury in determining sentence is not
obliged to take into account the defendant’s age and mental state at the time of the offence; the
extreme conditions of his future detention on "death row" in Mecklenburg Correctional Center, where
he expects to be the victim of violence and sexual abuse because of his age, colour and nationality; and
the constant spectre of the execution itself, including the ritual of execution. He also relied on the
possibility of extradition or deportation, which he would not oppose, to the Federal Republic of
Germany as accentuating the disproportionality of the Secretary of State’s decision.
The Government of the Federal Republic of Germany took the view that, taking all the circumstances
together, the treatment awaiting the applicant in Virginia would go so far beyond treatment inevitably
connected with the imposition and execution of a death penalty as to be "inhuman" within the meaning
of Article 3 (art. 3).
On the other hand, the conclusion expressed by the Commission was that the degree of severity
contemplated by Article 3 (art. 3) would not be attained.
The United Kingdom Government shared this opinion. In particular, they disputed many of the
applicant’s factual allegations as to the conditions on death row in Mecklenburg and his expected fate
there.
i. Length of detention prior to execution
106. The period that a condemned prisoner can expect to spend on death row in Virginia before being
executed is on average six to eight years (see paragraph 56 above). This length of time awaiting death
is, as the Commission and the United Kingdom Government noted, in a sense largely of the prisoner’s
own making in that he takes advantage of all avenues of appeal which are offered to him by Virginia
law. The automatic appeal to the Supreme Court of Virginia normally takes no more than six months
(see paragraph 52 above). The remaining time is accounted for by collateral attacks mounted by the
prisoner himself in habeas corpus proceedings before both the State and Federal courts and in
applications to the Supreme Court of the United States for certiorari review, the prisoner at each stage
being able to seek a stay of execution (see paragraphs 53-54 above). The remedies available under
Virginia law serve the purpose of ensuring that the ultimate sanction of death is not unlawfully or
arbitrarily imposed.
Nevertheless, just as some lapse of time between sentence and execution is inevitable if appeal
safeguards are to be provided to the condemned person, so it is equally part of human nature that the
person will cling to life by exploiting those safeguards to the full. However well-intentioned and even
potentially beneficial is the provision of the complex of post-sentence procedures in Virginia, the
consequence is that the condemned prisoner has to endure for many years the conditions on death row
and the anguish and mounting tension of living in the ever-present shadow of death.
ii. Conditions on death row
107. As to conditions in Mecklenburg Correctional Center, where the applicant could expect to be
held if sentenced to death, the Court bases itself on the facts which were uncontested by the United
Kingdom Government, without finding it necessary to determine the reliability of the additional
evidence adduced by the applicant, notably as to the risk of homosexual abuse and physical attack
undergone by prisoners on death row (see paragraph 64 above).
The stringency of the custodial regime in Mecklenburg, as well as the services (medical, legal and
social) and the controls (legislative, judicial and administrative) provided for inmates, are described in

55
some detail above (see paragraphs 61-63 and 65-68). In this connection, the United Kingdom
Government drew attention to the necessary requirement of extra security for the safe custody of
prisoners condemned to death for murder. Whilst it might thus well be justifiable in principle, the
severity of a special regime such as that operated on death row in Mecklenburg is compounded by the
fact of inmates being subject to it for a protracted period lasting on average six to eight years.
iii. The applicant’s age and mental state
108. At the time of the killings, the applicant was only 18 years old and there is some psychiatric
evidence, which was not contested as such, that he "was suffering from [such] an abnormality of mind
... as substantially impaired his mental responsibility for his acts" (see paragraphs 11, 12 and 21
above).
Unlike Article 2 (art. 2) of the Convention, Article 6 of the 1966 International Covenant on Civil and
Political Rights and Article 4 of the 1969 American Convention on Human Rights expressly prohibit
the death penalty from being imposed on persons aged less than 18 at the time of commission of the
offence. Whether or not such a prohibition be inherent in the brief and general language of Article 2
(art. 2) of the European Convention, its explicit enunciation in other, later international instruments,
the former of which has been ratified by a large number of States Parties to the European Convention,
at the very least indicates that as a general principle the youth of the person concerned is a
circumstance which is liable, with others, to put in question the compatibility with Article 3 (art. 3) of
measures connected with a death sentence.
It is in line with the Court’s case-law (as summarised above at paragraph 100) to treat disturbed
mental health as having the same effect for the application of Article 3 (art. 3).
109. Virginia law, as the United Kingdom Government and the Commission emphasised, certainly
does not ignore these two factors. Under the Virginia Code account has to be taken of mental
disturbance in a defendant, either as an absolute bar to conviction if it is judged to be sufficient to
amount to insanity or, like age, as a fact in mitigation at the sentencing stage (see paragraphs 44-47
and 50-51 above). Additionally, indigent capital murder defendants are entitled to the appointment of a
qualified mental health expert to assist in the preparation of their submissions at the separate
sentencing proceedings (see paragraph 51 above). These provisions in the Virginia Code undoubtedly
serve, as the American courts have stated, to prevent the arbitrary or capricious imposition of the death
penalty and narrowly to channel the sentencer’s discretion (see paragraph 48 above). They do not
however remove the relevance of age and mental condition in relation to the acceptability, under
Article 3 (art. 3), of the "death row phenomenon" for a given individual once condemned to death.
Although it is not for this Court to prejudge issues of criminal responsibility and appropriate sentence,
the applicant’s youth at the time of the offence and his then mental state, on the psychiatric evidence
as it stands, are therefore to be taken into consideration as contributory factors tending, in his case, to
bring the treatment on death row within the terms of Article 3 (art. 3).
iv. Possibility of extradition to the Federal Republic of Germany
110. For the United Kingdom Government and the majority of the Commission, the possibility of
extraditing or deporting the applicant to face trial in the Federal Republic of Germany (see paragraphs
16, 19, 26, 38 and 71-74 above), where the death penalty has been abolished under the Constitution
(see paragraph 72 above), is not material for the present purposes. Any other approach, the United
Kingdom Government submitted, would lead to a "dual standard" affording the protection of the
Convention to extraditable persons fortunate enough to have such an alternative destination available
but refusing it to others not so fortunate.
This argument is not without weight. Furthermore, the Court cannot overlook either the horrible nature
of the murders with which Mr Soering is charged or the legitimate and beneficial role of extradition
arrangements in combating crime. The purpose for which his removal to the United States was sought,
in accordance with the Extradition Treaty between the United Kingdom and the United States, is

56
undoubtedly a legitimate one. However, sending Mr Soering to be tried in his own country would
remove the danger of a fugitive criminal going unpunished as well as the risk of intense and protracted
suffering on death row. It is therefore a circumstance of relevance for the overall assessment under
Article 3 (art. 3) in that it goes to the search for the requisite fair balance of interests and to the
proportionality of the contested extradition decision in the particular case (see paragraphs 89 and 104
above).
(c) Conclusion
111. For any prisoner condemned to death, some element of delay between imposition and execution
of the sentence and the experience of severe stress in conditions necessary for strict incarceration are
inevitable. The democratic character of the Virginia legal system in general and the positive features
of Virginia trial, sentencing and appeal procedures in particular are beyond doubt. The Court agrees
with the Commission that the machinery of justice to which the applicant would be subject in the
United States is in itself neither arbitrary nor unreasonable, but, rather, respects the rule of law and
affords not inconsiderable procedural safeguards to the defendant in a capital trial. Facilities are
available on death row for the assistance of inmates, notably through provision of psychological and
psychiatric services (see paragraph 65 above).
However, in the Court’s view, having regard to the very long period of time spent on death row in
such extreme conditions, with the ever present and mounting anguish of awaiting execution of the
death penalty, and to the personal circumstances of the applicant, especially his age and mental state at
the time of the offence, the applicant’s extradition to the United States would expose him to a real risk
of treatment going beyond the threshold set by Article 3 (art. 3). A further consideration of relevance
is that in the particular instance the legitimate purpose of extradition could be achieved by another
means which would not involve suffering of such exceptional intensity or duration.
Accordingly, the Secretary of State’s decision to extradite the applicant to the United States would, if
implemented, give rise to a breach of Article 3 (art. 3).
This finding in no way puts in question the good faith of the United Kingdom Government, who have
from the outset of the present proceedings demonstrated their desire to abide by their Convention
obligations, firstly by staying the applicant’s surrender to the United States authorities in accord with
the interim measures indicated by the Convention institutions and secondly by themselves referring
the case to the Court for a judicial ruling (see paragraphs 1, 4, 24 and 77 above).

57
ECtHR 15.111.1996 Chahal v. UK, Application no. 22414/93

AS TO THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
A. The applicants
12. The four applicants are members of the same family and are Sikhs. The first applicant,
Karamjit Singh Chahal, is an Indian citizen who was born in 1948. He entered the United Kingdom
illegally in 1971 in search of employment. In 1974 he applied to the Home Office to regularise his
stay and on 10 December 1974 was granted indefinite leave to remain under the terms of an amnesty
for illegal entrants who arrived before 1 January 1973. Since 16 August 1990 he has been detained for
the purposes of deportation in Bedford Prison.
The second applicant, Darshan Kaur Chahal, is also an Indian citizen who was born in 1956. She
came to England on 12 September 1975 following her marriage to the first applicant in India, and
currently lives in Luton with the two children of the family, Kiranpreet Kaur Chahal (born in 1977)
and Bikaramjit Singh Chahal (born in 1978), who are the third and fourth applicants. By virtue of
their birth in the United Kingdom the two children have British nationality.
13. The first and second applicants applied for British citizenship in December 1987. Mr Chahal's
request was refused on 4 April 1989 but that of Mrs Chahal is yet to be determined.
B. Background: the conflict in Punjab
14. Since the partition of India in 1947 many Sikhs have been engaged in a political campaign for
an independent homeland, Khalistan, which would approximate to the Indian province of Punjab. In
the late 1970s, a prominent group emerged under the leadership of Sant Jarnail Singh Bhindranwale,
based at the Golden Temple in Amritsar, the holiest Sikh shrine. The Government submit that Sant
Bhindranwale, as well as preaching the tenets of orthodox Sikhism, used the Golden Temple for the
accumulation of arms and advocated the use of violence for the establishment of an independent
Khalistan.
15. The situation in Punjab deteriorated following the killing of a senior police officer in the Golden
Temple in 1983. On 6 June 1984 the Indian army stormed the temple during a religious festival,
killing Sant Bhindranwale and approximately 1,000 other Sikhs. Four months later the Indian Prime
Minister, Mrs Indira Gandhi, was shot dead by two Sikh members of her bodyguard. The ensuing
Hindu backlash included the killing of over 2,000 Sikhs in riots in Delhi.
16. Since 1984, the conflict in Punjab has reportedly claimed over 20,000 lives, peaking in 1992
when, according to Indian press reports collated by the United Kingdom Foreign and Commonwealth
Office, approximately 4,000 people were killed in related incidents in Punjab and elsewhere. There is
evidence of violence and human rights abuses perpetrated by both Sikh separatists and the security
forces (see paragraphs 45-56 below).
C. Mr Chahal's visit to India in 1984
17. On 1 January 1984 Mr Chahal travelled to Punjab with his wife and children to visit relatives.
He submits that during this visit he attended at the Golden Temple on many occasions, and saw Sant
Bhindranwale preach there approximately ten times. On one occasion he, his wife and son were
afforded a personal audience with him. At around this time Mr Chahal was baptised and began to
adhere to the tenets of orthodox Sikhism. He also became involved in organising passive resistance in
support of autonomy for Punjab.
18. On 30 March 1984 he was arrested by the Punjab police. He was taken into detention and held
for twenty-one days, during which time he was, he contended, kept handcuffed in insanitary
conditions, beaten to unconsciousness, electrocuted on various parts of his body and subjected to a
mock execution. He was subsequently released without charge.
He was able to return to the United Kingdom on 27 May 1984, and has not visited India since.

58
D. Mr Chahal's political and religious activities in the United Kingdom
19. On his return to the United Kingdom, Mr Chahal became a leading figure in the Sikh
community, which reacted with horror to the storming of the Golden Temple. He helped organise a
demonstration in London to protest at the Indian Government's actions, became a full-time member of
the committee of the "gurdwara" (temple) in Belvedere (Erith, Kent) and travelled around London
persuading young Sikhs to be baptised.
20. In August 1984 Mr Jasbir Singh Rode entered the United Kingdom. He was Sant
Bhindranwale's nephew, and recognised by Sikhs as his successor as spiritual leader. Mr Chahal
contacted him on his arrival and toured the United Kingdom with him, assisting at baptisms performed
by him. Mr Rode was instrumental in setting up branches of the International Sikh Youth Federation
("ISYF") in the United Kingdom, and the applicant played an important organisational role in this
endeavour. The ISYF was established to be the overseas branch of the All India Sikh Students'
Federation. This latter organisation was proscribed by the Indian Government until mid-1985, and is
reportedly still perceived as militant by the Indian authorities.
21. In December 1984 Mr Rode was excluded from the United Kingdom on the ground that he
publicly advocated violent methods in pursuance of the separatist campaign. On his return to India he
was imprisoned without trial until late 1988. Shortly after his release it became apparent that he had
changed his political views; he now argued that Sikhs should pursue their cause using constitutional
methods, a view which, according to the applicants, was unacceptable to many Sikhs. The former
followers of Mr Rode therefore became divided.
22. In the United Kingdom, according to the Government, this led to a split in the ISYF along
broadly north/south lines. In the north of England most branches followed Mr Rode, whereas in the
south the ISYF became linked with another Punjab political activist, Dr Sohan Singh, who continued
to support the campaign for an independent homeland. Mr Chahal and, according to him, all major
figures of spiritual and intellectual standing within the United Kingdom Sikh community were in the
southern faction.
E. Mr Chahal's alleged criminal activities
23. In October 1985 Mr Chahal was detained under the Prevention of Terrorism (Temporary
Provisions) Act 1984 ("PTA") on suspicion of involvement in a conspiracy to assassinate the Indian
Prime Minister, Mr Rajiv Gandhi, during an official visit to the United Kingdom. He was released for
lack of evidence.
In 1986 he was arrested and questioned twice (once under the PTA), because he was believed to be
involved in an ISYF conspiracy to murder moderate Sikhs in the United Kingdom. On both occasions
he was released without charge. Mr Chahal denied involvement in any of these conspiracies.
24. In March 1986 he was charged with assault and affray following disturbances at the East Ham
gurdwara in London. During the course of his trial on these charges in May 1987 there was a
disturbance at the Belvedere gurdwara, which was widely reported in the national press. Mr Chahal
was arrested in connection with this incident, and was brought to court in handcuffs on the final day of
his trial. He was convicted on both charges arising out of the East Ham incident, and served
concurrent sentences of six and nine months.
He was subsequently acquitted of charges arising out of the Belvedere disturbance.
On 27 July 1992 the Court of Appeal quashed the two convictions on the grounds that Mr Chahal's
appearance in court in handcuffs had been seriously prejudicial to him.
F. The deportation and asylum proceedings
1. The notice of intention to deport
25. On 14 August 1990 the Home Secretary (Mr Hurd) decided that Mr Chahal ought to be deported
because his continued presence in the United Kingdom was unconducive to the public good for

59
reasons of national security and other reasons of a political nature, namely the international fight
against terrorism.
A notice of intention to deport was served on the latter on 16 August 1990. He was then detained for
deportation purposes pursuant to paragraph 2 (2) of Schedule III of the Immigration Act 1971 (see
paragraph 64 below) and has remained in custody ever since.
2. Mr Chahal's application for asylum
26. Mr Chahal claimed that if returned to India he had a well-founded fear of persecution within the
terms of the United Nations 1951 Convention on the Status of Refugees ("the 1951 Convention" - see
paragraph 61 below) and applied for political asylum on 16 August 1990. He was interviewed by
officials from the Asylum Division of the Home Office on 11 September 1990 and his solicitors
submitted written representations on his behalf.
He claimed that he would be subjected to torture and persecution if returned to India, and relied upon
the following matters, inter alia:
(a) his detention and torture in Punjab in 1984 (see paragraph 18 above);
(b) his political activities in the United Kingdom and his identification with the regeneration of the
Sikh religion and the campaign for a separate Sikh State (see paragraphs 19-22 above);
(c) his links with Sant Bhindranwale and Jasbir Singh Rode; (see paragraphs 17 and 20 above);
(d) evidence that his parents, other relatives and contacts had been detained, tortured and questioned in
October 1989 about Mr Chahal's activities in the United Kingdom and that others connected to him
had died in police custody;
(e) the interest shown by the Indian national press in his alleged Sikh militancy and proposed
expulsion from the United Kingdom;
(f) consistent evidence, including that contained in the reports of Amnesty International, of the torture
and murder of those perceived to be Sikh militants by the Indian authorities, particularly the Punjab
police (see paragraphs 55-56 below).
27. On 27 March 1991 the Home Secretary refused the request for asylum. In a letter to the
applicant, he expressed the view that the latter's known support of Sikh separatism would be unlikely
to attract the interest of the Indian authorities unless that support were to include acts of violence
against India. He continued that he was
"not aware of any outstanding charges either in India or elsewhere against [Mr Chahal] and on the
account [Mr Chahal] has given of his political activities, the Secretary of State does not accept that
there is a reasonable likelihood that he would be persecuted if he were to return to India. The media
interest in his case may be known by the Indian authorities and, given his admitted involvement in an
extremist faction of the ISYF, it is accepted that the Indian Government may have some current and
legitimate interest in his activities".
The Home Secretary did not consider that Mr Chahal's experiences in India in 1984 had any continued
relevance, since that had been a time of particularly high tension in Punjab.
28. Mr Chahal's solicitors informed the Home Secretary that he intended to make an application for
judicial review of the refusal of asylum, but would wait until the advisory panel had considered the
national security case against him.
3. The advisory panel
29. Because of the national security elements of the case, there was no right of appeal against the
deportation order (see paragraphs 58 and 60 below). However, on 10 June 1991, the matter was
considered by an advisory panel, chaired by a Court of Appeal judge, Lord Justice Lloyd, and
including a former president of the Immigration Appeal Tribunal.
30. The Home Office had prepared statements on 5 April and 23 May 1991 containing an outline of
the grounds for the notice of intention to deport, which were sent to the applicant. The principal points
were as follows:

60
(a) Mr Chahal had been the central figure in directing the support for terrorism organised by the
London-based faction of the ISYF which had close links with Sikh terrorists in the Punjab;
(b) he had played a leading role in the faction's programme of intimidation directed against the
members of other groups within the United Kingdom Sikh community;
(c) he had been involved in supplying funds and equipment to terrorists in Punjab since 1985;
(d) he had a public history of violent involvement in Sikh terrorism, as evidenced by his 1986
convictions and involvement in disturbances at the Belvedere gurdwara (see paragraph 24 above).
These disturbances were related to the aim of gaining control of gurdwara funds in order to finance
support and assistance for terrorist activity in Punjab;
(e) he had been involved in planning and directing terrorist attacks in India, the United Kingdom and
elsewhere.
Mr Chahal was not informed of the sources of and the evidence for these views, which were put to the
advisory panel.
31. In a letter dated 7 June 1991, Mr Chahal's solicitors set out a written case to be put before the
advisory panel, including the following points:
(a) the southern branch of the ISYF had a membership of less than 200 and was non-violent both in
terms of its aims and history;
(b) the ISYF did not attempt to gain control of gurdwaras in order to channel funds into terrorism; this
was a purely ideological struggle on the part of young Sikhs to have gurdwaras run according to Sikh
religious values;
(c) Mr Chahal denied any involvement in the disturbances at the East Ham and Belvedere gurdwaras
(see paragraph 24 above) or in any other violent or terrorist activity in the United Kingdom or
elsewhere.
32. He appeared before the panel in person, and was allowed to call witnesses on his behalf, but was
not allowed to be represented by a lawyer or to be informed of the advice which the panel gave to the
Home Secretary (see paragraph 60 below).
33. On 25 July 1991 the Home Secretary (Mr Baker) signed an order for Mr Chahal's deportation,
which was served on 29 July.
4. Judicial review
34. On 9 August 1991 Mr Chahal applied for judicial review of the Home Secretaries' decisions to
refuse asylum and to make the deportation order. Leave was granted by the High Court on 2
September 1991. The asylum refusal was quashed on 2 December 1991 and referred back to the
Home Secretary. The court found that the reasoning behind it was inadequate, principally because the
Home Secretary had neglected to explain whether he believed the evidence of Amnesty International
relating to the situation in Punjab and, if not, the reasons for such disbelief. The court did not decide
on the validity of the deportation order. Mr Justice Popplewell expressed "enormous anxiety" about
the case.
35. After further consideration, on 1 June 1992 the Home Secretary (Mr Clarke) took a fresh
decision to refuse asylum. He considered that the breakdown of law and order in Punjab was due to
the activities of Sikh terrorists and was not evidence of persecution within the terms of the 1951
Convention. Furthermore, relying upon Articles 32 and 33 of that Convention (see paragraph 61
below), he expressed the view that, even if Mr Chahal were at risk of persecution, he would not be
entitled to the protection of the 1951 Convention because of the threat he posed to national security.
36. Mr Chahal applied for judicial review of this decision, but then requested a postponement on 4
June 1992, which was granted.
37. In a letter dated 2 July 1992, the Home Secretary informed the applicant that he declined to
withdraw the deportation proceedings, that Mr Chahal could be deported to any international airport of

61
his choice within India and that the Home Secretary had sought and received an assurance from the
Indian Government (which was subsequently repeated in December 1995) in the following terms:
"We have noted your request to have a formal assurance to the effect that, if Mr Karamjit Singh
Chahal were to be deported to India, he would enjoy the same legal protection as any other Indian
citizen, and that he would have no reason to expect to suffer mistreatment of any kind at the hands of
the Indian authorities.
I have the honour to confirm the above."
38. On 16 July 1992 the High Court granted leave to apply for judicial review of the decisions of 1
June 1992 to maintain the refusal of asylum and of 2 July 1992 to proceed with the deportation. An
application for bail was rejected on 23 July (the European Court of Human Rights was not provided
with details of this ruling).
39. The Court of Appeal (Criminal Division) quashed Mr Chahal's 1987 convictions on 27 July
1992 (see paragraph 24 above). The Home Secretary reviewed the case in the light of this
development, but concluded that it was right to proceed with the deportation.
40. The hearing of the application for judicial review took place between 18 and 21 January 1993.
It was refused on 12 February 1993 by Mr Justice Potts in the High Court, as was a further application
for bail (the European Court of Human Rights was not provided with details of this ruling either).
41. Mr Chahal appealed to the Court of Appeal. The appeal was heard on 28 July 1993 and
dismissed on 22 October 1993 (R. v. Secretary of State for the Home Department, ex parte Chahal
[1994] Immigration Appeal Reports, p. 107).
The court held that the combined effect of the 1951 Convention and the Immigration Rules (see
paragraphs 61-62 below) was to require the Home Secretary to weigh the threat to Mr Chahal's life or
freedom if he were deported against the danger to national security if he were permitted to stay. In the
words of Lord Justice Nolan:
"The proposition that, in deciding whether the deportation of an individual would be in the public
good, the Secretary of State should wholly ignore the fact that the individual has established a well-
founded fear of persecution in the country to which he is to be sent seems to me to be surprising and
unacceptable. Of course there may very well be occasions when the individual poses such a threat to
this country and its inhabitants that considerations of his personal safety and well-being become
virtually irrelevant. Nonetheless one would expect that the Secretary of State would balance the risks
to this country against the risks to the individual, albeit that the scales might properly be weighted in
favour of the former."
The Home Secretary appeared to have taken into account the evidence that the applicant might be
persecuted and it was not possible for the court to judge whether his decision to deport was irrational
or perverse because it did not have access to the evidence relating to the national security risk posed
by Mr Chahal. As Lord Justice Neill remarked:
"The court has the right to scrutinise a claim that a person should be deported in the interests of
national security but in practice this scrutiny may be defective or incomplete if all the relevant facts
are not before the court."
In the absence of evidence of irrationality or perversity, it was impossible under English law to set
aside the Home Secretary's decision (see paragraph 66 below).
42. The Court of Appeal refused leave to appeal to the House of Lords, and this was also refused by
the House of Lords on 3 March 1994.
43. Following the report of the Commission, the applicant applied for temporary release pending the
decision of the European Court of Human Rights, by way of habeas corpus and judicial review
proceedings in the Divisional Court (see paragraph 65 below). The Secretary of State opposed the
application on the following grounds:

62
"The applicant was detained in August 1990 and served with notice of intention to deport because the
then Secretary of State was satisfied that he represented a substantial threat to national security. The
Secretary of State remains satisfied that such a threat persists ... Given the reasons for the applicant's
deportation, the Secretary of State remains satisfied that his temporary release from detention would
not be justified. He has concluded the applicant could not be safely released, subject to restrictions,
in view of the nature of the threat posed by him."
Judgment was given on 10 November 1995
(R. v. Secretary of State for the Home Department, ex parte Chahal, unreported). Mr Justice
MacPherson in the Divisional Court rejected the application for habeas corpus, on the ground that "the
detention per se was plainly lawful because the Secretary of State [had] the power to detain an
individual who [was] the subject of a decision to make a deportation order". In connection with the
application for judicial review of the Secretary of State's decision to detain Mr Chahal, the Judge
remarked:
"I have to look at the decision of the Secretary of State and judge whether, in all the circumstances,
upon the information available, he has acted unlawfully, or with procedural impropriety, or
perversely to the point of irrationality. I am wholly unable to say that there is a case for such a
decision, particularly bearing in mind that I do not know the full material on which the decisions have
been made ... [I]t is obvious and right that in certain circumstances the Executive must be able to
keep secret matters which they deem to be necessary to keep secret ... There are no grounds, in my
judgment, for saying or even suspecting that there are not matters which are present in the Secretary
of State's mind of that kind upon which he was entitled to act ..."
G. Current conditions in India and in Punjab
44. The current position with regard to the protection of human rights in India generally and in
Punjab more specifically was a matter of dispute between the parties. A substantial amount of
evidence was presented to the Court on this issue, some of which is summarised below.
1. Material submitted by the Government
45. The Government submitted that it appeared from Indian press reports collated by the Foreign
and Commonwealth Office that the number of lives lost in Punjab from terrorism had decreased
dramatically. In 1992 the figure was 4,000, in 1993 it was 394, and in 1994 it was 51. The former
Chief Minister of Punjab, Mr Beant Singh, was assassinated in August 1995; that aside, there was little
terrorist activity and only four terrorist-related deaths in the region in 1995.
46. Furthermore, democracy had returned to the State: almost all factions of the Akali Dal, the main
Sikh political party, had united and were set to contest the next general election as one entity and the
Gidderbaha by-election passed off peacefully, with a turn-out of 88%.
47. The United Kingdom High Commission continued to receive complaints about the Punjab
police. However, in recent months these had related mainly to extortion rather than to politically-
motivated abuses and they were consistently told that there was now little or no politically-motivated
police action in Punjab.
48. Steps had been taken by the Indian authorities to deal with the remaining corruption and misuse
of power in Punjab; for example, there had been a number of court judgments against police officers, a
"Lok Pal" (ombudsman) had been appointed and the new Chief Minister had promised to "ensure
transparency and accountability". The Indian National Human Rights Commission ("NHRC"), which
had reported on Punjab (see below) continued to strengthen and develop.
2. The Indian National Human Rights Commission reports
49. The NHRC visited Punjab in April 1994 and reported as follows:
"The complaints of human rights violations made to the Commission fall broadly into three
categories. Firstly, there were complaints against the police, of arbitrary arrests, disappearances,
custodial deaths and fake encounters resulting in killings ...

63
There was near unanimity in the views expressed by the public at large that terrorism has been
contained ... [A] feeling was now growing that it was time for the police to cease operating under the
cover of special laws. There were very strong demands for normalising the role and functioning of
the police and for re-establishing the authority of the District Magistrates over the police. The
impression that the Commission has gathered is that ... the Magistracy at District level is not at
present in a position to inquire into complaints of human rights violations by the police. In the public
mind there is a prevailing feeling of the police being above the law, working on its own steam and
answerable to none ... The Commission recommends that the Government examine this matter
seriously and ensure that normalcy is restored ..."
50. In addition, in its annual report for 1994/1995, the NHRC recommended, as a matter of priority,
a systematic reform, retraining and reorganisation of the police throughout India, having commented:
"The issue of custodial death and rape, already high in the priorities of the Commission, was set in the
wider context of the widespread mistreatment of prisoners resulting from practices that can only be
described as cruel, inhuman or degrading."
3. Reports to the United Nations
51. The reports to the United Nations in 1994 and 1995 of the Special Rapporteur on torture and
other cruel, inhuman and degrading treatment or punishment and in 1994 of the Special Rapporteur on
extrajudicial, summary or arbitrary executions and the Working Group on enforced and involuntary
disappearances recounted that human rights violations on the part of the security forces were
widespread in India.
For example, in his 1995 report, the Special Rapporteur on torture commented on the practice of
torture in police custody:
"It is apparent that few incidents, in what is credibly alleged to be a widespread, if not endemic,
phenomenon are prosecuted and even fewer lead to conviction of the perpetrators. It is to be noted
that very many cases that come to the attention of the Special Rapporteur are those that result in
death, in other words, those where torture may have been applied with the most extreme results. This
must be a minority of cases of torture in the country [India]."
4. The United States' Department of State reports
52. The 1995 United States' Department of State report on India told of human rights abuses
perpetrated by the Punjab police acting outside their home State: "Punjab police hit teams again in
1994 pursued Sikh militants into other parts of India. On June 24, Punjab police shot and killed
Karnail Singh Kaili, a man they identified as a Sikh terrorist ... in West Bengal. The Government of
West Bengal claimed that it had not been informed of the presence of Punjab police in West Bengal,
seized Kaili's body and weapons and barred the departure of the police team until the Punjab Chief
Minister apologised."
53. In contrast, the most recent Department of State report (March 1996) declared that insurgent
violence had largely disappeared in Punjab and that there was visible progress in correcting patterns of
abuse by the police. It continued:
"Killings of Sikh militants by police in armed encounters appear to be virtually at an end. During the
first eight months of [1995], only two persons were killed in police encounters. Attention was
focused on past abuses in Punjab by press reports that hundreds of bodies, many allegedly those of
persons who died in unacknowledged police custody, were cremated as 'unclaimed' during 1991-1993
or discovered at the bottom of recently drained canals."
5. The Immigration Appeal Tribunal
54. The United Kingdom Immigration Appeal Tribunal took account of allegations of the extra-
territorial activities of the Punjab police in the case of Charan Singh Gill v. Secretary of State for the
Home Department (14 November 1994, unreported), which related to an appeal by a politically active
Sikh against the Secretary of State's refusal to grant him political asylum. The appellant drew the

64
attention of the tribunal to a story in the Punjab Times of 10 May 1994, which reported the killing by
the Punjab police of two Sikh fighters in West Bengal. The chairman of the tribunal remarked:
"We should say that we do not accept [the representative of the Home Office's] view of this
document, that it was more probably based on imaginative journalism than on fact. In our view, it
affords valuable retrospective corroboration of the material set out above, demonstrating that the
Punjab police are very much a law unto themselves, and are ready to track down anyone they regard
as subversive, as and when the mood takes them, anywhere in India."
6. The reports of Amnesty International
55. In its report of May 1995, "Punjab police: beyond the bounds of the law", Amnesty International
similarly alleged that the Punjab police were known to have carried out abductions and executions of
suspected Sikh militants in other Indian States outside their jurisdiction. The Supreme Court in New
Delhi had reportedly taken serious note of the illegal conduct of the Punjab police, publicly accusing
them of "highhandedness and tyranny" and had on several occasions between 1993 and 1994 ordered
investigations into their activities. Following the killing of a Sikh in Calcutta in May 1994, which
provoked an angry reaction from the West Bengal State Government, the Union Home Secretary had
convened a meeting of all director generals of police on 5 July 1994 to discuss concerns expressed by
certain States following the intrusion by the Punjab police into their territories. One of the stated aims
of the meeting was to try to work out a formula whereby the Punjab police would conduct their
operations in cooperation with the respective State governments.
56. In its October 1995 report, "India: Determining the fate of the 'disappeared' in Punjab", Amnesty
International claimed that high-profile individuals continued to "disappear" in police custody. Among
the examples cited were the general secretary of the human rights wing of the Sikh political party, the
Akali Dal, who was reportedly arrested on 6 September 1995 and had not been seen since.

[...]

AS TO THE LAW
I. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION (art. 3)
72. The first applicant complained that his deportation to India would constitute a violation of
Article 3 of the Convention (art. 3), which states:
"No one shall be subjected to torture or to inhuman or degrading treatment or punishment." The
Commission upheld this complaint, which the Government contested.
A. Applicability of Article 3 (art. 3) in expulsion cases
73. As the Court has observed in the past, Contracting States have the right, as a matter of well-
established international law and subject to their treaty obligations including the Convention, to
control the entry, residence and expulsion of aliens. Moreover, it must be noted that the right to
political asylum is not contained in either the Convention or its Protocols (see the Vilvarajah and
Others v. the United Kingdom judgment of 30 October 1991, Series A no. 215, p. 34, para. 102).
74. However, it is well established in the case-law of the Court that expulsion by a Contracting State
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 in
question, if expelled, would face a real risk of being subjected to treatment contrary to Article 3 (art. 3)
in the receiving country. In these circumstances, Article 3 (art. 3) implies the obligation not to expel
the person in question to that country (see the Soering v. the United Kingdom judgment of 7 July
1989, Series A no. 161, p. 35, paras. 90-91, the Cruz Varas and Others v. Sweden judgment of 20
March 1991, Series A no. 201, p. 28, paras. 69-70, and the above-mentioned Vilvarajah and Others
judgment, p. 34, para. 103).

65
The Government contested this principle before the Commission but accepted it in their pleadings
before the Court.
B. Expulsion cases involving an alleged danger to national security
75. The Court notes that the deportation order against the first applicant was made on the ground
that his continued presence in the United Kingdom was unconducive to the public good for reasons of
national security, including the fight against terrorism (see paragraph 25 above). The parties differed
as to whether, and if so to what extent, the fact that the applicant might represent a danger to the
security of the United Kingdom affected that State's obligations under Article 3 (art. 3).
76. Although the Government's primary contention was that no real risk of ill-treatment had been
established (see paragraphs 88 and 92 below), they also emphasised that the reason for the intended
deportation was national security. In this connection they submitted, first, that the guarantees afforded
by Article 3 (art. 3) were not absolute in cases where a Contracting State proposed to remove an
individual from its territory. Instead, in such cases, which required an uncertain prediction of future
events in the receiving State, various factors should be taken into account, including the danger posed
by the person in question to the security of the host nation. Thus, there was an implied limitation to
Article 3 (art. 3) entitling a Contracting State to expel an individual to a receiving State even where a
real risk of ill-treatment existed, if such removal was required on national security grounds. The
Government based this submission in the first place on the possibility of implied limitations as
recognised in the Court's case-law, particularly paragraphs 88 and 89 of its above-mentioned Soering
judgment. In support, they furthermore referred to the principle under international law that the right
of an alien to asylum is subject to qualifications, as is provided for, inter alia, by Articles 32 and 33 of
the United Nations 1951 Convention on the Status of Refugees (see paragraph 61 above).
In the alternative, the threat posed by an individual to the national security of the Contracting State
was a factor to be weighed in the balance when considering the issues under Article 3 (art. 3). This
approach took into account that in these cases there are varying degrees of risk of ill-treatment. The
greater the risk of ill-treatment, the less weight should be accorded to the threat to national security.
But where there existed a substantial doubt with regard to the risk of ill-treatment, the threat to
national security could weigh heavily in the balance to be struck between protecting the rights of the
individual and the general interests of the community. This was the case here: it was at least open to
substantial doubt whether the alleged risk of ill-treatment would materialise; consequently, the fact
that Mr Chahal constituted a serious threat to the security of the United Kingdom justified his
deportation.
77. The applicant denied that he represented any threat to the national security of the United
Kingdom, and contended that, in any case, national security considerations could not justify exposing
an individual to the risk of ill-treatment abroad any more than they could justify administering torture
to him directly.
78. The Commission, with whom the intervenors (see paragraph 6 above) agreed, rejected the
Government's arguments. It referred to the Court's Vilvarajah and Others judgment (cited at paragraph
73 above, p. 36, para. 108) and expressed the opinion that the guarantees afforded by Article 3 (art. 3)
were absolute in character, admitting of no exception.
At the hearing before the Court, the Commission's Delegate suggested that the passages in the Court's
Soering judgment upon which the Government relied (see paragraph 76 above) might be taken as
authority for the view that, in a case where there were serious doubts as to the likelihood of a person
being subjected to treatment or punishment contrary to Article 3 (art. 3), the benefit of that doubt
could be given to the deporting State whose national interests were threatened by his continued
presence. However, the national interests of the State could not be invoked to override the interests of
the individual where substantial grounds had been shown for believing that he would be subjected to
ill-treatment if expelled.

66
79. Article 3 (art. 3) enshrines one of the most fundamental values of democratic society (see the
above-mentioned Soering judgment, p. 34, para. 88). The Court is well aware of the immense
difficulties faced by States in modern times in protecting their communities from terrorist violence.
However, even in these circumstances, the Convention prohibits in absolute terms torture or inhuman
or degrading treatment or punishment, irrespective of the victim's conduct. Unlike most of the
substantive clauses of the Convention and of Protocols Nos. 1 and 4 (P1, P4), Article 3 (art. 3) makes
no provision for exceptions and no derogation from it is permissible under Article 15 (art. 15) even in
the event of a public emergency threatening the life of the nation (see the Ireland v. the United
Kingdom judgment of 18 January 1978, Series A no. 25, p. 65, para. 163, and also the Tomasi v.
France judgment of 27 August 1992, Series A no. 241-A, p. 42, para. 115).
80. The prohibition provided by Article 3 (art. 3) against ill-treatment is equally absolute in
expulsion cases. Thus, whenever substantial grounds have been shown for believing that an individual
would face a real risk of being subjected to treatment contrary to Article 3 (art. 3) if removed to
another State, the responsibility of the Contracting State to safeguard him or her against such treatment
is engaged in the event of expulsion (see the above-mentioned Vilvarajah and Others judgment, p. 34,
para. 103). In these circumstances, the activities of the individual in question, however undesirable or
dangerous, cannot be a material consideration. The protection afforded by Article 3 (art. 3) is thus
wider than that provided by Articles 32 and 33 of the United Nations 1951 Convention on the Status of
Refugees (see paragraph 61 above).
81. Paragraph 88 of the Court's above-mentioned Soering judgment, which concerned extradition to
the United States, clearly and forcefully expresses the above view. It should not be inferred from the
Court's remarks concerning the risk of undermining the foundations of extradition, as set out in
paragraph 89 of the same judgment, that there is any room for balancing the risk of ill-treatment
against the reasons for expulsion in determining whether a State's responsibility under Article 3 (art. 3)
is engaged.
82. It follows from the above that it is not necessary for the Court to enter into a consideration of the
Government's untested, but no doubt bona fide, allegations about the first applicant's terrorist activities
and the threat posed by him to national security.
C. Application of Article 3 (art. 3) in the circumstances of the case
1. The point of time for the assessment of the risk
83. Although there were differing views on the situation in India and in Punjab (see paragraphs 87-
91 below), it was agreed that the violence and instability in that region reached a peak in 1992 and had
been abating ever since. For this reason, the date taken by the Court for its assessment of the risk to
Mr Chahal if expelled to India is of importance.
84. The applicant argued that the Court should consider the position in June 1992, at the time when
the decision to deport him was made final (see paragraph 35 above). The purpose of the stay on
removal requested by the Commission (see paragraph 4 above) was to prevent irremediable damage
and not to afford the High Contracting Party with an opportunity to improve its case. Moreover, it was
not appropriate that the Strasbourg organs should be involved in a continual fact-finding operation.
85. The Government, with whom the Commission agreed, submitted that because the responsibility
of the State under Article 3 of the Convention (art. 3) in expulsion cases lies in the act of exposing an
individual to a real risk of ill-treatment, the material date for the assessment of risk was the time of the
proposed deportation. Since Mr Chahal had not yet been expelled, the relevant time was that of the
proceedings before the Court.
86. It follows from the considerations in paragraph 74 above that, as far as the applicant's complaint
under Article 3 (art. 3) is concerned, the crucial question is whether it has been substantiated that there
is a real risk that Mr Chahal, if expelled, would be subjected to treatment prohibited by that Article
(art. 3). Since he has not yet been deported, the material point in time must be that of the Court's

67
consideration of the case. It follows that, although the historical position is of interest in so far as it
may shed light on the current situation and its likely evolution, it is the present conditions which are
decisive.
2. The assessment of the risk of ill-treatment
(a) The arguments
(i) General conditions
87. It was the applicant's case that the Government's assessment of conditions in India and Punjab
had been profoundly mistaken throughout the domestic and Strasbourg proceedings. He referred to a
number of reports by governmental bodies and by intergovernmental and non-governmental
organisations on the situation in India generally and in Punjab in particular, with emphasis on those
reports concerning 1994 and 1995 (see paragraphs 49-56 above) and argued that this material
established the contention that human rights abuse in India by the security forces, especially the
police, remained endemic.
In response to the Government's offer to return him to the part of India of his choice, he asserted that
the Punjab police had abducted and killed militant Sikhs outside their home State in the past.
Although he accepted that there had been some improvements in Punjab since the peak of unrest in
1992, he insisted that there had been no fundamental change of regime. On the contrary, what
emerged from the above reports was the continuity of the practices of the security agencies. In this
respect he pointed to the fact that the director general of the Punjab police, who had been responsible
for many human rights abuses during his term of office between 1992 and 1995, had been replaced
upon his retirement by his former deputy and intelligence chief.
88. The Government contended that there would be no real risk of Mr Chahal being ill-treated if the
deportation order were to be implemented and emphasised that the latter was to be returned to
whichever part of India he chose, and not necessarily to Punjab. In this context they pointed out that
they regularly monitored the situation in India through the United Kingdom High Commission in New
Delhi. It appeared from this information that positive concrete steps had been taken and continued to
be taken to deal with human rights abuses. Specific legislation had been introduced in this regard; the
National Human Rights Commission, which performed an important function, continued to strengthen
and develop; and steps had been taken by both the executive and judicial authorities to deal with the
remaining misuse of power. The situation in India generally was therefore such as to support their
above contention.
Furthermore, with reference to the matters set out in paragraphs 45-48 above, they contended that the
situation in Punjab had improved substantially in recent years. They stressed that there was now little
or no terrorist activity in that State. An ombudsman had been established to look into complaints of
misuse of power and the new Chief Minister had publicly declared the government's intentions to
stamp out human rights abuses. Legal proceedings had been brought against police officers alleged to
have been involved in unlawful activity.
89. Amnesty International in its written submissions informed the Court that prominent Sikh
separatists still faced a serious risk of "disappearance", detention without charge or trial, torture and
extrajudicial execution, frequently at the hands of the Punjab police. It referred to its 1995 report
which documented a pattern of human rights violations committed by officers of the Punjab police
acting in under-cover operations outside their home State (see paragraph 55 above).
90. The Government, however, urged the Court to proceed with caution in relation to the material
prepared by Amnesty International, since it was not possible to verify the facts of the cases referred to.
Furthermore, when studying these reports it was tempting to lose sight of the broader picture of
improvement by concentrating too much on individual cases of alleged serious human rights abuses.
Finally, since the situation in Punjab had changed considerably in recent years, earlier reports prepared
by Amnesty and other organisations were now of limited use.

68
91. On the basis of the material before it, the Commission accepted that there had been an
improvement in the conditions prevailing in India and, more specifically, in Punjab. However, it was
unable to find in the recent material provided by the Government any solid evidence that the Punjab
police were now under democratic control or that the judiciary had been able fully to reassert its own
independent authority in the region.
(ii) Factors specific to Mr Chahal
92. Those appearing before the Court also differed in their assessment of the effect which Mr
Chahal's notoriety would have on his security in India.
In the Government's view, the Indian Government were likely to be astute to ensure that no ill-
treatment befell Mr Chahal, knowing that the eyes of the world would be upon him. Furthermore, in
June 1992 and December 1995 they had sought and received assurances from the Indian Government
(see paragraph 37 above).
93. The applicant asserted that his high profile would increase the danger of persecution. By taking
the decision to deport him on national security grounds the Government had, as was noted by Mr
Justice Popplewell in the first judicial review hearing (see paragraph 34 above), in effect publicly
branded him a terrorist. Articles in the Indian press since 1990 indicated that he was regarded as such
in India, and a number of his relatives and acquaintances had been detained and ill-treated in Punjab
because of their connection to him. The assurances of the Indian Government were of little value
since that Government had shown themselves unable to control the security forces in Punjab and
elsewhere. The applicant also referred to examples of well-known personalities who had recently
"disappeared".
94. For the Commission, Mr Chahal, as a leading Sikh militant suspected of involvement in acts of
terrorism, was likely to be of special interest to the security forces, irrespective of the part of India to
which he was returned.
(b) The Court's approach
95. Under the Convention system, the establishment and verification of the facts is primarily a
matter for the Commission (Articles 28 para. 1 and 31) (art. 28-1, art. 31). Accordingly, it is only in
exceptional circumstances that the Court will use its powers in this area (see the Cruz Varas and
Others judgment mentioned at paragraph 74 above, p. 29, para. 74).
96. However, the Court is not bound by the Commission's findings of fact and is free to make its
own assessment. Indeed, in cases such as the present the Court's examination of the existence of a real
risk of ill-treatment must necessarily be a rigorous one, in view of the absolute character of Article 3
(art. 3) and the fact that it enshrines one of the fundamental values of the democratic societies making
up the Council of Europe (see the Vilvarajah and Others judgment mentioned at paragraph 73 above,
p. 36, para. 108).
97. In determining whether it has been substantiated that there is a real risk that the applicant, if
expelled to India, would be subjected to treatment contrary to Article 3 (art. 3), the Court will assess
all the material placed before it and, if necessary, material obtained of its own motion (see the above-
mentioned Vilvarajah and Others judgment, p. 36, para. 107). Furthermore, since the material point in
time for the assessment of risk is the date of the Court's consideration of the case (see paragraph 86
above), it will be necessary to take account of evidence which has come to light since the
Commission's review.
98. In view of the Government's proposal to return Mr Chahal to the airport of his choice in India, it
is necessary for the Court to evaluate the risk of his being ill-treated with reference to conditions
throughout India rather than in Punjab alone. However, it must be borne in mind that the first
applicant is a well-known supporter of Sikh separatism. It follows from these observations that
evidence relating to the fate of Sikh militants at the hands of the security forces outside the State of
Punjab is of particular relevance.

69
99. The Court has taken note of the Government's comments relating to the material contained in
the reports of Amnesty International (see paragraph 90 above). Nonetheless, it attaches weight to
some of the most striking allegations contained in those reports, particularly with regard to
extrajudicial killings allegedly perpetrated by the Punjab police outside their home State and the action
taken by the Indian Supreme Court, the West Bengal State Government and the Union Home
Secretary in response (see paragraph 55 above). Moreover, similar assertions were accepted by the
United Kingdom Immigration Appeal Tribunal in Charan Singh Gill v. Secretary of State for the
Home Department (see paragraph 54 above) and were included in the 1995 United States' State
Department report on India (see paragraph 52 above). The 1994 National Human Rights
Commission's report on Punjab substantiated the impression of a police force completely beyond the
control of lawful authority (see paragraph 49 above).
100. The Court is persuaded by this evidence, which has been corroborated by material from a
number of different objective sources, that, until mid-1994 at least, elements in the Punjab police were
accustomed to act without regard to the human rights of suspected Sikh militants and were fully
capable of pursuing their targets into areas of India far away from Punjab.
101. The Commission found in paragraph 111 of its report that there had in recent years been an
improvement in the protection of human rights in India, especially in Punjab, and evidence produced
subsequent to the Commission's consideration of the case indicates that matters continue to advance.
In particular, it would appear that the insurgent violence in Punjab has abated; the Court notes the very
substantial reduction in terrorist-related deaths in the region as indicated by the respondent
Government (see paragraph 45 above). Furthermore, other encouraging events have reportedly taken
place in Punjab in recent years, such as the return of democratic elections, a number of court
judgments against police officers, the appointment of an ombudsman to investigate abuses of power
and the promise of the new Chief Minister to "ensure transparency and accountability" (see paragraphs
46 and 48 above). In addition, the 1996 United States' State Department report asserts that during
1995 "there was visible progress in correcting patterns of abuse by the [Punjab] police" (see paragraph
53 above).
102. Nonetheless, the evidence demonstrates that problems still persist in connection with the
observance of human rights by the security forces in Punjab. As the respondent Government
themselves recounted, the United Kingdom High Commission in India continues to receive complaints
about the Punjab police, although in recent months these have related mainly to extortion rather than
to politically motivated abuses (see paragraph 47 above). Amnesty International alleged that
"disappearances" of notable Sikhs at the hands of the Punjab police continued sporadically throughout
1995 (see paragraph 56 above) and the 1996 State Department report referred to the killing of two
Sikh militants that year (see paragraph 53 above).
103. Moreover, the Court finds it most significant that no concrete evidence has been produced of
any fundamental reform or reorganisation of the Punjab police in recent years. The evidence referred
to above (paragraphs 49-56) would indicate that such a process was urgently required, and indeed this
was the recommendation of the NHRC (see paragraph 49 above). Although there was a change in the
leadership of the Punjab police in 1995, the director general who presided over some of the worst
abuses this decade has only been replaced by his former deputy and intelligence chief (see paragraph
87 above).
Less than two years ago this same police force was carrying out well-documented raids into other
Indian States (see paragraph 100 above) and the Court cannot entirely discount the applicant's claims
that any recent reduction in activity stems from the fact that key figures in the campaign for Sikh
separatism have all either been killed, forced abroad or rendered inactive by torture or the fear of
torture. Furthermore, it would appear from press reports that evidence of the full extent of past abuses
is only now coming to light (see paragraph 53 above).

70
104. Although the Court is of the opinion that Mr Chahal, if returned to India, would be most at risk
from the Punjab security forces acting either within or outside State boundaries, it also attaches
significance to the fact that attested allegations of serious human rights violations have been levelled
at the police elsewhere in India. In this respect, the Court notes that the United Nations' Special
Rapporteur on torture has described the practice of torture upon those in police custody as "endemic"
and has complained that inadequate measures are taken to bring those responsible to justice (see
paragraph 51 above). The NHRC has also drawn attention to the problems of widespread, often fatal,
mistreatment of prisoners and has called for a systematic reform of the police throughout India (see
paragraph 50 above).
105. Although the Court does not doubt the good faith of the Indian Government in providing the
assurances mentioned above (paragraph 92), it would appear that, despite the efforts of that
Government, the NHRC and the Indian courts to bring about reform, the violation of human rights by
certain members of the security forces in Punjab and elsewhere in India is a recalcitrant and enduring
problem (see paragraph 104 above).
Against this background, the Court is not persuaded that the above assurances would provide Mr
Chahal with an adequate guarantee of safety.
106. The Court further considers that the applicant's high profile would be more likely to increase
the risk to him of harm than otherwise. It is not disputed that Mr Chahal is well known in India to
support the cause of Sikh separatism and to have had close links with other leading figures in that
struggle (see paragraphs 17 and 20 above). The respondent Government have made serious, albeit
untested, allegations of his involvement in terrorism which are undoubtedly known to the Indian
authorities. The Court is of the view that these factors would be likely to make him a target of interest
for hard-line elements in the security forces who have relentlessly pursued suspected Sikh militants in
the past (see paragraphs 49-56 above).
107. For all the reasons outlined above, in particular the attested involvement of the Punjab police in
killings and abductions outside their State and the allegations of serious human rights violations which
continue to be levelled at members of the Indian security forces elsewhere, the Court finds it
substantiated that there is a real risk of Mr Chahal being subjected to treatment contrary to Article 3
(art. 3) if he is returned to India.
Accordingly, the order for his deportation to India would, if executed, give rise to a violation of
Article 3 (art. 3).

71
HOUSE OF LORDS SESSION 2005–06 [2005] UKHL 71

on appeal from: [2004] EWCA Civ 1123


OPINIONS
OF THE LORDS OF APPEAL
FOR JUDGMENT IN THE CAUSE
A (FC) and others (FC) (Appellants) v. Secretary of State for the
Home Department (Respondent) (2004)
A and others (Appellants) (FC) and others v. Secretary of State
for the Home Department (Respondent)
(Conjoined Appeals)

LORD BINGHAM OF CORNHILL

My Lords,

1. May the Special Immigration Appeals Commission (“SIAC”), a superior court of record established
by statute, when hearing an appeal under section 25 of the Anti-terrorism, Crime and Security Act
2001 by a person certified and detained under sections 21 and 23 of that Act, receive evidence which
has or may have been procured by torture inflicted, in order to obtain evidence, by officials of a
foreign state without the complicity of the British authorities? That is the central question which the
House must answer in these appeals. The appellants, relying on the common law of England, on the
European Convention on Human Rights and on principles of public international law, submit that the
question must be answered with an emphatic negative. The Secretary of State agrees that this answer
would be appropriate in any case where the torture had been inflicted by or with the complicity of the
British authorities. He further states that it is not his intention to rely on, or present to SIAC or to the
Administrative Court in relation to control orders, evidence which he knows or believes to have been
obtained by a third country by torture. This intention is, however, based on policy and not on any
acknowledged legal obligation. Like any other policy it may be altered, by a successor in office or if
circumstances change. The admission of such evidence by SIAC is not, he submits, precluded by law.
Thus he contends for an affirmative answer to the central question stated above. The appellants’ case
is supported by written and oral submissions made on behalf of 17 well-known bodies dedicated to the
protection of human rights, the suppression of torture and maintenance of the rule of law.

2. The appeals now before the House are a later stage of the proceedings in which the House gave
judgment in December 2004: A and others v Secretary of State for the Home Department, X and
another v Secretary of State for the Home Department [2004] UKHL 56, [2005] 2 AC 68. In their
opinions given then, members of the House recited the relevant legislative provisions and recounted
the relevant history of the individual appellants up to that time. To avoid wearisome repetition, I shall
treat that material as incorporated by reference into this opinion, and make only such specific
reference to it as is necessary for resolving these appeals. The Anti-terrorism, Crime and Security Act
2001
3. The 2001 Act was this country’s legislative response to the grave and inexcusable crimes committed
in New York, Washington DC and Pennsylvania on 11 September 2001, and manifested the
government’s determination to protect the public against the dangers of international terrorism. Part 4
of the Act accordingly established a new regime, applicable to persons who were not British citizens,
whose presence in the United Kingdom the Secretary of State reasonably believed to be a risk to
national security and whom the Secretary of State reasonably suspected of being terrorists as defined
in the legislation. By section 21 of the Act he was authorised to issue a certificate in respect of any

72
such person, and to revoke such a certificate. Any action of the Secretary of State taken wholly or
partly in reliance on such a certificate might be questioned in legal proceedings only in a prescribed
manner.
4. Sections 22 and 23 of the Act recognised that it might not, for legal or practical reasons, be possible
to deport or remove from the United Kingdom a suspected international terrorist certified under
section 21, and power was given by section 23 to detain such a person, whether temporarily or
indefinitely. This provision was thought to call for derogation from the provisions of article 5(1)(f) of
the European Convention, which it was sought to effect by a Derogation Order, the validity of which
was one of the issues in the earlier stages of the proceedings. 5. Section 25 of the Act enables a person
certified under section 21 to appeal to SIAC against his certification. On such an appeal SIAC must
cancel the certificate if “(a) it considers that there are no reasonable grounds for a belief or suspicion
of the kind referred to in section 21(1)(a) or (b), or (b) it considers that for some other reason the
certificate should not have been issued”. If the certificate is cancelled it is to be treated as never having
been issued, but if SIAC determines not to cancel a certificate it must dismiss the appeal. Section 26
provides that certifications shall be the subject of periodic review by SIAC.
SIAC
6. SIAC was established by the Special Immigration Appeals Commission Act 1997, which sought to
reconcile the competing demands of procedural fairness and national security in the case of foreign
nationals whom it was proposed to deport on the grounds of their danger to the public. Thus by section
1 (as amended by section 35 of the 2001 Act) SIAC was to be a superior court of record, now (since
amendment in 2002) including among its members persons holding or having held high judicial office,
persons who are or have been appointed as chief adjudicators under the Nationality, Immigration and
Asylum Act 2002, persons who are or have been qualified to be members of the Immigration Appeal
Tribunal and experienced lay members. All are appointed by the Lord Chancellor, who is authorised
by section 5 of the Act to make rules governing SIAC’s procedure. Such rules, which must be laid
before and approved by resolution of each House of Parliament, have been duly made. Such rules
may, by the express terms of sections 5 and 6, provide for the proceedings to be heard without the
appellant being given full particulars of the reason for the decision under appeal, for proceedings to be
held in the absence of the appellant and his legal representative, for the appellant to be given a
summary of the evidence taken in his absence and for appointment by the relevant law officer of a
legally qualified special advocate to represent the interests of an appellant in proceedings before SIAC
from which the appellant and his legal representative are excluded, such person having no
responsibility towards the person whose interests he is appointed to represent.
7. The rules applicable to these appeals are the Special Immigration Appeals Commission (Procedure)
Rules 2003 (SI 2003/1034). Part 3 of the Rules governs appeals under section 25 of the 2001 Act. In
response to a notice of appeal, the Secretary of State, if he intends to oppose the appeal, must file a
statement of the evidence on which he relies, but he may object to this being disclosed to the appellant
or his lawyer (rule 16): if he objects, a special advocate is appointed, to whom this “closed material” is
disclosed (rule 37). SIAC may overrule the Secretary of State’s objection and order him to serve this
material on the appellant, but in this event the Secretary of State may choose not to rely on the
material in the proceedings (rule 38). A special advocate may make submissions to SIAC and cross-
examine witnesses when an appellant is excluded and make written submissions (rule 35), but may not
without the directions of SIAC communicate with an appellant or his lawyer or anyone else once the
closed material has been disclosed to him (rule 36). Rule 44(3) provides that SIAC “may receive
evidence that would not be admissible in a court of law”. The general rule excluding evidence of
intercepted communications, now found in section 17(1) of the Regulation of Investigatory Powers
Act 2000, is expressly disapplied by section 18(1)(e) in proceedings before SIAC. SIAC must give
written reasons for its decision, but insofar as it cannot do so without disclosing information which it

73
would be contrary to the public interest to disclose, it must issue a separate decision which will be
served only on the Secretary of State and the special advocate (rule 47).
The appellants and the proceedings
8. Of the 10 appellants now before the House, all save 2 were certified and detained in December
2001. The two exceptions are B and H, certified and detained in February and April 2002 respectively.
Each of them appealed against his certification under section 25. Ajouaou and F voluntarily left the
United Kingdom, for Morocco and France respectively, in December 2001 and March 2002, and their
certificates were revoked following their departure. C’s certificate was revoked on 31 January 2005
and D’s on 20 September 2004. Abu Rideh was transferred to Broadmoor Hospital under sections 48
and 49 of the Mental Health Act 1983 in July 2002. Conditions for his release on bail were set by
SIAC on 11 March 2005, and on the following day his certificate was revoked and a control order
(currently the subject of an application for judicial review) was made under the Prevention of
Terrorism Act 2005, enacted to replace Part 4 of the 2001 Act. Events followed a similar pattern in the
cases of E, A and H, save that none was transferred to Broadmoor and notice of intention to deport
(currently the subject of challenge) was given to A and H in August 2005, since which date they have
been detained. The control orders made in their cases were discharged. B’s case followed a similar
course to A’s, save that he was transferred to Broadmoor under sections 48 and 49 of the 1983 Act in
September 2005. In the case of G, bail conditions were set by SIAC in April 2004 and revised on 10
March 2005. His certificate was revoked and a control order made under the 2005 Act on 12 March
2005. He was given notice of intention to deport (which he is challenging) on 11 August 2005, and he
has since been detained. His control order was discharged.
9. The appellants’ appeals to SIAC under section 25 of the 2001 Act were heard in groups between
May and July 2003. During these hearings argument and evidence were directed both to general issues
relevant to all or most of the appeals and to specific issues relevant to individual cases. SIAC heard
open evidence when the appellants and their legal representatives were present and closed evidence
when they were excluded but special advocates were present. On 29 October 2003 judgments were
given dismissing all the appeals. There were open judgments on the general and the specific issues,
and there were also closed judgments. On the question central to these appeals to the House, raised in
its present form when the proceedings before it were well advanced, SIAC gave an affirmative answer:
the fact that evidence had, or might have been, procured by torture inflicted by foreign officials
without the complicity of the British authorities was relevant to the weight of the evidence but did not
render it legally inadmissible. In lengthy judgments given on 11 August 2004, a majority of the Court
of Appeal (Pill and Laws LJJ, Neuberger LJ in part dissenting) upheld this decision: [2004] EWCA
Civ 1123, [2005] 1 WLR 414. Despite the repeal of Part 4 of the 2001 Act by the 2005 Act, the
appellants’ right of appeal to the House against the Court of Appeal’s decision under section 7 of the
1997 Act is preserved by section 16(4) of the Prevention of Terrorism Act 2005, and no question now
arises as to the competency of any of these appeals.

THE COMMON LAW

10. The appellants submit that the common law forbids the admission of evidence obtained by the
infliction of torture, and does so whether the product is a confession by a suspect or a defendant and
irrespective of where, by whom or on whose authority the torture was inflicted. 11. It is, I think, clear
that from its very earliest days the common law of England set its face firmly against the use of
torture. Its rejection of this practice was indeed hailed as a distinguishing feature of the common law,
the subject of proud claims by English jurists such as Sir John Fortescue (De Laudibus Legum
Angliae, c. 1460-1470, ed S.B. Chrimes, (1942), Chap 22, pp 47-53), Sir Thomas Smith (De
Republica Anglorum, ed L Alston, 1906, book 2, chap 24, pp 104-107), Sir Edward Coke (Institutes of

74
the Laws of England (1644), Part III, Chap 2, pp 34- 36). Sir William Blackstone (Commentaries on
the Laws of England, (1769) vol IV, chap 25, pp 320-321), and Sir James Stephen (A History of the
Criminal Law of England, 1883, vol 1, p 222). That reliance was placed on sources of doubtful
validity, such as chapter 39 of Magna -6- Carta 1215 and Felton’s Case as reported by Rushworth
(Rushworth’s Collections, vol (i), p 638) (see D. Jardine, A Reading on the Use of Torture in the
Criminal Law of England Previously to the Commonwealth, 1837, pp 10-12, 60-62) did not weaken
the strength of received opinion. The English rejection of torture was also the subject of admiring
comment by foreign authorities such as Beccaria (An Essay on Crimes and Punishments, 1764, Chap
XVI) and Voltaire (Commentary on Beccaria’s Crimes and Punishments, 1766, Chap XII). This
rejection was contrasted with the practice prevalent in the states of continental Europe who, seeking to
discharge the strict standards of proof required by the Roman-canon models they had adopted, came
routinely to rely on confessions procured by the infliction of torture: see A L Lowell, “The Judicial
Use of Torture” (1897) 11 Harvard L Rev 220-233, 290-300; J Langbein, Torture and the Law of
Proof: Europe and England in the Ancien Regime (1977); D. Hope, “Torture” [2004] 53 ICLQ 807 at
pp 810-811. In rejecting the use of torture, whether applied to potential defendants or potential
witnesses, the common law was moved by the cruelty of the practice as applied to those not convicted
of crime, by the inherent unreliability of confessions or evidence so procured and by the belief that it
degraded all those who lent themselves to the practice.
12. Despite this common law prohibition, it is clear from the historical record that torture was
practised in England in the 16th and early 17th centuries. But this took place pursuant to warrants
issued by the Council or the Crown, largely (but not exclusively) in relation to alleged offences against
the state, in exercise of the Royal prerogative: see Jardine, op cit.; Lowell, op cit., pp 290-300). Thus
the exercise of this royal prerogative power came to be an important issue in the struggle between the
Crown and the parliamentary common lawyers which preceded and culminated in the English civil
war. By the common lawyers torture was regarded as (in Jardine’s words: op cit, pp 6 and 12) “totally
repugnant to the fundamental principles of English law” and “repugnant to reason, justice, and
humanity.” One of the first acts of the Long Parliament in 1640 was, accordingly, to abolish the Court
of Star Chamber, where torture evidence had been received, and in that year the last torture warrant in
our history was issued. Half a century later, Scotland followed the English example, and in 1708, in
one of the earliest enactments of the Westminster Parliament after the Act of Union in 1707, torture in
Scotland was formally prohibited. The history is well summarised by Sir William Holdsworth (A
History of English Law, vol 5, 3rd ed (1945), pp 194-195, footnotes omitted): -7- “We have seen that
the use of torture, though illegal by the common law, was justified by virtue of the extraordinary
power of the crown which could, in times of emergency, override the common law. We shall see that
Coke in the earlier part of his career admitted the existence of this extraordinary power. He therefore
saw no objection to the use of torture thus authorized. But we shall see that his views as to the
existence of this extraordinary power changed, when the constitutional controversies of the
seventeenth century had made it clear that the existence of any extraordinary power in the crown was
incompatible with the liberty of the subject. It is not surprising therefore, that, in his later works, he
states broadly that all torture is illegal. It always had been illegal by the common law, and the
authority under which it had been supposed to be legalized he now denied. When we consider the
revolting brutality of the continental criminal procedure, when we remember that this brutality was
sometimes practised in England by the authority of the extraordinary power of the crown, we cannot
but agree that this single result of the rejection of any authority other than that of the common law is
almost the most valuable of the many consequences of that rejection. Torture was not indeed practised
so systematically in England as on the continent; but the fact that it was possible to have recourse to it,
the fact that the most powerful court in the land sanctioned it, was bound sooner or later to have a
demoralising effect upon all those who had prisoners in their power. Once torture has become

75
acclimatized in a legal system it spreads like an infectious disease. It saves the labour of investigation.
It hardens and brutalizes those who have become accustomed to use it.” As Jardine put in (op. cit., p
13): “As far as authority goes, therefore, the crimes of murder and robbery are not more distinctly
forbidden by our criminal code than the application of the torture to witnesses or accused persons is
condemned by the oracles of the Common law.” This condemnation is more aptly categorised as a
constitutional principle than as a rule of evidence.
13. Since there has been no lawfully sanctioned torture in England since 1640, and the rule that
unsworn statements made out of court are inadmissible in court was well-established by at latest the
beginning of the 19th century (Cross & Tapper on Evidence, 10th edn (2004), p 582), there is an
unsurprising paucity of English judicial authority on this subject. In Pearse v Pearse (1846) 1 De G &
Sm 12, 28-29, 63 ER 950, 957, Knight Bruce V-C observed: “The discovery and vindication and
establishment of truth are main purposes certainly of the existence of Courts of Justice; still, for the
obtaining of these objects, which, however valuable and important, cannot be usefully pursued without
moderation, cannot be either usefully or creditably pursued unfairly or gained by unfair means, not
every channel is or ought to be open to them. The practical inefficacy of torture is not, I suppose, the
most weighty objection to that mode of examination . . . Truth, like all other good things, may be
loved unwisely - may be pursued too keenly - may cost too much . . .” That was not a case involving
any allegation of torture. Such an allegation was however made in R (Saifi) v Governor of Brixton
Prison [2001] 1 WLR 1134 where the applicant for habeas corpus resisted extradition to India on the
ground, among others, that the prosecution relied on a statement obtained by torture and since
retracted. The Queen’s Bench Divisional Court (Rose LJ and Newman J) accepted the magistrate’s
judgment that fairness did not call for exclusion of the statement, but was clear (para 60 of the
judgment) that the common law and domestic statute law (section 78 of the Police and Criminal
Evidence Act 1984) gave effect to the intent of article 15 of the International Convention against
Torture and other Cruel, Inhuman or Degrading Treatment or Punishment 1984 (1990, Cm 1775), “the
Torture Convention”, to which more detailed reference is made below.
Involuntary confessions
14. The appellants relied, by way of partial analogy, on the familiar principle that evidence may not be
given by a prosecutor in English criminal proceedings of a confession made by a defendant, if it is
challenged, unless the prosecution proves beyond reasonable doubt that the confession had not been
obtained by oppression of the person who made it or in consequence of anything said or done which
was likely, in -9- the circumstances existing at the time, to render unreliable any confession which
might be made by him in consequence thereof. This rule is now found in section 76 of the Police and
Criminal Evidence Act 1984, but enacts a rule established at common law and expressed in such
decisions as Ibrahim v The King [1914] AC 599, 609-610, R v Harz and Power [1967] AC 760, 817,
and Lam Chi-ming v The Queen [1991] 2 AC 212, 220.
15. Plainly this rule provides an inexact analogy with evidence obtained by torture. It applies only to
confessions by defendants, and it provides for exclusion on grounds very much wider than torture, or
even inhuman or degrading treatment. But it is in my opinion of significance that the common law
(despite suggestions to that effect by Parke B and Lord Campbell CJ in R v Baldry (1852) 2 Den 430,
445, 446-447, 169 ER 568, 574, 575, and by the Privy Council, in judgments delivered by Lord
Sumner, in Ibrahim v The King [1914] AC 599, 610 and Lord Hailsham of St Marylebone in Director
of Public Prosecutions v Ping Lin [1976] AC 574, 599-600) has refused to accept that oppression or
inducement should go to the weight rather than the admissibility of the confession. The common law
has insisted on an exclusionary rule. See, for a clear affirmation of the rule, Wong Kam-ming v The
Queen [1980] AC 247.
16. In R v Warickshall (1783) 1 Leach 263, 168 ER 234, this rule was justified on the ground that
involuntary statements are inherently unreliable. That justification is, however, inconsistent with the

76
principle which the case established, that while an involuntary statement is inadmissible real evidence
which comes to light as a result of such a statement is not. Two points are noteworthy. First, there can
ordinarily be no surer proof of the reliability of an involuntary statement than the finding of real
evidence as a direct result of it, as was so in Warickshall’s case itself, but that has never been treated
as undermining the rule. Secondly, there is an obvious anomaly in treating an involuntary statement as
inadmissible while treating as admissible evidence which would never have come to light but for the
involuntary statement. But this is an anomaly which the English common law has accepted, no doubt
regarding it as a pragmatic compromise between the rejection of the involuntary statement and the
practical desirability of relying on probative evidence which can be adduced without the need to rely
on the involuntary statement.
17. Later decisions make clear that while the inherent unreliability of
involuntary statements is one of the reasons for holding them to be
-10-
inadmissible there are other compelling reasons also. In Lam Chi-ming
v The Queen [1991] 2 AC 212, 220, in a judgment delivered by Lord
Griffiths, the Privy Council summarised the rationale of the
exclusionary rule:
“Their Lordships are of the view that the more recent
English cases established that the rejection of an
improperly obtained confession is not dependent only
upon possible unreliability but also upon the principle that
a man cannot be compelled to incriminate himself and
upon the importance that attaches in a civilised society to
proper behaviour by the police towards those in their
custody.”
Lord Griffiths described the inadmissibility of a confession not proved
to be voluntary as perhaps the most fundamental rule of the English
criminal law. The rationale explained by Lord Griffiths was recently
endorsed by the House in R v Mushtaq [2005] UKHL 25, [2005] 1 WLR
1513, paras 1, 7, 27, 45-46, 71. It is of course true, as counsel for the
Secretary of State points out, that in cases such as these the attention of
the court was directed to the behaviour of the police in the jurisdiction
where the defendant was questioned and the trial was held. This was
almost inevitably so. But it is noteworthy that in jurisdictions where the
law is in general harmony with the English common law reliability has
not been treated as the sole test of admissibility in this context. In
Rochin v California 342 US 165 (1952) Frankfurter J, giving the opinion
of the United States Supreme Court, held that a conviction had been
obtained by “conduct that shocks the conscience” (p 172) and referred to
a “general principle” that “States in their prosecutions respect certain
decencies of civilized conduct” (p 173). He had earlier (p 169) referred
to authority on the due process clause of the United States constitution
which called for judgment whether proceedings “offend those canons of
decency and fairness which express the notions of justice of Englishspeaking
peoples even toward those charged with the most heinous
offenses.” In The People (Attorney General) v O’Brien [1965] IR 142,
150, the Supreme Court of Ireland held, per Kingsmill Moore J, that “to
countenance the use of evidence extracted or discovered by gross

77
personal violence would, in my opinion, involve the State in moral
defilement.” The High Court of Australia, speaking of a discretion to
exclude evidence, observed (per Barwick CJ in R v Ireland (1970) 126
CLR 321, 335), that “Convictions obtained by the aid of unlawful or
unfair acts may be obtained at too high a price.” In R v Oickle [2000] 2
SCR 3, a large majority of the Supreme Court of Canada cited with
approval (para 66) an observation of Lamer J that “What should be
-11-
repressed vigorously is conduct on [the authorities’] part that shocks the
community” and considered (para 69) that while the doctrines of
oppression and inducements were primarily concerned with reliability,
the confessions rule also extended to protect a broader concept of
voluntariness that focused on the protection of the accused’s rights and
fairness in the criminal process.
Abuse of process
18. The appellants submit, in reliance on common law principles,
that the obtaining of evidence by the infliction of torture is so grave a
breach of international law, human rights and the rule of law that any
court degrades itself and the administration of justice by admitting it. If,
therefore, it appears that a confession or evidence may have been
procured by torture, the court must exercise its discretion to reject such
evidence as an abuse of its process.
19. In support of this contention the appellants rely on four recent
English authorities. The first of these is R v Horseferry Road
Magistrates’ Court, Ex p Bennett [1994] 1 AC 42. This case was
decided on the factual premise that the applicant had been abducted
from South Africa and brought to this country in gross breach of his
rights and the law of South Africa, at the behest of the British
authorities, to stand trial here, and on the legal premise that a fair trial
could be held. The issue, accordingly, was whether the unlawful
abduction of the applicant was an abuse of the court’s process to which
it should respond by staying the prosecution. The House held, by a
majority, that it was. The principle laid down most clearly appears in
the opinion of Lord Griffiths at pp 61-62:
“. . . In the present case there is no suggestion that the
appellant cannot have a fair trial, nor could it be suggested
that it would have been unfair to try him if he had been
returned to this country through extradition procedures. If
the court is to have the power to interfere with the
prosecution in the present circumstances it must be
because the judiciary accept a responsibility for the
maintenance of the rule of law that embraces a willingness
to oversee executive action and to refuse to countenance
behaviour that threatens either basic human rights or the
rule of law.
-12-
My Lords, I have no doubt that the judiciary should accept
this responsibility in the field of criminal law. . . .”

78
Counsel for the Secretary of State points out that the members of the
majority attached particular significance to the involvement of the
British authorities in the unlawful conduct complained of, and this is
certainly so: see the opinion of Lord Griffiths at p 62F, Lord Bridge of
Harwich at pp 64G and 67G and Lord Lowry at pp 73G, 76F and 77D.
But the appellants point to the germ of a wider principle. Thus Lord
Lowry (p 74G) understood the court’s discretion to stay proceedings as
an abuse of process to be exercisable where either a fair trial is
impossible or “it offends the court’s sense of justice and propriety to be
asked to try the accused in the circumstances of a particular case.” He
opined (p 76C):
“that the court, in order to protect its own process from
being degraded and misused, must have the power to stay
proceedings which have come before it and have only
been made possible by acts which offend the court’s
conscience as being contrary to the rule of law. Those acts
by providing a morally unacceptable foundation for the
exercise of jurisdiction over the suspect taint the proposed
trial and, if tolerated, will mean that the court’s process
has been abused.”
Lord Lowry’s opinion did not earn the concurrence of any other member
of the House, but the appellants contend that this wider principle is
applicable in the extreme case of evidence procured by torture. In
United States v Toscanino 500 F 2d 267 (1974) the US Court of Appeals
reached a decision very similar to Bennett.
20. In R v Latif [1996] 1 WLR 104 the executive misconduct
complained of was much less gross than in Bennett, and the outcome
was different. Speaking for the House, Lord Steyn (at pp 112-113)
acknowledged a judicial discretion to stay proceedings as an abuse if
they would “amount to an affront to the public conscience” and where
“it would be contrary to the public interest in the integrity of the
criminal justice system that a trial should take place.” In that case the
conduct complained of was not so unworthy or shameful that it was an
affront to the public conscience to allow the prosecution to proceed.
-13-
21. The premises of the Court of Appeal’s decision in R v Mullen
[2000] QB 520 were similar to those in Bennett, save that a fair trial had
already taken place and Mullen had already been convicted of very
serious terrorist offences, and sentenced to 30 years’ imprisonment,
before he was alerted to the misconduct surrounding his abduction from
Zimbabwe. Despite the fairness of the trial, his conviction was quashed.
Giving the reserved judgment of the court, Rose LJ said (at pp 535-536):
“This court recognises the immense degree of public
revulsion which has, quite properly, attached to the
activities of those who have assisted and furthered the
violent operations of the I.R.A. and other terrorist
organisations. In the discretionary exercise, great weight
must therefore be attached to the nature of the offence

79
involved in this case. Against that, however, the conduct
of the security services and police in procuring the
unlawful deportation of the defendant in the manner which
has been described represents, in the view of this court, a
blatant and extremely serious failure to adhere to the rule
of law with regard to the production of a defendant for
prosecution in the English courts. The need to discourage
such conduct on the part of those who are responsible for
criminal prosecutions is a matter of public policy to which,
as appears from R v Horseferry Road Magistrates’ Court,
Ex p Bennett [1994] 1 AC 42 and R v Latif [1996] 1 WLR
104, very considerable weight must be attached.”
22. The fourth authority relied on for its statements of principle was
R v Looseley, Attorney General’s Reference (No 3 of 2000) [2001]
UKHL 53, [2001] 1 WLR 2060, which concerned cases of alleged
entrapment. At the outset of his opinion (para 1) my noble and learned
friend Lord Nicholls of Birkenhead declared that:
“every court has an inherent power and duty to prevent
abuse of its process. This is a fundamental principle of the
rule of law. By recourse to this principle courts ensure
that executive agents of the state do not misuse the
coercive, law enforcement functions of the courts and
thereby oppress citizens of the state.”
A stay is granted in a case of entrapment not to discipline the police
(para 17) but because it is improper for there to be a prosecution at all
-14-
for the relevant offence, having regard to the state’s involvement in the
circumstances in which it was committed. To prosecute in a case where
the state has procured the commission of the crime is (para 19)
“unacceptable and improper” and “an affront to the public conscience.”
Such a prosecution would not be fair in the broad sense of the word. My
noble and learned friend Lord Hoffmann, having referred to Canadian
authority and to Bennett, accepted Lord Griffiths’ description of the
power to stay in the case of behaviour which threatened basic human
rights or the rule of law as (para 40) “a jurisdiction to prevent abuse of
executive power”.
THE EUROPEAN CONVENTION ON HUMAN RIGHTS
23. If, contrary to their submission (and to the opinion of the
Divisional Court in R (Saifi) v Governor of Brixton Prison: see para 13
above) the common law and section 78 of the 1984 Act are not, without
more, enough to require rejection of evidence which has or may have
been procured by torture, whether or not with the complicity of the
British authorities, the appellants submit that the European Convention
compels that conclusion.
24. It is plain that SIAC (and, for that matter, the Secretary of State)
is a public authority within the meaning of section 6 of the Human
Rights Act 1998 and so forbidden to act incompatibly with a Convention
right. One such right, guaranteed by article 3, is not to be subjected to

80
torture or to inhuman or degrading treatment. This absolute, nonderogable
prohibition has been said (Soering v United Kingdom (1989)
11 EHRR 439, para 88) to enshrine “one of the fundamental values of
the democratic societies making up the Council of Europe”. The
European Court has used such language on many occasions (Aydin v
Turkey (1997) 25 EHRR 251, para 81).
25. Article 6 of the Convention guarantees the right to a fair trial.
Different views have in the past been expressed on whether, for
purposes of article 6, the proceedings before SIAC are to be regarded as
civil or criminal. Rather than pursue this debate the parties are agreed
that the appellants’ challenge to their detention pursuant to the Secretary
of State’s certification in any event falls within article 5(4). That
provision entitles anyone deprived of his liberty by arrest or detention to
take proceedings by which the lawfulness of his detention shall be
decided speedily by a court and his release ordered if the detention is not
lawful. It is well-established that such proceedings must satisfy the
-15-
basic requirements of a fair trial: Garcia Alva v Germany (2001) 37
EHRR 335; R (West) v Parole Board, R (Smith) v Parole Board (No 2)
[2005] UKHL 1, [2005] 1 WLR 350. Sensibly, therefore, the parties are
agreed that the applicability of article 6 should be left open and the issue
resolved on the premise that article 5(4) applies.
26. The Secretary of State submits that under the Convention the
admissibility of evidence is a matter left to be decided under national
law; that under the relevant national law, namely, the 2001 Act and the
Rules, the evidence which the Secretary of State seeks to adduce is
admissible before SIAC; and that accordingly the admission of this
evidence cannot be said to undermine the fairness of the proceedings. I
shall consider the effect of the statutory scheme in more detail below.
The first of these propositions is, however, only half true. It is correct
that the European Court of Human Rights has consistently declined to
articulate evidential rules to be applied in all member states and has
preferred to leave such rules to be governed by national law: see, for
example, Schenk v Switzerland (1988) 13 EHRR 242, para 46;
Ferrantelli and Santangelo v Italy (1996) 23 EHRR 288, para 48; Khan
v United Kingdom (2000) 31 EHRR 1016, para 34. It has done so even
where, as in Khan, evidence was acknowledged to have been obtained
unlawfully and in breach of another article of the Convention. But in
these cases and others the court has also insisted on its responsibility to
ensure that the proceedings, viewed overall on the particular facts, have
been fair, and it has recognised that the way in which evidence has been
obtained or used may be such as to render the proceedings unfair. Such
was its conclusion in Saunders v United Kingdom (1996) 23 EHRR 313,
a case of compulsory questioning, and in Teixeira de Castro v Portugal
(1998) 28 EHRR 101, para 39, a case of entrapment. A similar view
would have been taken by the Commission in the much earlier case of
Austria v Italy (1963) 6 YB 740, 784, had it concluded that the victims
whom Austria represented had been subjected to maltreatment with the

81
aim of extracting confessions. But the Commission observed that article
6(2) could only be regarded as being violated if the court subsequently
accepted as evidence any admissions extorted in this manner. This was
a point made by my noble and learned friend Lord Hoffmann in the
much more recent devolution case of Montgomery v H M Advocate,
Coulter v H M Advocate [2003] 1 AC 641, 649, when he observed:
“Of course events before the trial may create the
conditions for an unfair determination of the charge. For
example, an accused who is convicted on evidence
obtained from him by torture has not had a fair trial. But
the breach of article 6(1) lies not in the use of torture
-16-
(which is, separately, a breach of article 3) but in the
reception of the evidence by the court for the purposes of
determining the charge. If the evidence had been rejected,
there would still have been a breach of article 3 but no
breach of article 6(1).”
Lord Hoffmann, in R v Governor of Brixton Prison, Ex p Levin [1997]
AC 741, 748, did not exclude the possibility (he did not have to decide)
that evidence might be rejected in extradition proceedings if, though
technically admissible, it had been obtained in a way which outraged
civilised values. Such was said to be the case in R (Ramda) v Secretary
of State for the Home Department [2002] EWHC 1278 (Admin),
unreported, 27 June 2002, where the applicant resisted extradition to
France on the ground that the evidence which would be relied on against
him at trial had been obtained by torture and that he would be unable to
resist its admission. The Queen’s Bench Divisional Court concluded
(para 22) that if these points were made out, his trial would not be fair
and the Secretary of State would be effectively bound to refuse to
extradite him. In the very recent case of Mamatkulov and Askarov v
Turkey (App Nos 46827/99 and 46951/99, unreported, 4 February 2005)
Judges Bratza, Bonello and Hedigan delivered a joint partly dissenting
opinion, in the course of which they held i n paras 15-17:
“15. As in the case of the risk of treatment proscribed by
Article 3 of the Convention, the risk of a flagrant denial of
justice in the receiving State for the purposes of Article 6
must be assessed primarily by reference to the facts which
were known or should have been known by the respondent
State at the time of the extradition.
16. The majority of the Court acknowledge that, in the
light of the information available, there ‘may have been
reasons for doubting at the time’ that the applicants would
receive a fair trial in Uzbekistan (judgment, § 91).
However, they conclude that there is insufficient evidence
to show that any possible irregularities in the trial were
liable to constitute a flagrant denial of justice within the
meaning of the Court’s Soering judgment.
17. We consider, on the contrary, that on the material

82
available at the relevant time there were substantial
grounds not only for doubting that the applicants would
receive a fair trial but for concluding that they ran a real
risk of suffering a flagrant denial of justice. The Amnesty
International briefing document afforded, in our view,
credible grounds for believing that self-incriminating
-17-
evidence extracted by torture was routinely used to secure
guilty verdicts and that suspects were very frequently
denied access to a lawyer of their choice, lawyers often
being given access to their client by law enforcement
officials after the suspect had been held in custody for
several days, when the risk of torture was at its greatest.
In addition, it was found that in many cases law
enforcement officials would only grant access to a lawyer
after the suspect had signed a confession and that meetings
between lawyers and clients, once granted, were generally
infrequent, defence lawyers rarely being allowed to be
present at all stages of the investigation.”
The approach of these judges is consistent with the even more recent
decision of the Court in Harutyunyan v Armenia (App No 36549/03,
unreported, 5 July 2005) where in paras 2(b) and (f) the Court ruled:
“(b) As to the complaint about the coercion and the
subsequent use in court of the applicant’s confession
statement, the Court considers that it cannot, on the basis
of the file, determine the admissibility of this part of the
application and that it is therefore necessary, in accordance
with Rule 54 § 2 (b) of the Rules of the Court, to give
notice of this complaint to the respondent Government.
(f) As to the complaint about the use in court of
witness statements obtained under torture, the Court
considers that it cannot, on the basis of the file, determine
the admissibility of this part of the application and that it is
therefore necessary, in accordance with Rule 54 § 2 (b) of
the Rules of the Court, to give notice of this complaint to
the respondent Government.”
Had the Court found that the complaints of coercion and torture
appeared to be substantiated, a finding that article 6(1) had been violated
would, in my opinion, have been inevitable. As it was, the Court did not
rule that these complaints were inadmissible. Nor did it dismiss them.
It adjourned examination of the applicant’s complaints concerning the
alleged violation of his right to silence and the admission in court of
evidence obtained under torture.
-18-
PUBLIC INTERNATIONAL LAW
27. The appellants’ submission has a further, more international,
dimension. They accept, as they must, that a treaty, even if ratified by
the United Kingdom, has no binding force in the domestic law of this

83
country unless it is given effect by statute or expresses principles of
customary international law: J H Rayner (Mincing Lane) Ltd v
Department of Trade and Industry [1990] 2 AC 418; R v Secretary of
State for the Home Department, Ex p Brind [1991] 1 AC 696; R v Lyons
[2002] UKHL 44, [2003] 1 AC 976. But they rely on the wellestablished
principle that the words of a United Kingdom statute, passed
after the date of a treaty and dealing with the same subject matter, are to
be construed, if they are reasonably capable of bearing such a meaning,
as intended to carry out the treaty obligation and not to be inconsistent
with it: Garland v British Rail Engineering Ltd [1983] 2 AC 751, 771.
The courts are obliged under section 2 of the 1998 Act to take
Strasbourg jurisprudence into account in connection with a Convention
right, their obligation under section 3 is to interpret and give effect to
primary and subordinate legislation in a way which is compatible with
Convention rights so far as possible to do so and it is their duty under
section 6 not to act incompatibly with a Convention right. If, and to the
extent that, development of the common law is called for, such
development should ordinarily be in harmony with the United
Kingdom’s international obligations and not antithetical to them. I do
not understand these principles to be contentious.
28. The appellants’ argument may, I think, be fairly summarised as
involving the following steps:
(1) The European Convention is not to be interpreted in a vacuum, but
taking account of other international obligations to which member
states are subject, as the European Court has in practice done.
(2) The prohibition of torture enjoys the highest normative force
recognised by international law.
(3) The international prohibition of torture requires states not merely to
refrain from authorising or conniving at torture but also to suppress
and discourage the practice of torture and not to condone it.
(4) Article 15 of the Torture Convention requires the exclusion of
statements made as a result of torture as evidence in any
proceedings.
(5) Court decisions in many countries have given effect directly or
indirectly to article 15 of the Torture Convention.
-19-
(6) The rationale of the exclusionary rule in article 15 is found not only
in the general unreliability of evidence procured by torture but also
in its offensiveness to civilised values and its degrading effect on
the administration of justice.
(7) Measures directed to counter the grave dangers of international
terrorism may not be permitted to undermine the international
prohibition of torture.
It is necessary to examine these propositions in a little detail.
(1) Interpretation of the Convention in a wider international context.
29. Article 31 of the Vienna Convention on the Law of Treaties,
reflecting principles of customary international law, provides in article
31(3)(c) that in interpreting a treaty there shall be taken into account,

84
together with the context, any relevant rules of international law
applicable in the relations between the parties. The European Court has
recognised this principle (Golder v United Kingdom (1975) 1 EHRR
524, para 29, HN v Poland (Application No 77710/01, 13 September
2005, unreported, para 75)), and in Al-Adsani v United Kingdom (2001)
34 EHRR 273, para 55, it said (footnotes omitted):
“55. The Court must next assess whether the restriction
was proportionate to the aim pursued. It recalls that the
Convention has to be interpreted in the light of the rules
set out in the Vienna Convention of 23 May 1969 on the
Law of Treaties, and that Article 31(3)(c) of that treaty
indicates that account is to be taken of ‘any relevant rules
of international law applicable in the relations between the
parties’. The Convention, in including Article 6, cannot
be interpreted in a vacuum. The Court must be mindful of
the Convention’s special character as a human rights
treaty, and it must also take the relevant rules of
international law into account. The Convention should so
far as possible be interpreted in harmony with other rules
of international law of which it forms part, including those
relating to the grant of State immunity.”
The Court has in its decisions invoked a wide range of international
instruments, including the United Nations Convention on the Rights of
the Child 1989 and the Beijing Rules (V v United Kingdom (1999) 30
-20-
EHRR 121, paras 76-77), the Council of Europe Standard Minimum
Rules for the Treatment of Prisoners (S v Switzerland (1991) 14 EHRR
670, para 48) and the 1975 Declaration referred to in para 31 below
(Ireland v United Kingdom (1978) 2 EHRR 25, para 167). More
pertinently to these appeals, the Court has repeatedly invoked the
provisions of the Torture Convention: see, for example, Aydin v Turkey
(1997) 25 EHRR 251, para 103; Selmouni v France (1999) 29 EHRR
403, para 97. In Soering v United Kingdom (1989) 11 EHRR 439, para
88, the Court said (footnotes omitted):
“Article 3 makes no provision for exceptions and no
derogation from it is permissible under Article 15 in time
of war or other national emergency. This absolute
prohibition on torture and on 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

85
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 ‘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
-21-
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.”
(2) The international prohibition of torture.
30. The preamble to the United Nations Charter (1945) recorded the
determination of member states to reaffirm their faith in fundamental
human rights and the dignity and worth of the human person and to
establish conditions under which justice and respect for the obligations
arising from treaties and other sources of international law can be
maintained. The Charter was succeeded by the Universal Declaration of
Human Rights 1948, the European Convention 1950 and the
International Covenant on Civil and Political Rights 1966, all of which
(in articles 5, 3 and 7 respectively, in very similar language) provided
that no one should be subjected to torture or inhuman or degrading
treatment.
31. On 9 December 1975 the General Assembly of the United
Nations, without a vote, adopted Resolution 3452 (XXX), a Declaration
on the Protection of All Persons from Being Subjected to Torture and
Other Cruel, Inhuman or Degrading Treatment or Punishment. This

86
included (in article 1) a definition of torture as follows:
“Article 1
1. For the purpose of this Declaration, torture means
any act by which severe pain or suffering, whether
physical or mental, is intentionally inflicted by or at
the instigation of a public official on a person for
such purposes as obtaining from him or a third
person information or confession, punishing him
for an act he has committed or is suspected of
having committed, or intimidating him or other
persons. It does not include pain or suffering
arising only from, inherent in or incidental to,
-22-
lawful sanctions to the extent consistent with the
Standard Minimum Rules for the Treatment of
Prisoners.
2. Torture constitutes an aggravated and deliberate
form of cruel, inhuman or degrading treatment or
punishment.”
Articles 2-4 provided as follows:
“Article 2
Any act of torture or other cruel, inhuman or degrading
treatment or punishment is an offence to human dignity
and shall be condemned as a denial of the purposes of the
Charter of the United Nations and as a violation of the
human rights and fundamental freedoms proclaimed in the
Universal Declaration of Human Rights.
Article 3
No State may permit or tolerate torture or other cruel,
inhuman or degrading treatment or punishment.
Exceptional circumstances such as a state of war or a
threat of war, internal political instability or any other
public emergency may not be invoked as a justification of
torture or other cruel, inhuman or degrading treatment or
punishment.
Article 4
Each State shall, in accordance with the provisions of this
Declaration, take effective measures to prevent torture and
other cruel, inhuman or degrading treatment or
punishment from being practised within its jurisdiction.”
Action was then taken to prepare a convention. This action culminated
in the Torture Convention, which came into force on 26 June 1987. All
member states of the Council of Europe are members with the exception
of Moldova, Andorra and San Marino, the last two of which have been
signed but not yet ratified.
32. The Torture Convention contained, in article 1, a definition of
torture:
-23-

87
“Article 1
1. For the purposes of this Convention, ‘torture’ means
any act by which severe pain or suffering, whether
physical or mental, is intentionally inflicted on a
person for such purposes as obtaining from him or a
third person information or a confession, punishing
him for an act he or a third person has committed or is
suspected of having committed, or intimidating or
coercing him or a third person, or for any reason based
on discrimination of any kind, when such pain or
suffering is inflicted by or at the instigation of or with
the consent or acquiescence of a public official or
other person acting in an official capacity. It does not
include pain or suffering arising only from, inherent in
or incidental to lawful sanctions.
2. This article is without prejudice to any international
instrument or national legislation which does or may
contain provisions of wider application.”
It is noteworthy that the torture must be inflicted by or with the
complicity of an official, must be intentional, and covers treatment
inflicted for the purpose of obtaining information or a confession.
Articles 2, 3 and 4 provide:
“Article 2
1. Each State Party shall take effective legislative,
administrative, judicial or other measures to prevent
acts of torture in any territory under its jurisdiction.
2. No exceptional circumstances whatsoever, whether a
state of war or a threat of war, internal political
instability or any other public emergency, may be
invoked as a justification of torture.
3. An order from a superior officer or a public authority
may not be invoked as a justification of torture.
Article 3
1. No State Party shall expel, return (‘refouler’) or
extradite a person to another State where there are
substantial grounds for believing that he would be in
danger of being subjected to torture.
2. For the purpose of determining whether there are such
grounds, the competent authorities shall take into
account all relevant considerations including, where
applicable, the existence in the State concerned of a
-24-
consistent pattern of gross, flagrant or mass violations
of human rights.
Article 4
1. Each State Party shall ensure that all acts of torture are
offences under its criminal law. The same shall apply
to an attempt to commit torture and to an act by any

88
person which constitutes complicity or participation in
torture.
2. Each State Party shall make these offences punishable
by appropriate penalties which take into account their
grave nature.”
33. It is common ground in these proceedings that the international
prohibition of the use of torture enjoys the enhanced status of a jus
cogens or peremptory norm of general international law. For purposes
of the Vienna Convention, a peremptory norm of general international
law is defined in article 53 to mean “a norm accepted and recognized by
the international community of States as a whole as a norm from which
no derogation is permitted and which can be modified only by a
subsequent norm of general international law having the same
character”. In R v Bow Street Metropolitan Stipendiary Magistrate, Ex
p Pinochet Ugarte (No 3) [2000] 1 AC 147, 197-199, the jus cogens
nature of the international crime of torture, the subject of universal
jurisdiction, was recognised. The implications of this finding were fully
and authoritatively explained by the International Criminal Tribunal for
the Former Yugoslavia in Prosecutor v Furundzija [1998] ICTY 3,
10 December 1998 in a passage which, despite its length, calls for
citation (footnotes omitted):
“3. Main Features of the Prohibition Against Torture in
International Law.
147. There exists today universal revulsion against
torture: as a USA Court put it in Filartiga v. Peña-Irala,
‘the torturer has become, like the pirate and the slave
trader before him, hostis humani generis, an enemy of all
mankind’. This revulsion, as well as the importance States
attach to the eradication of torture, has led to the cluster of
treaty and customary rules on torture acquiring a
particularly high status in the international normative
system, a status similar to that of principles such as those
prohibiting genocide, slavery, racial discrimination,
aggression, the acquisition of territory by force and the
forcible suppression of the right of peoples to selfdetermination.
The prohibition against torture exhibits
-25-
three important features, which are probably held in
common with the other general principles protecting
fundamental human rights.
(a) The Prohibition Even Covers Potential Breaches.
148. Firstly, given the importance that the international
community attaches to the protection of individuals from
torture, the prohibition against torture is particularly
stringent and sweeping. States are obliged not only to
prohibit and punish torture, but also to forestall its
occurrence: it is insufficient merely to intervene after the
infliction of torture, when the physical or moral integrity

89
of human beings has already been irremediably harmed.
Consequently, States are bound to put in place all those
measures that may pre-empt the perpetration of torture.
As was authoritatively held by the European Court of
Human Rights in Soering, international law intends to bar
not only actual breaches but also potential breaches of the
prohibition against torture (as well as any inhuman and
degrading treatment). It follows that international rules
prohibit not only torture but also (i) the failure to adopt the
national measures necessary for implementing the
prohibition and (ii) the maintenance in force or passage of
laws which are contrary to the prohibition.
149. Let us consider these two aspects separately.
Normally States, when they undertake international
obligations through treaties or customary rules, adopt all
the legislative and administrative measures necessary for
implementing such obligations. However, subject to
obvious exceptions, failure to pass the required
implementing legislation has only a potential effect: the
wrongful fact occurs only when administrative or judicial
measures are taken which, being contrary to international
rules due to the lack of implementing legislation, generate
State responsibility. By contrast, in the case of torture, the
requirement that States expeditiously institute national
implementing measures is an integral part of the
international obligation to prohibit this practice.
Consequently, States must immediately set in motion all
those procedures and measures that may make it possible,
within their municipal legal system, to forestall any act of
torture or expeditiously put an end to any torture that is
occurring.
150. Another facet of the same legal effect must be
emphasised. Normally, the maintenance or passage of
national legislation inconsistent with international rules
-26-
generates State responsibility and consequently gives rise
to a corresponding claim for cessation and reparation (lato
sensu) only when such legislation is concretely applied.
By contrast, in the case of torture, the mere fact of keeping
in force or passing legislation contrary to the international
prohibition of torture generates international State
responsibility. The value of freedom from torture is so
great that it becomes imperative to preclude any national
legislative act authorising or condoning torture or at any
rate capable of bringing about this effect.
(b) The Prohibition Imposes Obligations Erga Omnes.
151. Furthermore, the prohibition of torture imposes
upon States obligations erga omnes, that is, obligations

90
owed towards all the other members of the international
community, each of which then has a correlative right. In
addition, the violation of such an obligation
simultaneously constitutes a breach of the correlative right
of all members of the international community and gives
rise to a claim for compliance accruing to each and every
member, which then has the right to insist on fulfilment of
the obligation or in any case to call for the breach to be
discontinued.
152. Where there exist international bodies charged with
impartially monitoring compliance with treaty provisions
on torture, these bodies enjoy priority over individual
States in establishing whether a certain State has taken all
the necessary measures to prevent and punish torture and,
if they have not, in calling upon that State to fulfil its
international obligations. The existence of such
international mechanisms makes it possible for
compliance with international law to be ensured in a
neutral and impartial manner.
(c) The Prohibition Has Acquired the Status of Jus
Cogens.
153. While the erga omnes nature just mentioned
appertains to the area of international enforcement (lato
sensu), the other major feature of the principle proscribing
torture relates to the hierarchy of rules in the international
normative order. Because of the importance of the values
it protects, this principle has evolved into a peremptory
norm or jus cogens, that is, a norm that enjoys a higher
rank in the international hierarchy than treaty law and even
‘ordinary’ customary rules. The most conspicuous
consequence of this higher rank is that the principle at
issue cannot be derogated from by States through
-27-
international treaties or local or special customs or even
general customary rules not endowed with the same
normative force.
154. Clearly, the jus cogens nature of the prohibition
against torture articulates the notion that the prohibition
has now become one of the most fundamental standards of
the international community. Furthermore, this
prohibition is designed to produce a deterrent effect, in
that it signals to all members of the international
community and the individuals over whom they wield
authority that the prohibition of torture is an absolute value
from which nobody must deviate.
155. The fact that torture is prohibited by a peremptory
norm of international law has other effects at the interstate
and individual levels. At the inter-state level, it

91
serves to internationally de-legitimise any legislative,
administrative or judicial act authorising torture. It would
be senseless to argue, on the one hand, that on account of
the jus cogens value of the prohibition against torture,
treaties or customary rules providing for torture would be
null and void ab initio, and then be unmindful of a State
say, taking national measures authorising or condoning
torture or absolving its perpetrators through an amnesty
law. If such a situation were to arise, the national
measures, violating the general principle and any relevant
treaty provision, would produce the legal effects discussed
above and in addition would not be accorded international
legal recognition. Proceedings could be initiated by
potential victims if they had locus standi before a
competent international or national judicial body with a
view to asking it to hold the national measure to be
internationally unlawful; or the victim could bring a civil
suit for damage in a foreign court, which would therefore
be asked inter alia to disregard the legal value of the
national authorising act. What is even more important is
that perpetrators of torture acting upon or benefiting from
those national measures may nevertheless be held
criminally responsible for torture, whether in a foreign
State, or in their own State under a subsequent regime. In
short, in spite of possible national authorisation by
legislative or judicial bodies to violate the principle
banning torture, individuals remain bound to comply with
that principle. As the International Military Tribunal at
Nuremberg put it: ‘individuals have international duties
which transcend the national obligations of obedience
imposed by the individual State’.
-28-
156. Furthermore, at the individual level, that is, that of
criminal liability, it would seem that one of the
consequences of the jus cogens character bestowed by the
international community upon the prohibition of torture is
that every State is entitled to investigate, prosecute and
punish or extradite individuals accused of torture, who are
present in a territory under its jurisdiction. Indeed, it
would be inconsistent on the one hand to prohibit torture
to such an extent as to restrict the normally unfettered
treaty-making power of sovereign States, and on the other
hand bar States from prosecuting and punishing those
torturers who have engaged in this odious practice abroad.
This legal basis for States’ universal jurisdiction over
torture bears out and strengthens the legal foundation for
such jurisdiction found by other courts in the inherently
universal character of the crime. It has been held that

92
international crimes being universally condemned
wherever they occur, every State has the right to prosecute
and punish the authors of such crimes. As stated in
general terms by the Supreme Court of Israel in Eichmann,
and echoed by a USA court in Demjanjuk, ‘it is the
universal character of the crimes in question ie.
international crimes which vests in every State the
authority to try and punish those who participated in their
commission’.
157. It would seem that other consequences include the
fact that torture may not be covered by a statute of
limitations, and must not be excluded from extradition
under any political offence exemption.”
There can be few issues on which international legal opinion is more
clear than on the condemnation of torture. Offenders have been
recognised as the “common enemies of mankind” (Demjanjuk v
Petrovsky 612 F Supp 544 (1985), 566, Lord Cooke of Thorndon has
described the right not to be subjected to inhuman treatment as a “right
inherent in the concept of civilisation” (Higgs v Minister of National
Security [2000] 2 AC 228, 260), the Ninth Circuit Court of Appeals has
described the right to be free from torture as “fundamental and
universal” (Siderman de Blake v Argentina 965 F 2d 699 (1992), 717)
and the UN Special Rapporteur on Torture (Mr Peter Koojimans) has
said that “If ever a phenomenon was outlawed unreservedly and
unequivocally it is torture” (Report of the Special Rapporteur on
Torture, E/CN.4/1986/15, para 3).
-29-
(3) The duty of states in relation to torture.
34. As appears from the passage just cited, the jus cogens erga omnes
nature of the prohibition of torture requires member states to do more
than eschew the practice of torture. In Kuwait Airways Corporation v
Iraqi Airways Co (Nos 4 and 5) [2002] UKHL 19, [2002] 2 AC 883,
paras 29, 117, the House refused recognition to conduct which
represented a serious breach of international law. This was, as I
respectfully think, a proper response to the requirements of international
law. In General Comment 20 (1992) on article 7 of the ICCPR, the UN
Human Rights Committee said, in para 8:
“The Committee notes that it is not sufficient for the
implementation of article 7 to prohibit such treatment or
punishment or to make it a crime. States parties should
inform the Committee of the legislative, administrative,
judicial and other measures they take to prevent and
punish acts of torture and cruel, inhuman and degrading
treatment in any territory under their jurisdiction.”
Article 41 of the International Law Commission’s draft articles on
Responsibility of States for internationally wrongful acts (November
2001) requires states to cooperate to bring to an end through lawful
means any serious breach of an obligation under a peremptory norm of

93
general international law. An advisory opinion of the International
Court of Justice on the Legal Consequences of the Construction of a
Wall in the Occupied Palestinian Territory (9 July 2004, General List
No 131), para 159 explained the consequences of the breach found in
that case:
“159. Given the character and the importance of the rights
and obligations involved, the Court is of the view that all
States are under an obligation not to recognize the illegal
situation resulting from the construction of the wall in the
Occupied Palestinian Territory, including in and around
East Jerusalem. They are also under an obligation not to
render aid or assistance in maintaining the situation
created by such construction. It is also for all States, while
respecting the United Nations Charter and international
law, to see to it that any impediment, resulting from the
construction of the wall, to the exercise by the Palestinian
people of its right to self-determination is brought to an
-30-
end. In addition, all the States parties to the Geneva
Convention relative to the Protection of Civilian Persons
in Time of War of 12 August 1949 are under an
obligation, while respecting the United Nations Charter
and international law, to ensure compliance by Israel with
international humanitarian law as embodied in that
Convention.”
There is reason to regard it as a duty of states, save perhaps in limited
and exceptional circumstances, as where immediately necessary to
protect a person from unlawful violence or property from destruction, to
reject the fruits of torture inflicted in breach of international law. As
McNally JA put it in S v Nkomo 1989 (3) ZLR 117, 131:
“It does not seem to me that one can condemn torture
while making use of the mute confession resulting from
torture, because the effect is to encourage torture.”
(4) Article 15 of the Torture Convention.
35. Article 12 of the 1975 Declaration provided:
“Any statement which is established to have been made as
a result of torture or other cruel, inhuman or degrading
treatment or punishment may not be invoked as evidence
against the person concerned or against any other person
in any proceedings.”
Article 15 of the Torture Convention repeats the substance of this
provision, subject to a qualification:
“Each State Party shall ensure that any statement which is
established to have been made as a result of torture shall
not be invoked as evidence in any proceedings, except
against a person accused of torture as evidence that the
statement was made.”
-31-

94
The additional qualification makes plain the blanket nature of this
exclusionary rule. It cannot possibly be read, as counsel for the
Secretary of State submits, as intended to apply only in criminal
proceedings. Nor can it be understood to differentiate between
confessions and accusatory statements, or to apply only where the state
in whose jurisdiction the proceedings are held has inflicted or been
complicit in the torture. It would indeed be remarkable if national
courts, exercising universal jurisdiction, could try a foreign torturer for
acts of torture committed abroad, but could nonetheless receive evidence
obtained by such torture. The matter was succinctly put in the Report by
Mr Alvaro Gil-Robles, the Council of Europe Commissioner for Human
Rights, in his Report on his visit to the United Kingdom in November
2004 (8 June 2005, Comm DH (2005)6):
“torture is torture whoever does it, judicial proceedings are
judicial proceedings, whatever their purpose — the former
can never be admissible in the latter.”
(5) State practice.
36. A Committee against Torture was established under article 17 of
the Torture Convention to monitor compliance by member states. The
Committee has recognised a duty of states, if allegations of torture are
made, to investigate them: PE v France, 19 December 2002,
CAT/C/29/D/193/2001, paras 5.3, 6.3; GK v Switzerland, 12 May 2003,
CAT/C/30/D/219/2002), para 6.10. The clear implication is that the
evidence should have been excluded had the complaint been verified.
37. In Canada, article 15 of the Torture Convention has been
embodied in the criminal code: see India v Singh 108 CCC (3d) 274
(1996), para 20. In France, article 15 has legal effect (French Republic
v Haramboure, Cour de Cassation, Chambre Criminelle, 24 January
1995, No. de pourvoi 94-81254), and extradition to Spain was refused
where allegations that a witness statement had been procured by torture
in Spain was judged not to have been adequately answered (Le
Ministère Public v Irastorza Dorronsoro, Cour d’Appel de Pau, No
238/2003, 16 May 2003). In the Netherlands, it was held by the
Supreme Court to follow from article 3 of the European Convention and
article 7 of the ICCPR that if witness statements had been obtained by
torture they could not be used as evidence: Pereira, 1 October 1996, nr
103.094, para 6.2. In Germany, as in France, article 15 has legal effect:
-32-
El Motassadeq, decision of the Higher Regional Court of Hamburg,
14 June 2005, para 2.
38. In the United States, torture was recognised to be prohibited by
the law of nations even before the Torture Convention was made:
Filartiga v Peña-Irala 630 F 2d 876 (1980). Earlier still, it had been
said to be
“unthinkable that a statement obtained by torture or by
other conduct belonging only in a police state should be
admitted at the government’s behest in order to bolster its
case”: LaFrance v Bohlinger 499 F 2d 29 (1974), para 6.

95
(6) The rationale of the exclusionary rule.
39. In their work on The United Nations Convention against Torture
(1988), p 148, Burgers and Danelius suggest that article 15 of the
Torture Convention is based on two principles:
“The rule laid down in article 15 would seem to be based
on two different considerations. First of all, it is clear that
a statement made under torture is often an unreliable
statement, and it could therefore be contrary to the
principle of ‘fair trial’ to invoke such a statement as
evidence before a court. Even in countries whose court
procedures are based on a free evaluation of all evidence,
it is hardly acceptable that a statement made under torture
should be allowed to play any part in court proceedings.
In the second place, it should be recalled that torture is
often aimed at ensuring evidence in judicial proceedings.
Consequently, if a statement made under torture cannot be
invoked as evidence, an important reason for using torture
is removed, and the prohibition against the use of such
statements as evidence before a court can therefore have
the indirect effect of preventing torture.”
It seems indeed very likely that the unreliability of a statement or
confession procured by torture and a desire to discourage torture by
devaluing its product are two strong reasons why the rule was adopted.
But it also seems likely that the article reflects the wider principle
-33-
expressed in article 69(7) of the Rome Statute of the International
Criminal Court, which has its counterpart in the Rules of Procedure and
Evidence of the International Criminal Tribunals for the Former
Yugoslavia and Rwanda:
“Evidence obtained by means of a violation of this Statute
or internationally recognized human rights shall not be
admissible if:
(a) the violation casts substantial doubt on the
reliability of the evidence; or
(b) the admission of the evidence would be
antithetical to and would seriously damage
the integrity of the proceedings.”
The appellants contend that admission as evidence against a party to
legal proceedings of a confession or an accusatory statement obtained by
inflicting treatment of the severity necessary to fall within article 1 of
the Torture Convention will “shock the community”, infringe that
party’s rights and the fairness of the proceedings (R v Oickle: see para
17 above), shock the judicial conscience (United States v Hensel 509 F
Supp 1364 (1981), p 1372), abuse or degrade the proceedings (United
States v Toscanino 500 F 2d 267 (1974), p 276), and involve the state in
moral defilement (The People (Attorney General) v O’Brien: see para
17 above).
(7) The impact of terrorism

96
40. The European Court has emphasised that article 3 of the
European Convention is an absolute prohibition, not derogable in any
circumstances. In Chahal v United Kingdom (1996) 23 EHRR 413, para
79, it ruled:
“79. Article 3 enshrines one of the most fundamental
values of democratic society. The Court is well aware of
the immense difficulties faced by States in modern times
in protecting their communities from terrorist violence.
However, even in these circumstances, the Convention
prohibits in absolute terms torture or inhuman or
degrading treatment or punishment, irrespective of the
victim’s conduct. Unlike most of the substantive clauses
-34-
of the Convention and of Protocols Nos. 1 and 4, Article 3
makes no provision for exceptions and no derogation from
it is permissible under Article 15 even in the eve nt of a
public emergency threatening the life of the nation.”
That the Torture Convention, including article 15, enjoys the same
absolute quality is plain from the text of article 2, quoted in para 32
above.
41. It is true, as the Secretary of State submits, that States Members
of the United Nations and the Council of Europe have been strongly
urged since 11 September 2001 to cooperate and share information in
order to counter the cruel and destructive evil of terrorism. But these
calls have been coupled with reminders that human rights, and
international and humanitarian law, must not be infringed or
compromised. Thus, while the Council of Europe’s Parliamentary
Assembly recommendation 1534 of 26 September 2001 refers to cooperation
“on the basis of the Council of Europe’s values and legal
instruments”, it also refers to Parliamentary Assembly Resolution 1258,
para 7 of which states:
“These attacks have shown clearly the real face of
terrorism and the need for a new kind of response. This
terrorism does not recognise borders. It is an international
problem to which international solutions must be found
based on a global political approach. The world
community must show that it will not capitulate to
terrorism, but that it will stand more strongly than before
for democratic values, the rule of law and the defence of
human rights and fundamental freedoms.”
The Council of Europe Convention on the Prevention of Terrorism of
16 May 2005, recalling in its preamble
“the need to strengthen the fight against terrorism and
reaffirming that all measures taken to prevent or suppress
terrorist offences have to respect the rule of law and
democratic values, human rights and fundamental
freedoms as well as other provisions of international law,
including, where applicable, international humanitarian

97
law”,
-35-
went on to provide:
“Article 3 – National prevention policies
1 Each Party shall take appropriate measures,
particularly in the field of training of law enforcement
authorities and other bodies, and in the fields of education,
culture, information, media and public awareness raising,
with a view to preventing terrorist offences and their
negative effects while respecting human rights obligations
as set forth in, where applicable to that Party, the
Convention for the Protection of Human Rights and
Fundamental Freedoms, the International Covenant on
Civil and Political Rights, and other obligations under
international law.”
Other similar examples could be given.
42. The United Nations pronouncements are to the same effect. Thus
Security Council resolution 1373 of 28 September 2001 called for cooperation
and exchange of information to prevent terrorist acts, but also
reaffirmed resolution 1269 of 19 October 1999 which called for
observance of the principles of the UN Charter and the norms of
international law, including international humanitarian law. By Security
Council resolution 1566 of 8 October 2004 states were reminded
“that they must ensure that any measures taken to combat
terrorism comply with all their obligations under
international law, and should adopt such measures in
accordance with international law, and in particular
international human rights, refugee and humanitarian
law.”
Again, other similar examples could be given. The General Assembly
has repeatedly made the same point: see, for example, resolution 49/60
of 9 December 1994; resolution 51/210 of 17 December 1996; and
resolution 59/290 of 13 April 2005. The Secretary General of the UN
echoed the same theme in statements of 4 October 2002, 6 March 2003
and 10 March 2005.
-36-
43. The events of 11 September prompted the Committee against
Torture to issue a statement on 22 November 2001
(CAT/C/XXVII/Misc 7) in which it said:
“The Committee against Torture condemns utterly the
terrorist attacks of September 11 and expresses its
profound condolences to the victims, who were nationals
of some 80 countries, including many State parties to the
Convention against Torture and Other Cruel, Inhuman or
Degrading Treatment or Punishment. The Committee is
mindful of the terrible threat to international peace and
security posed by these acts of international terrorism, as
affirmed in Security Council resolution 1368. The

98
Committee also notes that the Security Council in
resolution 1373 identified the need to combat by all
means, in accordance with the Charter of the United
Nations, the threats caused by terrorist acts.
The Committee against Torture reminds State parties to
the Convention of the non-derogable nature of most of the
obligations undertaken by them in ratifying the
Convention.
The obligations contained in Articles 2 (whereby ‘no
exceptional circumstances whatsoever may be invoked as
a justification of torture’), 15 (prohibiting confessions
extorted by torture being admitted in evidence, except
against the torturer), and 16 (prohibiting cruel, inhuman or
degrading treatment or punishment) are three such
provisions and must be observed in all circumstances.
The Committee against Torture is confident that whatever
responses to the threat of international terrorism are
adopted by State parties, such responses will be in
conformity with the obligations undertaken by them in
ratifying the Convention against Torture.”
A statement to similar effect was made by the Committee against
Torture, the Special Rapporteur on Torture, the Chairperson of the 22nd
session of the Board of Trustees of the United Nations Voluntary Fund
for Victims of Torture and the Acting United Nations Commissioner for
Human Rights on 26 June 2004 (CAT Report to the General Assembly,
A/59/44 (2004), para 17). In its Conclusions and Recommendations on
the United Kingdom dated 10 December 2004 (CAT/C/CR/33/3),
having received the United Kingdom’s fourth periodic report, the
Committee welcomed the Secretary of State’s indication that he did not
-37-
intend to rely upon or present evidence where there is a knowledge or
belief that torture has taken place but recommended that this be
appropriately reflected in formal fashion, such as legislative
incorporation or undertaking to Parliament, and that means be provided
whereby an individual could challenge the legality of any evidence
plausibly suspected of having been obtained by torture in any
proceeding.
44. This recommendation followed the judgment of the Court of
Appeal in these appeals. Concern at the effect of that judgment was also
expressed by the International Commission of Jurists on 28 August
2004, which declared that “Evidence obtained by torture, or other means
which constitute a serious violation of human rights against a defendant
or third party, is ne ver admissible and cannot be relied on in any
proceedings,” and by the Council of Europe Commissioner for Human
Rights, Mr Gil-Robles in his Report cited in para 35 above. In a Report
of 9 June 2005 on a visit made to the United Kingdom in March 2004,
the Council of Europe’s Committee for the Prevention of Torture and
Inhuman or Degrading Treatment or Punishment (CPT/Inf (2005) 10),

99
para 31, observed:
“31. During the 2004 visit, several persons whom the
delegation met were very concerned that the SIAC could
apparently take into consideration evidence that might
have been obtained elsewhere by coercion, or even by
torture. Such an approach would contravene universal
principles governing the protection of human rights and
the prohibition of torture and other forms of ill-treatment,
to which the United Kingdom has adhered.”
In Resolution 1433, adopted on 26 April 2005, on the Lawfulness of
Detentions by the United States in Guantanamo Bay, the Parliamentary
Assembly of the Council of Europe called on the United States to cease
the practice of rendition and called on member states to respect their
obligation under article 15 of the Torture Convention.
45. The House has not been referred to any decision, resolution,
agreement or advisory opinion suggesting that a confession or statement
obtained by torture is admissible in legal proceedings if the torture was
inflicted without the participation of the state in whose jurisdiction the
proceedings are held, or that such evidence is admissible in proceedings
related to terrorism.
-38-
THE SECRETARY OF STATE’S CASE
46. While counsel for the Secretary of State questions the effect and
applicability of some of the material on which the appellants rely, he
founds his case above all on the statutory scheme established by Part 4
of the 2001 Act. He builds on the appellants’ acceptance that the
Secretary of State may, when forming the reasonable belief and
suspicion required for certification under section 21, and when acting on
that belief to arrest, search and detain a suspect, act on information
which has or may have been obtained by torture inflicted in a foreign
country without British complicity. That acceptance, he submits,
supports the important and practical need for the security services and
the Secretary of State to obtai n intelligence and evidence from foreign
official sources, some of which (in the less progressive countries) might
dry up if their means of obtaining intelligence and evidence were the
subject of intrusive enquiry. But it would create a mismatch which
Parliament could not have intended if the Secretary of State were able to
rely on material at the certification stage which SIAC could not later
receive. It would, moreover, emasculate the statutory scheme, which is
specifically designed to enable SIAC, constituted as it is, to see all
relevant material, even such ordinarily inadmissible material as may be
obtained on warranted intercepts. This is reflected in rule 44(3) of the
applicable Rules, which dispenses with all rules of evidence, including
any that might otherwise preclude admission of evidence obtained by
torture in the circumstances postulated. This is not a negligible
argument, and a majority of the Court of Appeal broadly accepted it.
There are, however, in my opinion, a number of reasons why it must be
rejected.

100
47. I am prepared to accept (although I understand the interveners
represented by Mr Starmer QC not to do so) that the Secretary of State
does not act unlawfully if he certifies, arrests, searches and detains on
the strength of what I shall for convenience call foreign torture evidence.
But by the same token it is, in my view, questionable whether he would
act unlawfully if he based similar action on intelligence obtained by
officially-authorised British torture. If under such torture a man
revealed the whereabouts of a bomb in the Houses of Parliament, the
authorities could remove the bomb and, if possible, arrest the terrorist
who planted it. There would be a flagrant breach of article 3 for which
the United Kingdom would be answerable, but no breach of article 5(4)
or 6. Yet the Secretary of State accepts that such evidence would be
inadmissible before SIAC. This suggests that there is no
correspondence between the material on which the Secretary of State
may act and that which is admissible in legal proceedings.
-39-
48. This is not an unusual position. It arises whenever the Secretary
of State (or any other public official) relies on information which the
rules of public interest immunity prevent him adducing in evidence:
Makanjuola v Commissioner of Police of the Metropolis [1992] 3 All
ER 617, 623 e to j; R v Chief Constable of West Midlands Police, Ex p
Wiley [1995] 1 AC 274, 295F-297C. It is a situation which arises where
action is based on a warranted interception and there is no dispensation
which permits evidence to be given. This may be seen as an anomaly,
but (like the anomaly to which the rule in R v Warickshall gives rise) it
springs from the tension between practical common sense and the need
to protect the individual against unfair incrimination. The common law
is not intolerant of anomaly.
49. There would be a much greater anomaly if the duty of SIAC,
hearing an appeal under section 25, were to decide whether the
Secretary of State had entertained a reasonable belief and suspicion at
the time of certification. But, as noted above in para 5, SIAC’s duty is
to cancel the certificate if it considers that there “are” no reasonable
grounds for a belief or suspicion of the kind referred to. This plainly
refers to the date of the hearing. The material may by then be different
from that on which the Secretary of State relied. He may have gathered
new and better information; or some of the material on which he had
relied may have been discredited; or he may have withdrawn material
which he was ordered but was unwilling to disclose. SIAC must act on
the information lawfully before it to decide whether there are reasonable
grounds at the time of its decision.
50. I am not impressed by the argument based on the practical
undesirability of upsetting foreign regimes which may resort to torture.
On the approach of the Court of Appeal majority, third party torture
evidence, although legally admissible, must be assessed by SIAC in
order to decide what, if any, weight should be given to it. This is an
exercise which could scarcely be carried out without investigating
whether the evidence had been obtained by torture, and, if so, when, by

101
whom, in what circumstances and for what purpose. Such an
investigation would almost inevitably call for an approach to the regime
which is said to have carried out the torture.
51. The Secretary of State is right to submit that SIAC is a body
designed to enable it to receive and assess a wide range of material,
including material which would not be disclosed to a body lacking its
special characteristics. And it would of course be within the power of a
sovereign Parliament (in breach of international law) to confer power on
-40-
SIAC to receive third party torture evidence. But the English common
law has regarded torture and its fruits with abhorrence for over 500
years, and that abhorrence is now shared by over 140 countries which
have acceded to the Torture Convention. I am startled, even a little
dismayed, at the suggestion (and the acceptance by the Court of Appeal
majority) that this deeply-rooted tradition and an international obligation
solemnly and explicitly undertaken can be overridden by a statute and a
procedural rule which make no mention of torture at all. Counsel for the
Secretary of State acknowledges that during the discussions on Part 4
the subject of torture was never the subject of any thought or any
allusion. The matter is governed by the principle of legality very clearly
explained by my noble and learned friend Lord Hoffmann in R v
Secretary of State for the Home Department, Ex p Simms [2000] 2 AC
115, 131:
“Parliamentary sovereignty means that Parliament can, if
it chooses, legislate contrary to fundamental principles of
human rights. The Human Rights Act 1998 will not
detract from this powe r. The constraints upon its exercise
by Parliament are ultimately political, not legal. But the
principle of legality means that Parliament must squarely
confront what it is doing and accept the political cost.
Fundamental rights cannot be overridden by general or
ambiguous words. This is because there is too great a risk
that the full implications of their unqualified meaning may
have passed unnoticed in the democratic process. In the
absence of express language or necessary implication to
the contrary, the courts therefore presume that even the
most general words were intended to be subject to the
basic rights of the individual. In this way the courts of the
United Kingdom, though acknowledging the sovereignty
of Parliament, apply principles of constitutionality little
different from those which exist in countries where the
power of the legislature is expressly limited by a
constitutional document.”
It trivialises the issue before the House to treat it as an argument about
the law of evidence. The issue is one of constitutional principle,
whether evidence obtained by torturing another human being may
lawfully be admitted against a party to proceedings in a British court,
irrespective of where, or by whom, or on whose authority the torture

102
was inflicted. To that question I would give a very clear negative
answer.
-41-
52. I accept the broad thrust of the appellants’ argument on the
common law. The principles of the common law, standing alone, in my
opinion compel the exclusion of third party torture evidence as
unreliable, unfair, offensive to ordinary standards of humanity and
decency and incompatible with the principles which should animate a
tribunal seeking to administer justice. But the principles of the common
law do not stand alone. Effect must be given to the European
Convention, which itself takes account of the all but universal consensus
embodied in the Torture Convention. The answer to the central question
posed at the outset of this opinion is to be found not in a governmental
policy, which may change, but in law.
Inhuman or degrading treatment
53. The appellants broaden their argument to contend that all the
principles on which they rely apply to inhuman and degrading treatment,
if inflicted by an official with the requisite intention and effect, as to
torture within the Torture Convention definition. It is, of course, true
that article 3 of the European Convention (and the comparable articles
of other human rights instruments) lump torture and inhuman or
degrading treatment together, drawing no distinction between them.
The European Court did, however, draw a distinction between them in
Ireland v United Kingdom (1978) 2 EHRR 25, holding that the conduct
complained of was inhuman or degrading but fell short of torture, and
article 16 of the Torture Convention draws this distinction very
expressly:
“Article 16
1. Each State Party shall undertake to prevent in any
territory under its jurisdiction other acts of cruel,
inhuman or degrading treatment or punishment which
do not amount to torture as defined in article 1, when
such acts are committed by or at the instigation of or
with the consent or acquiescence of a public official or
other person acting in an official capacity. In
particular, the obligations contained in articles 10, 11,
12 and 13 shall apply with the substitution for
references to torture or references to other forms of
cruel, inhuman or degrading treatment or punishment.
2. The provisions of this Convention are without
prejudice to the provisions of any other international
instrument or national law which prohibit cruel,
-42-
inhuman or degrading treatment or punishment or
which relate to extradition or expulsion.”
Ill-treatment falling short of torture may invite exclusion of evidence as
adversely affecting the fairness of a proceeding under section 78 of the
1984 Act, where that section applies. But I do not think the authorities

103
on the Torture Convention justify the assimilation of these two kinds of
abusive conduct. Special rules have always been thought to apply to
torture, and for the present at least must continue to do so. It would, on
the other hand, be wrong to regard as immutable the standard of what
amounts to torture. This is a point made by the European Court in
Selmouni v France (1999) 29 EHRR 403, paras 99-101 (footnotes
omitted):
“99 The acts complained of were such as to arouse in
the applicant feelings of fear, anguish and inferiority
capable of humiliating and debasing him and possibly
breaking his physical and moral resistance. The Court
therefore finds elements which are sufficiently serious to
render such treatment inhuman and degrading. In any
event, the Court reiterates that, in respect of a person
deprived of his liberty, recourse to physical force which
has not been made strictly necessary by his own conduct
diminishes human dignity and is in principle an
infringement of the right set forth in Article 3.
100 In other words, it remains to establish in the instant
case whether the ‘pain or suffering’ inflicted on Mr
Selmouni can be defined as ‘severe’ within the meaning of
Article 1 of the United Nations Convention. The Court
considers that this ‘severity’ is, like the ‘minimum
severity’ required for the application of Article 3, in the
nature of things, relative; it depends on all the
circumstances of the case, such as the duration of the
treatment, its physical or mental effects and, in some
cases, the sex, age and state of health of the victim, etc.
101 The Court has previously examined cases in which
it concluded that there had been treatment which could
only be described as torture. However, having regard to
the fact that the Convention is a ‘living instrument which
must be interpreted in the light of present-day conditions’,
the Court considers that certain acts which were classified
in the past as ‘inhuman and degrading treatment’ as
opposed to ‘torture’ could be classified differently in
future. It takes the view that the increasingly high
-43-
standard being required in the area of the protection of
human rights and fundamental liberties correspondingly
and inevitably requires greater firmness in assessing
breaches of the fundamental values of democratic
societies.”
It may well be that the conduct complained of in Ireland v United
Kingdom, or some of the Category II or III techniques detailed in a J2
memorandum dated 11 October 2002 addressed to the Commander,
Joint Task Force 170 at Guantanamo Bay, Cuba, (see The Torture
Papers: The Road to Abu Ghraib, ed K Greenberg and J Dratel, (2005),

104
pp 227-228), would now be held to fall within the definition in article 1
of the Torture Convention.
The burden of proof
54. The appellants contend that it is for a party seeking to adduce
evidence to establish its admissibility if this is challenged. The
Secretary of State submits that it is for a party seeking to challenge the
admissibility of evidence to make good the factual grounds on which he
bases his challenge. He supports this approach in the present context by
pointing to the reference in article 15 of the Torture Convention to a
statement “which is established to have been made as a result of
torture.” There is accordingly said to be a burden on the appellant in the
SIAC proceedings to prove the truth of his assertion.
55. I do not for my part think that a conventional approach to the
burden of proof is appropriate in a proceeding where the appellant may
not know the name or identity of the author of an adverse statement
relied on against him, may not see the statement or know what the
statement says, may not be able to discuss the adverse evidence with the
special advocate appointed (without responsibility) to represent his
interests, and may have no means of knowing what witness he should
call to rebut assertions of which he is unaware. It would, on the other
hand, render section 25 appeals all but unmanageable if a generalised
and unsubstantiated allegation of torture were in all cases to impose a
duty on the Secretary of State to prove the absence of torture. It is
necessary, in this very unusual forensic setting, to devise a procedure
which affords some protection to an appellant without imposing on
either party a burden which he cannot ordinarily discharge.
-44-
56. The appellant must ordinarily, by himself or his special advocate,
advance some plausible reason why evidence may have been procured
by torture. This will often be done by showing that evidence has, or is
likely to have, come from one of those countries widely known or
believed to practise torture (although they may well be parties to the
Torture Convention and will, no doubt, disavow the practice publicly).
Where such a plausible reason is given, or where SIAC with its
knowledge and expertise in this field knows or suspects that evidence
may have come from such a country, it is for SIAC to initiate or direct
such inquiry as is necessary to enable it to form a fair judgment whether
the evidence has, or whether there is a real risk that it may have been,
obtained by torture or not. All will depend on the facts and
circumstances of a particular case. If SIAC is unable to conclude that
there is not a real risk that the evidence has been obtained by torture, it
should refuse to admit the evidence. Otherwise it should admit it. It
should throughout be guided by recognition of the important obligations
laid down in articles 3 and 5(4) of the European Convention and,
through them, article 15 of the Torture Convention, and also by
recognition of the procedural handicaps to which an appellant is
necessarily subject in proceedings from which he and his legal
representatives are excluded.

105
57. Since a majority of my noble and learned friends do not agree
with the view I have expressed on this point, and since it is of practical
importance, I should explain why I do not share their opinion.
58. I agree, of course, that the reference in article 15 to “any
statement which is established to have been made as a result of torture”
would ordinarily be taken to mean that the truth of such an allegation
should be proved. That is what “established” ordinarily means. I would
also accept that in any ordinary context the truth of the allegation should
be proved by the party who makes it. But the procedural regime with
which the House is concerned in this case, described in paragraphs 6-7
and 55 above, is very far from ordinary. A detainee may face the
prospect of indefinite years of detention without charge or trial, and
without knowing what is said against him or by whom. Lord Woolf CJ
was not guilty of overstatement in describing an appellant to SIAC, if
denied access to the evidence, as “undoubtedly under a grave
disadvantage” (M v Secretary of State for the Home Department [2004]
EWCA Civ 324, [2004] 2 All ER 863, para 13). The special advocates
themselves have publicly explained the difficulties under which they
labour in seeking to serve the interests of those they are appointed to
represent (Constitutional Affairs Committee of the House of Commons,
The operation of the Special Immigration Appeals Commission (SIAC)
-45-
and the use of Special Advocates, Seventh Report of Session 2004-05,
vol II, HC 323-II, Ev 1-12, 53-61).
59. My noble and learned friend Lord Hope proposes, in paragraph
121 of his opinion, the following test: is it established, by means of such
diligent enquiries into the sources that it is practicable to carry out and
on a balance of probabilities, that the information relied on by the
Secretary of State was obtained under torture? This is a test which, in
the real world, can never be satisfied. The foreign torturer does not
boast of his trade. The security services, as the Secretary of State has
made clear, do not wish to imperil their relations with regimes where
torture is practised. The special advocates have no means or resources
to investigate. The detainee is in the dark. It is inconsistent with the
most rudimentary notions of fairness to blindfold a man and then impose
a standard which only the sighted could hope to meet. The result will be
that, despite the universal abhorrence expressed for torture and its fruits,
evidence procured by torture will be laid before SIAC because its source
will not have been “established”.
60. The authorities relied on by my noble and learned friends Lord
Hope of Craighead and Lord Rodger of Earlsferry to support their
conclusion are of questionable value at most. In El Motassadeq, a
decision of the Higher Regional Court of Hamburg of 14 June 2005, the
United States Department of Justice supplied the German court, for
purposes of a terrorist trial proceeding in Germany with reference to the
events of 11 September 2001, with summaries of statements made by
three Arab men. There was material suggesting that the statements had
been obtained by torture, and the German court sought information on

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the whereabouts of the witnesses and the circumstances of their
examination. The whereabouts of two of the witnesses had been kept
secret for several years, but it was believed the American authorities had
access to them. The American authorities supplied no information, and
said they were not in a position to give any indications as to the
circumstances of the examination of these persons. Two American
witnesses who attended to give evidence took the same position. One
might have supposed that the summaries would, without more, have
been excluded. But the German court, although noting that it was the
United States, whose agents were accused of torture, which was denying
information to the court, proceeded to examine the summaries and found
it possible to infer from internal evidence that torture had not been used.
This is not a precedent which I would wish to follow. But at least the
defendant knew what the evidence was.
61. In Mamatkulov and Askarov v Turkey (Application Nos 46827/99
and 46951/99, unreported, 4 February 2005) the applicants had resisted
an application by the Republic of Uzbekistan to extradite them from
Turkey to stand trial on very serious charges in Uzbekistan. They
resisted extradition on the ground, among others, that if returned to
Uzbekistan they would be tortured. There was material to show that that
was not a fanciful fear. On application made by them to the European
Court of Human Rights, it indicated to Turkey under rule 39 of its
procedural rules that the extradition should not take place until it had
had an opportunity to examine the validity of the applicants’ fears. But
in breach of this measure, and in violation of article 34 of the
Convention, Turkey surrendered the applicants. The Chamber found, in
effect, that no findings of fact could be made since the applicants had
been denied an opportunity to have inquiries made to obtain evidence in
support of their allegations: paragraph 57 of the judgment. The
approach of the Grand Chamber appears from paragraphs 68 and 69 of
its judgment:
“68. It would hardly be compatible with the ‘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 person to another State
where there were substantial grounds for believing that he
would be in danger of being subjected to torture or
inhuman or degrading treatment or punishment (Soering,
cited above, p 35, § 88).
69. In determining whether substantial grounds have
been shown for believing that a real risk of treatment
contrary to Article 3 exists, the Court will assess the issue
in the light of all the material placed before it or, if
necessary, material obtained proprio motu...”
Despite a compelling dissent, from which I have quoted in paragraph 26
above, the Grand Chamber concluded that Turkey had not violated
article 3 of the Convention in surrendering the applicants. It did so in
reliance on assurances received by Turkey from the Uzbek Government

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and the Uzbek Public Prosecutor before and after the surrender, and
medical reports by doctors at the Uzbek prison where the applicants
were being held. These matters were not sufficient to allay the concerns
of the minority, and understandably, since Turkey’s unlawful conduct
prevented the European Court examining the case as it would have
wished. But the applicants were able to participate fully in the
proceedings in Turkey and were not denied knowledge of the case
against them.
62. I regret that the House should lend its authority to a test which
will undermine the practical efficacy of the Torture Convention and
deny detainees the standard of fairness to which they are entitled under
article 5(4) or 6(1) of the European Convention. The matter could not
be more clearly put than by my noble and learned friend Lord Nicholls
of Birkenhead in the closing paragraph of his opinion.
Disposal
63. The Court of Appeal were unable to conclude that there was no
plausible suspicion of torture in these cases. I would accordingly allow
the appeals, set aside the orders made by SIAC and the Court of Appeal,
and remit all the cases to SIAC for reconsideration in the light of the
opinions of the House.

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