Chahal Family v. United Kingdom
|Publisher||Council of Europe: European Commission on Human Rights|
|Publication Date||27 June 1995|
|Citation / Document Symbol||22414/93|
|Cite as||Chahal Family v. United Kingdom, 22414/93, Council of Europe: European Commission on Human Rights, 27 June 1995, available at: http://www.refworld.org/docid/402a28694.html [accessed 31 July 2014]|
|Disclaimer||This is not a UNHCR publication. UNHCR is not responsible for, nor does it necessarily endorse, its content. Any views expressed are solely those of the author or publisher and do not necessarily reflect those of UNHCR, the United Nations or its Member States.|
REPORT OF THE COMMISSION
TABLE OF CONTENTS
I. INTRODUCTION (paras. 1-19)
A. The application (paras. 2-4)
B. The proceedings (paras. 5-14)
C. The present Report (paras. 15-19)
II. ESTABLISHMENT OF THE FACTS (paras. 20-78)
A. The particular circumstances of the case (paras. 20-47)
B. The relevant domestic law (paras. 48-61)
C. The Indian background to the present case, as described by the Government (paras. 62-65)
D. The effects of Sikh extremism outside India and particularly in the United Kingdom, as described by the Government (paras. 66-69)
E. The Government's case of the first applicant's involvement in Sikh extremism and terrorism (paras. 70-71)
F. The first applicant's response to the Government's allegations (paras. 72-78)
III. OPINION OF THE COMMISSION (paras. 79-158)
A. Complaints declared admissible (paras. 79-80)
B. Points at issue (para. 81)
C. As regards Article 3 of the Convention (paras. 82-115)
Conclusion (para. 115)
D. As regards Article 5 para. 1 of the Convention (paras. 116-123)
Conclusion (para. 123)
E. As regards Article 5 para. 4 of the Convention (paras. 124-129)
Conclusion (para. 129)
F. As regards Article 8 of the Convention (paras. 130-140)
Conclusion (para. 140)
G. As regards Article 13 of the Convention (paras. 141-153)
Conclusion (para. 153)
H. Recapitulation (paras. 154-158)
PARTIALLY DISSENTING OPINION OF MR. TRECHSEL
APPENDIX I : HISTORY OF THE PROCEEDINGS
APPENDIX II : DECISION OF THE COMMISSION AS TO THE ADMISSIBILITY OF THE APPLICATION
1. The following is an outline of the case as submitted to the European Commission of Human Rights, and of the procedure before the Commission.
A. The application
2. The first applicant, Karamjit Chahal, is an Indian citizen, born in 1948, and presently detained for deportation purposes in H.M. Prison Bedford. The second applicant, Darshan Kaur Chahal, his wife, is an Indian citizen, who was born in 1956. She resides in Lutonwith the two children of the family, a daughter called KiranpreetKaur Chahal, the third applicant, born in 1977, and a son called BikaramjitSingh Chahal, the fourth applicant, born in 1978. By virtue of their birth in the United Kingdom, the two children have British nationality. The applicants were represented before the Commission by Mr. D. Burgess, Solicitor, Messrs. Winstanley-Burgess, Solicitors, London.
3. The application is directed against the United Kingdom. The respondent Government were represented by their Agent, Mr. I. Christie.
4. The case concerns the proposed deportation of the first applicant, an Indian Sikh militant, from the United Kingdom on national security grounds. He has been detained for nearly five years pending the enforcement of the deportation order and the outcome of the domestic and Strasbourg proceedings. The first applicant invokes Article 3, Article 5 paras. 1 and 4, Article 8 and Article 13 of the Convention. (A complaint he originally made under Article 6 para. 1 of the Convention concerning the fairness of certain remedies was declared inadmissible by the Commission on 1 September 1994; see Appendix II to this Report.) The other applicants invoke Articles 8 and 13 of the Convention.
B. The proceedings
5. The application was introduced on 27 July 1993 and registered on
9. The Government's observations were submitted, after an extension of the time-limit set for this purpose, on
11. At the hearing on
13. The text of the Commission's decision on admissibility was sent to the parties on
The applicants submitted further evidence and additional observations on
14. After declaring the case admissible, the Commission, acting in accordance with Article 28 para. 1 (b) of the Convention, also placed itself at the disposal of the parties with a view to securing a friendly settlement. In the light of the parties' reaction, the Commission now finds that there is no basis on which such a settlement can be effected.
C. The present Report
15. The present Report has been drawn up by the Commission in pursuance of Article 31 of the Convention and after deliberations and votes, the following members being present:
MM. C.A. NØRGAARD, President
MM. F. MARTINEZ
Mrs. J. LIDDY
MM. J.-C. GEUS
I. CABRAL BARRETO
16. The text of this Report was adopted on
17. The purpose of the Report, pursuant to Article 31 of the Convention, is:
(i) to establish the facts, and
(ii) to state an opinion as to whether the facts found disclose a breach by the State concerned of its obligations under the Convention.
18. A schedule setting out the history of the proceedings before the Commission is attached hereto as Appendix I and the Commission's decision on the admissibility of the application as Appendix II.
19. The full text of the parties' submissions, together with the documents lodged as exhibits, are held in the archives of the Commission.
II. ESTABLISHMENT OF THE FACTS
A. The particular circumstances of the case
20. The first applicant entered the United Kingdom in 1971 without seeking leave to do so from British immigration authorities. In 1974 he applied to the Home Office to regularise his stay and on
21. The second applicant settled in the United Kingdom in 1975 and the third and fourth applicants have been resident there since their birth.
22. From 1 January to
23. The first applicant has been arrested by the British police in connection with his activities and associates in the United Kingdom. He has twice been charged with criminal offences of a violent order relating to disputes in the affairs of two gurdwaras. He has been acquitted by a jury in one case. The other case resulted in his conviction in May 1987, but it was quashed by the Court of Appeal on
24. A request by the first applicant for British nationality was refused on
26. The first applicant applied for political asylum, claiming to be a victim of threatened torture and persecution in India on the following basis:
a) his personal experiences in India between January and May 1984, during which time it is accepted that he was detained for over three weeks and tortured by a number of Indian police officers in two different police stations;
b) the consistent evidence of a real risk of torture, murder, and detention at the hands of the Indian authorities, particularly the police, faced by those who either are, or are perceived to be, Sikh militants and adherents to the cause of a Sikh state in India. The evidence extends throughout the period 1984 to 1992 and is continuing. It is most comprehensively expressed in the reports of Amnesty International, their letters to the Secretary of State in the present case, the evidence of other experts, and the evidence relied on by the Home Office, namely a report prepared by the British Foreign Office;
c) the evidence of a certain Kharnail Singh Khaira, who visited India in 1989, was detained and tortured there after visiting the first applicant's relatives, and was questioned about the applicant by his torturers;
d) evidence relating to the fate of other relatives or acquaintances of the first applicant, eg. the deaths at the hands of the police of his cousin's son-in-law (1983), his cousin's son (October 1989), a relative by marriage (February 1990), and his second cousin (March 1990), and the arrest and torture of his sister, brother-in-law and two nephews (October 1989), by the police;
e) the arrest and detention, with or without charge, of the family and acquaintances of the first applicant on suspicion of supporting Sikh separatist militants, many of whom, including his parents, having been tortured and questioned about the first applicant;
f) the accounts given by the first applicant's village headman and family in India as to the interest in the applicant shown by the security forces;
g) the interest in the first applicant's proposed expulsion from the United Kingdom on national security grounds and his Sikh militancy expressed by the national press in India, including misrepresentations as to the extent of and reasons for the police interest in the applicant in India;
h) the circulation by the Indian national press and some pro-government agency in the United Kingdom (which the applicants believe to be the Indian High Commission) of inaccurate speculation purporting to come from an identified British senior police officer that the first applicant had been found in possession of explosives and had targeted prominent Sikhs in the United Kingdom;
i) a warning on behalf of the Canadian police, given to the first applicant before the deportation proceedings began, that he was in danger in India;
j) the fact that the first applicant's former associate, Jasbir Singh Rode, was detained without trial or charge for four years upon his expulsion to India;
k) evidence relating to the general events in the Punjab, the scale of the problems, the inadequacy of the response of the authorities or their inability to respond;
l) the decisions of judicial authorities in the United Kingdom and elsewhere considering the application of the relevant legal criteria of risk of persecution to credible accounts of fears of persecution given by Sikh militants with respect to their treatment in India.
28. The Home Secretary expressed the following views about the first applicant throughout the domestic proceedings:
a) the first applicant has a public history of violent involvement in Sikh terrorism, including involvement in the financing of terrorism in India by the supply of money and equipment to terrorists in the Punjab since 1985, which equipment has been used for actual terrorist operations;
b) he has been involved in the planning and directing of terrorist attacks in India, the United Kingdom and elsewhere; and
c) in his leading role in a faction of the ISYF, he was involved in that faction's programmeof intimidation directed against members of other groups within the United Kingdom Sikh community.
29. The applicant was not informed of the basis for these views which were put to the advisory panel. He was not allowed to be represented by a lawyer and he was not informed of the advice which the panel gave to the Home Secretary. The latter subsequently signed a deportation order against the first applicant on
30. The applicant sought judicial review of the Home Secretary's decision. Leave was granted by the High Court on
31. After further consideration of the first applicant's situation, the Home Secretary adhered to his previous decision (renewed decision
32. Part of the first applicant's case was based on reports by Amnesty International and other material showing that a great number of Sikhs have been persecuted in India. Amnesty International, convinced that the first applicant, if sent to India against his will, would be at risk of torture, "disappearance" or extrajudicial execution, made representations about the present case to the Home Secretary. The latter examined Amnesty's documentation, but stated,
"... that the emergency powers in force in the Punjab, including the Terrorist and Disruptive Activities Act 1985 (TADA), are lawful powers, properly enacted by the Indian Parliament, which have been instituted in response to the very serious threat to the life and safety of the community posed by the activities of Sikh terrorists in the Punjab. He (noted) that the judiciary in India is independent of the Government and that there is an effective system of appeals in criminal matters ranging from District Courts to the Supreme Court."
33. Concerning human rights violations by the Indian security forces in the Punjab, the Home Secretary commented as follows:
"... he considers that these actions arise from failures of discipline and supervision and not from any concerted policy on the part of the Indian authorities. Moreover, he considers that the breakdown of law and order of which these violations are a part results directly from the activities of Sikh terrorists and in particular their strategy of intimidation and provocation of members of the security forces. He does not accept that they are evidence of persecution within the terms of the UN Refugee Convention against Sikhs generally in the Punjab, nor against supporters of an independent Sikh homeland, nor against alleged Sikh terrorists ... [he] notes that these violations have not been condoned by the Indian or state Governments ...".
34. The Home Secretary also examined what might happen to the first applicant on his return to India. He accepted that the first applicant might be arrested and charged with terrorist offences in India, under the TADA or other provisions of Indian criminal law. However, were he to be charged, the Secretary of State believed that he would be subject to prosecution for alleged criminal activities, not for his political beliefs or expressions, and that he would receive full protection by the Indian Government from mistreatment while held in custody.
35. If the first applicant were not arrested by the Indian authorities, the Home Secretary accepted that he or indeed any other person visiting or living in the Punjab at that time faced some risk of violence, both from being caught up in a terrorist outrage or from the activities of members of the security forces acting outside the law. However, the Home Secretary did not regard this as persecution within the meaning of the 1951 United Nations Convention on the Status of Refugees. He noted that Sikhs live safely in most parts of India outside the Punjab and that the first applicant was not obliged to return to the Punjab itself. He would be returned to any international airport of his choice within India.
36. In a letter of
37. In his reply by letter of
"... sought and received assurances from the Indian Government a copy of which is attached and which further satisfy him as to this matter. The Secretary of State therefore remains of the view that Mr. Chahal would be safe from ill-treatment if taken into custody by the Indian authorities wherever he might be held in custody."
38. The assurances mentioned are contained in a letter dated
"... if Mr. Chahal were to be deported to India, he would enjoy the same legal protection as any other Indian citizen, and ... he would have no reason to expect to suffer ill-treatment of any kind at the hands of the Indian authorities."
39. Subsequent to this correspondence, further material (in particular from Amnesty International) was made available to the Home Secretary. In response he stated that he did not substantially dispute Amnesty's reports insofar as they related in a limited way to the general situation in the Punjab, but he commented that he did not accept that the material used in the compilation of these reports was necessarily independent or objective. Nor did he draw the same inferences as the applicants' solicitors from those reports.
40. The quashing of the first applicant's conviction by the Court of Appeal on
41. The first applicant applied for judicial review to challenge the Home Secretary's second refusal of asylum and the maintenance of the deportation decision. He also applied for bail, which was refused on
43. The Court of Appeal noted that, whilst it had before it massive evidence as to whether the life or freedom of the first applicant would be threatened if he were returned to India, it did not have the evidence on which the Home Secretary considered the applicant to be a risk to national security. So the Court could not balance the threat on the one hand against the risk on the other. Its function was to consider the first applicant's evidence regarding the threat to his life and to examine whether the Home Secretary's decision on grounds of national security was irrational, perverse or based on a misdirection. It was also required to examine whether there was sufficient evidence that the Home Secretary balanced the gravity of the national security risk against all other circumstances, including the likely risk of persecution if the person were deported. The Court pointed out that the scrutiny of the claim that a person should be deported in the interests of national security may in practice be defective or incomplete if all the relevant facts are not before the it. Furthermore, even when the relevant facts are before the Court, it is not empowered to carry out its own assessment of the respective risks.
44. As to the particular facts of the case, one member of the Court of Appeal considered that much of the evidence about the first applicant's past was second-hand, or even more remote, and could in part be said to be evidence of impression rather than fact. Another judge considered that there was a clear case to consider that the first applicant had a well-founded fear of being persecuted, within the meaning of Article 1 of the 1951 Convention on the Status of Refugees, if returned to India. It was deemed irrelevant that some of the victims of police violence in India were guilty of terrorist acts. The possibility that the first applicant would suffer unauthorised ill-treatment in the hands of Indian security forces was left open.
45. Nevertheless, the Court of Appeal was impressed by the assurance given by the Indian Government that the first applicant's rights would be protected on return to India. The Court was informed that such assurances are seldom sought or given.
46. The Court thus held that it had power to examine the grounds on which a deportation order was made, even where the interests of national security are relied upon, although in practice its scrutiny is limited. As regards the facts of the present case, the Court concluded that the grounds of national security could not be challenged and there was sufficient evidence that the Home Secretary had carried out the necessary balancing exercise.
47. The first applicant's petition to the House of Lords for leave to appeal was rejected on
B. The relevant domestic law
48. By section 3(5)(b) of the Immigration Act 1973 ("the Act"), the Home Secretary has the power to deport persons who are not British citizens, including those such as the first applicant who have indefinite leave to remain in the United Kingdom, on the ground that their deportation is conducive to the public good. The first applicant was granted indefinite leave to remain in the United Kingdom on
49. By section 15(1) of the Act, there is a right of appeal to an independent tribunal against a decision to deport, but by section 15(3):
"A person shall not be entitled to appeal against a decision to make a Deportation Order against him if the ground of the decision was that his deportation is conducive to the public good as being in the interests of national security or of the relations between the United Kingdom and any other country or for other reasons of a political nature."
50. This exception was maintained in the Asylum and Immigration Appeals Act 1993, which came into force in July 1993. It provides a right of appeal to an independent adjudicator in all but national security cases where expulsion would be contrary to the United Kingdom's obligations under the 1951 Convention on the Status of Refugees.
51. The first applicant's case was considered by a non-statutory advisory panel (presided over by a Lord Justice of Appeal, now a Law Lord) instituted in 1971 for national security cases of this type. The existence of this procedure is vouchsafed by paragraph 157 of the Statement of Changes in Immigration Rules (House of Commons Paper 251).
52. By paragraphs 161 and 173 of the Home Secretary's current Rules governing immigration control and practice in the United Kingdom (HC 251), deportation orders may not be made in breach of the United Kingdom's obligations under the 1951 Convention and Protocol Relating to the Status of Refugees.
53. The relevant Articles of the Refugee Convention are Articles 32 and 33. Article 33 provides:
"1. No contracting state shall expel or return a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion.
2. The benefit of the present provision may not, however, be claimed by a refugee whom there are reasonable grounds for regarding as a danger to the security of the country in which he is, or who, having been convicted by a final judgment of a particularly serious crime, constitutes a danger to the community of that country."
54. The first applicant was detained following the service on him of the Home Secretary's notice of intention to deport. The power to detain, pending the making of an order, derives from paragraph 2(2) of Schedule III to the Act, which reads as follows:
"Where notice has been given to a person in accordance with Regulations under Section 18 of this Act of a decision to make a Deportation Order against him, and he is neither detained in pursuance of the sentence or order of a Court nor for the time being released on bail by a Court having power so to release him, he may be detained under the authority of the Secretary of State pending the making of the Deportation Order."
55. The power to detain after the making of an order derives from paragraph 2(3), which provides:
"Where a Deportation Order is in force against any person, he may be detained under the authority of the Secretary of State pending his removal or departure from the United Kingdom (and if already detained by virtue of sub-paragraph (1) or (2) above when the order is made, shall continue to be detained unless the Secretary of State directs otherwise)."
56. The Home Secretary has a practice of not removing asylum seekers from the United Kingdom pending the resolution of any judicial review proceedings they might bring (Muboyayi case  IQB 244 at 259C).
57. The High Court has power to review the Home Secretary's decision to maintain an asylum seeker in detention (R v. Governor of Durham Prison, Ex-Parte Hardial Singh  IWLR 704), but it is incumbent on an applicant to demonstrate that the Home Secretary was acting for a collateral purpose or irrationally.
58. The decisions of the Home Secretary are liable to challenge by way of judicial review and may be quashed by reference to the ordinary principles of English public law. This remedy was explained before the European Court of Human Rights in the case of Vilvarajah and Others (Eur. Court H.R., Vilvarajah and Others judgment of 30 October 1991, Series A no. 215, pp. 29-31, paras. 89-93, and pp. 38-40, paras. 117-127).
59. The High Court's supervisory function in relation to the lawfulness of an asylum decision is not displaced merely because national security issues are also engaged. However, judicial review in this field is limited because "the decision on whether the requirements of national security outweigh the duty of fairness in a particular case is a matter for the Government to decide, not for the courts; the Government alone has access to the necessary information and in any event the judicial process is unsuitable for reaching decisions on national security" (Council of Civil Service Unions v. Minister for the Civil Service  AC. 374, Lord Fraser at 402). Nevertheless, the fairness of the procedure by which the Government have reached their decision is justiciableand it is for the courts to determine whether the Government have in fact balanced any conflicting interests between national security and the individual.
60. Any person in detention is entitled to seek bail or challenge the lawfulness of his detention by way of a writ of habeas corpus.
61. Reciprocal extradition arrangements between India and the United Kingdom are possible under the Extradition Act 1989, India being a Commonwealth country. Previous restrictions preventing the return of political offenders were modified by an extradition treaty concluded with India in 1993, and in which were integrated certain notions contained in the Suppression of Terrorism Act 1978. The treaty thus allows extradition for certain serious offences hitherto deemed to have a political character, provided that the extradition request discloses no ulterior elements of a racial, religious, national or political nature. The matters with which the first applicant is reproached, such as conspiracy to supply funds, would not fall within any of the offences defined in the 1978 Act.
C. The Indian background to the present case, as described by the Government
62. In their observations of
63. Since 1984, the terrorist campaign for an independent Khalistan has claimed over 20,000 lives. Sikh unrest in India peaked in 1992, when apparently around 4000 lives were lost in terrorist related incidents mainly in the Punjab. Since then it has considerably declined; in 1994, only 51 such deaths had been reported by autumn of that year. There are signs that normal life is being restored, with the reassertion of the electoral and judicial processes, after years of acquiescence in the face of police intimidation and militant activity.
64. Standards still need to be improved, and there is national and local commitment to that. For example, the Chief Minister of the Punjab has agreed to give favourableconsideration to setting up a state human rights commission. Whilst abuse of detainees (irrespective of religion or political opinion) by law enforcement authorities has been a widespread problem throughout India, the Indian Government's attitude has now changed, with international criticism of its human rights record being taken seriously. A National Human Rights Commission has been established to monitor developments. It visited the Punjab in 1994 and reported that terrorism had been contained and that normal life was being resumed, thus paving the way to normalising the role and function of the police and re-establishing District Magistrate authority over them, hitherto lacking.
65. The Terrorist and Disruptive Activities (Prevention) Act (TADA), first introduced in 1985 to deal with the exceptional situation in the Punjab (but enforced throughout the country), has not helped to strengthen the accountability of the security agencies. However, the Central Government are showing some signs of recognisingthe need to prevent abuses of the TADA, and its operation is now under high level Government review.
D. The effects of Sikh extremism outside India and particularly in the United Kingdom, as described by the Government
66. According to the information of the respondent Government as of
67. In the 1980s Sikh terrorist groups organised themselves into so-called Panthic Committees, amongst which there was considerable rivalry. This rivalry spilled over into the United Kingdom.
68. In August 1984 Jasvir Singh Rode, the nephew and spiritual successor of Bhindranwale who had been killed during "Operation Blue Star", arrived in the United Kingdom to establish branches of the International Sikh Youth Federation (ISYF) which would support the terrorist organisations operating in the Punjab. During his visits to gurdwaras throughout the United Kingdom, Rode made speeches urging Sikhs to return to the Punjab to fight the Indian army. At the Luton gurdwara he stated that he would be keeping £1000 of donations to buy firearms for use in the Punjab. He was expelled in December 1984 because of such public advocacy. Meanwhile Harpal Sing Ghuman, described by the Government as the leader of the military element of Sikh extremism, had also arrived in the United Kingdom, whilst keeping a lower profile.
69. The Government state that in 1988 the ISYF in the United Kingdom began to split into two distinct factions, reflecting the formation of the Panthic Committees in the Punjab. The southern branch sought to take over the organisationand to redirect misappropriated funds to another PanthicCommittee. Having failed to bring about a change of leadership by constitutional means, violence and litigation ensued, involving in particular the Havelock Road Gurdwara in Southall, London, and plots were formulated to assassinate leading characters in the conflict which, according to the Government, included the applicant. The conflict ended with an injunction banning certain southern ISYF people from the Havelock Road Gurdwara. The injunction was enforced by the London Metropolitan Police.
E. The Government's case of the first applicant's involvement in Sikh extremism and terrorism
70. In their observations of 23 December 1994, the Government, in addition to what was publicly relied on in the domestic proceedings (para. 28 above) make, inter alia, the following allegations:
a) When the first applicant was in the Punjab in January 1984, he had regular contacts with the militant, Bhindranwale, at the Golden Temple.
b) The leader of the military element of Sikh extremism, Ghuman, stayed at the applicant's home in 1984 when they toured the United Kingdom together in the wake of Rode, recruiting ISYF activists.
c) As a result of these associations, the first applicant emerged as the dominant figure in the United Kingdom ISYF and had considerable contacts with the Sikh terrorist leadership in India and Pakistan.
d) He was detained under the Prevention of Terrorism (Temporary Provisions) Act 1984 (the PTA) in October 1985 on suspicion of involvement in a conspiracy to assassinate Rajiv Gandhi during an official visit to the United Kingdom, but he was released for lack of evidence.
e) The first applicant was believed to be involved in an ISYF conspiracy to murder moderate Sikhs in the United Kingdom in 1985/1986. He was arrested under the PTA and later released without charge.
f) In April 1986 he threatened to use his ceremonial sword against a police officer if he were visited at home.
g) Reliance is again placed on the first applicant's conviction in May 1987, albeit subsequently quashed on appeal, concerning disturbances at the Belvedere Gurdwara in Kent.
h) In 1988 the first applicant was deemed to be the de facto leader of a hard line of southern ISYF members who supported the Second Panthic Committee. He played a significant leading role in organising the intimidation of rival groups by the use of force.
i) In July 1990 close associates of the first applicant were arrested, charged and convicted of conspiracy to cause explosions in the United Kingdom. He attended one of the accused's remand hearing and other close associates of his (also called Chahal) stood surety for that person.
j) The second applicant has participated in the intimidation of her husband's opponents and their families, including an attempted assault on someone with a ceremonial sword.
k) In 1992 threats were made against the families of British officials in India in connection with the first applicant's deportation proceedings.
l) The first applicant has misappropriated and controlled gurdwara funds using threats of violence.
m) Under the first applicant's leadership, the southern faction of the ISYF was a secure and effective group. Since his detention, this faction has virtually ceased to exist and moderate control of the Havelock Road Gurdwara has been restored. The loss of influence and control over funds has led to a loss of standing within the Second Panthic Committee. Sikh violence has also diminished in the United Kingdom.
71. The Government emphasise that this does not represent the full national security case against the first applicant. The full case cannot be disclosed because intelligence sources require protection. None of these sources came from the Indian Government. For the same reason, it has not proved possible to prosecute the first applicant further in the United Kingdom.
F. The first applicant's response to the Government's allegations
72. The first applicant categorically denies all the Government's allegations and insinuations of guilt by association. He submits, inter alia, the following:
a) The first applicant only once met Bhindranwale personally during his stay in the Punjab in 1984, and he was then accompanied by his family.
b) Ghumanis not a leader of the military element of Sikh extremism, but an intellectual deemed friendly to the Indian Government.
c) Rode did not say that he would keep donations for terrorist purposes. Money was collected to help the widows and orphans of the Golden Temple massacre.
d) The first applicant toured the United Kingdom with Rode, and later Ghuman, teaching on spiritual matters.
e) There are no terrorist implications behind the first applicant's contacts with Bhindranwale, Ghuman and Rode. He has had no contact with Sikh extremists. The Government have been misled.
f) There has never been an inner core of ISYF activists and the first applicant has not been a dominant figure in that organisation, although he has been a leading spiritual member of the Sikh community.
g) The Government's understanding of Sikh events in the United Kingdom is incorrect. The split in the ISYF came after Rode abandoned his support for an independent Khalistan.
h) The ISYF has been recognised by the Government as an important and constructive organisation for the United Kingdom Sikh community.
i) The southern faction of the ISYF was not the originator of the disturbances at the Havelock Road Gurdwara. The ISYF did not seek funds from gurdwaras. There has been neither fund raising for arms or equipment, nor misappropriation of funds. Such matters could easily have been the subject of criminal investigation and prosecution, if need be. An examination of the Havelock Road Gurdwara's finances reveals that its funds were largely committed to maintenance costs.
j) Whilst it is true that the first applicant has occasionally been arrested and detained, as part of the police focus on migrant communities, he has been found innocent every time. The quashing of his conviction by the Court of Appeal in July 1992 was not a mere procedural matter, but a condemnation of the kind of prejudice upon which the Government's present allegations are based.
k) He denies involvement in any conspiracy to assassinate Rajiv Gandhi or any moderate Sikhs in the United Kingdom.
l) Neither he nor his wife have used, or threatened to use, a ceremonial sword against anyone. Neither of them have intimidated members of the Sikh community or their families. There has been no police questioning of the applicants concerning such allegations.
m) The first applicant had no association, other than minor social contact, with the people who were convicted of conspiracy to cause explosions or those who helped them obtain bail. The fact that the latter were called Chahal merely reflects the commonplace nature of the name.
n) The first applicant refutes the "Godfather" image propounded by the Government and denies any intimidation of British families in India on his behalf.
73. The applicants reject the Government's description of the background events in India and their effects elsewhere (paras. 62-69 above) as being simplistic and laden with value judgments in using such terms as "terrorist", "Sikh extremists", "hard line", "Sikh moderates" and "terrorist related incidents". It should not be forgotten that many of the reported deaths were perpetrated by the police, and included people killed in false encounters staged by the security forces. A major component of the violence in India may thus be attributed to State terrorism.
74. Reliance for this claim is placed, inter alia, on the report of the National Human Rights Commission concerning its Punjab visit in 1994, in which it recorded complaints against the police of arbitrary arrests, disappearances, custodial deaths and fake encounters resulting in killings. The view was also expressed that District Magistrates were not at present in a position to inquire into complaints of human rights violations by the police and that there was still a prevailing feeling of the police being above the law and answerable to none. The report further recorded that detention under the Terrorist and Disruptive Activities (Prevention) Act 1985 was severely criticisedby the public, allegations of arbitrariness being made.
75. The applicants consider that the United Kingdom Government do not understand Sikh politics in either the United Kingdom or India. They do not seem to be aware of the divisive personal splits within the United Kingdom Sikh community and the opportunity thereby created to convey false information from apparently independent individuals who may support or be supported by the Indian Government. Furthermore, the struggle within local United Kingdom gurdwaras is not a terrorist based conflict, but the normal fight for power and influence to be found in any political group. It is certainly not a struggle concerning the release of funds for terrorist purposes.
76. The applicants contend that the sub-text of the Government's submissions is that the first applicant's return to the Punjab is desirable as a warning to others, however flawed the evidence. It is therefore suggested that the reasons for the drop in Sikh militancy could be the changing situation in the Punjab, now that one side has been crushed, and fear for the consequences of speaking out in the United Kingdom in view of what has happened to the first applicant. This effect would have been achieved with a threat to deport any other Sikh and is not unique to the first applicant.
77. The applicants submit that the Government have been wrongly influenced by defamatory newspaper articles and statements from critics in the Sikh community, with the result that they have unacceptably and pejoratively labelled the first applicant as a terrorist. As the Government have not disclosed their sources of information, it is difficult to modify this erroneous picture of him, which in any event does not raise a national security issue. The applicants warn against the tendency to assume that what is secret is true.
78. With this undisclosed background to the case, the applicants can only speculate on what may have influenced the Government's decision. They point to the huge investments made, and aid given by, the United Kingdom to India, and the intense international competition for India's capital projects. India is the only State outside the European Union and the United States of America to benefit from special anti-terrorist measures in extradition arrangements. The applicants suggest that the Government's view may be blinkered by this special relationship with India.
III. OPINION OF THE COMMISSION
A. Complaints declared admissible
79. The Commission has declared admissible the first applicant's complaints that his deportation to India would expose him to a real risk of torture or inhuman or degrading treatment, that his detention pending deportation has been too long, that the judicial control thereof has been ineffective and slow, and that he has no effective domestic remedy for his Convention claims because of the national security elements in his case.
80. The Commission has also declared admissible the complaint of all the applicants that the deportation of the first applicant would breach their right to respect for family life, for which Convention claim they have no effective domestic remedy.
B. Points at issue
81. The points at issue in the present case are as follows:
- whether there would be a violation of Article 3 (Art. 3) of the Convention in the first applicant's case if he were to be deported to India;
- whether there has been a violation of Article 5 para. 1 (Art. 5-1) of the Convention in the first applicant's case as regards the lawfulness and length of his detention;
- whether there has been a violation of Article 5 para. 4 (Art. 5-4) of the Convention in the first applicant's case, both as regards the nature of the judicial controls in his case and their speed;
- whether there would be a violation of Article 8 (Art. 8) of the Convention for all the applicants if the first applicant were to be deported to India; and, finally,
- whether there has been a violation of Article 13 (Art. 13) of the Convention.
C. As regards Article 3 (Art. 3) of the Convention
82. Article 3 (Art. 3) of the Convention provides as follows:
"No one shall be subjected to torture or to inhuman or degrading treatment or punishment."
83. The first applicant contends that he has adequately shown that he runs a real risk of death or torture in custody if returned to India, contrary to Article 3 (Art. 3) of the Convention. He refers to the elements listed above (para. 26 above). He submits that he cannot be expected to prove such a prediction.
84. It seems likely that the first applicant would be arrested if returned to India. Whilst the assurances of the Indian Government are to be taken into account, they are, according to the first applicant, of little value. The fact is that the Indian Government have been and continue to be unable to keep in check abuses by their security forces in the Punjab and elsewhere. No special precautionary measures or protection have been proposed for him.
85. Neither the Indian legal system nor the Indian Constitution, given the emergency legislation in force, can offer sufficient protection against death and torture in custody in cases of terrorist suspects. For example, the Terrorist and Disruptive Activities (Prevention) Act 1985, permits police custody without access to family members or lawyers for up to 60 days, during which time human rights abuses are rife. The Armed Forces (Special Powers) Act (in force since 1958) provides broadly defined powers to shoot to kill, with virtual immunity from prosecution. The National Security Act 1980 permits indefinite detention without trial for preventive purposes on loosely defined grounds of national security. The first applicant underlines that, unlike the applicants in the Vilvarajahcase, he does not fear persecution from random terrorist violence in India, but from the State security forces (cf. Eur. Court H.R., Vilvarajah and Others judgment of 30 October 1991, Series A no. 215). The situation is unlikely to improve, given the absence of enduring political initiatives in India.
86. The Home Secretary appears to accept the broad picture of deaths in custody and torture disclosed by Amnesty International reports on India. However he concluded that such security force abuses had been provoked by terrorists. The first applicant disputes this reasoning and contends that the motives of the torturers are irrelevant to the Article 3 (Art. 3) issue. Moreover he was unable to challenge this reasoning before the domestic courts, despite the concerns expressed by the judges dealing with the case. These concerns were not assuaged by a mere finding that the United Kingdom Government was not acting illegally overall in deciding to deport the first applicant.
87. The first applicant contends that it is almost cynical to suggest that the situation in the Punjab has now greatly improved, when the decision to deport him was taken, and was to be enforced, at a time which the Government now concede was highly dangerous (see paras. 63-65 above). Thousands of people were killed annually and there were notorious human rights abuses, including torture and disappearances, perpetrated by the security forces and the police especially, towards people whose custody was frequently not even recorded. If it had not been for the judicial review and Strasbourg proceedings, the first applicant would have been sent back to a similar fate. He asserts that the relevant date for the assessment of the risk he would suffer under Article 3 (Art. 3) of the Convention was 1 June 1992, the date of the renewed decision to refuse asylum and to deport him to India, irrespective of the merits of his asylum claim. This was the period upon which the domestic courts focused during the judicial review proceedings.
88. If the Commission considers that it should examine present day conditions, the first applicant submits that it is too early to say that the situation in the Punjab is without risk for him, and far too early to write off the past years of intense violence as if they have no implications for the present. The creation of the National Human Rights Commission is to be welcomed, but its effects are not yet felt. It is noteworthy that in 1994 it was investigating hundreds of complaints against the Punjab police, and that it had expressed serious reservations about the unaccountability of the police and the arbitrary operation of the emergency laws. That Commission's powers are also severely limited and its membership apparently lacks objective independence. It cannot replace an independent, impartial, adequately resourced and accessible judiciary. However, there is no evidence that the judiciary are yet in a position to control the police and end the impunity of their operations. As an example of the latter, it is alleged that certain Sikhs, who have been recently returned by Canada to India, have been arrested and have either disappeared or have been detained without charge or trial.
89. Not only does the first applicant assert that he faces a real risk of treatment contrary to Article 3 (Art. 3) of the Convention, but he also asserts that the disputed national security question is irrelevant to the Article 3 (Art. 3) issue. In his view Article 3 (Art. 3) of the Convention, unlike the 1951 United Nations Convention on the Status of Refugees examined by the domestic courts in the present case, provides absolute protection against being sent to a country where such a real risk exists. This absolute protection is not subject to a qualification of proportionality.
90. Reliance for these propositions is placed, inter alia, on a comparison with Article 3 (Art. 3) of the 1984 United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, the absence of reciprocal obligations in asylum matters and the fact that the first applicant is not an alien in the United Kingdom but a Commonwealth citizen with strong ties to that country and, who, prior to 1971, would have had a right of abode there.
91. If there is a proportionality issue, the first applicant states that he has not violated English rules or regulations. He categorically denies the Government's allegations of terrorist activity. The first applicant points out that he has not been offered an opportunity to clear his name and there is evidence that he has been the victim of misinformation. He contends that none of the elements raised by the Government constitute a threat to the national security of the United Kingdom. Certain allegations, such as that involving a ceremonial sword or misappropriation of funds, are matters which could have been dealt with by the criminal process. The Government have been unduly influenced by their reciprocal relations with India and the general desire to discourage Sikh militancy in the United Kingdom. Such matters have no relevance to the latter's national security and cannot justify exposing the first applicant to severe ill-treatment and separation from his family.
92. The Government deny that the first applicant could be a victim of a violation of Article 3 (Art. 3) of the Convention. They contend that, contrary to the view of the Court in the Soering and Vilvarajah cases, Article 3 (Art. 3) of the Convention has no extra-territorial effect, but should be construed as a prohibition on a Member State exposing persons within its own jurisdiction to torture or to inhuman or degrading treatment (cf. Eur. Court H.R., Soering judgment of 7 July 1989, Series A no. 161, pp. 32-36, paras. 81-91, and Vilvarajah and Others judgment of 30 October 1991, Series A no. 215, p. 34, paras. 102-103).
93. Alternatively, the Government contend that, even if Article 3 (Art. 3) of the Convention has extra-territorial effect, the first applicant's return to India would not involve a breach of the Article. They place particular reliance on the assurances provided by the Indian High Commission (para. 38 above) and on the view of one Court of Appeal judge that much of the evidence of persecution and torture in the past provided by the applicant was second-hand or even more remote, and could in part be said to be evidence of impression rather than fact. They assert that the Sikh troubles have considerably declined and that this applicant could avoid involvement in possible future incidents by living outside the Punjab.
94. The Government stress that the first applicant's case has been considered at the highest level and with extreme care. The Home Secretary personally took the decision to deport him after considering the opinion of a panel of qualified advisers, which included a senior judge. That panel had before it sensitive material which could not be disclosed to the applicants. Furthermore, there have been two series of judicial review proceedings following the decision to deport. The Government refute the applicants' claim that they have been unduly influenced by false, defamatory reports in the Indian press. This did not form any part of the Government's information. For the Government, the first applicant is not merely a threat to public order, but a terrorist, whose deportation is fully justified on grounds of national security.
95. The revocation of the deportation order and the release of the first applicant back into the community would seriously undermine national security, with the revitalisation of the southern faction of the ISYF, the recurrence of intimidation of moderate Sikhs in the United Kingdom, the commission of further terrorist acts there, the increase in the financing, direction and control of terrorist operations outside the United Kingdom, especially in India, and the encouragement of Sikh terrorists to regard the United Kingdom as a safe haven from which they can continue their terrorist activities. Moreover, the negative effect on the general fight against terrorism cannot be ignored.
96. On the basis of the test laid down in the Vilvarajah judgment (Eur. Court H.R., Vilvarajah and Others judgment of 30 October 1991, Series A no. 215, p. 34, paras. 102-103), the Government contend that the first applicant does not face a real risk of torture or persecution in the Punjab or elsewhere in India for the following reasons:
a) Sikhs are not a persecuted group per se; India has a secular constitution which guarantees freedom of religious belief and practice to all, as well as an independent judiciary;
b) the principal events upon which the first applicant based his claim for asylum occurred in India before 1985;
c) the events of early 1984 should be viewed in the context of a significant increase of terrorist activity in the Punjab in 1984, heightened tension in that region and ill-discipline on the part of the members of the Indian security forces;
d) whilst the Amnesty International reports were substantially accurate in demonstrating that serious human rights violations had been committed by individual members and groups within the Indian security forces in the Punjab, it was not accepted that each and every aspect of those reports was true; the majority of the alleged incidents were not capable of independent or objective verification;
e) furthermore, the Amnesty International reports failed to recognise what, in the Government's view, was the principal reason for the presence of the Indian security forces in the Punjab, namely the combating of serious terrorist activity and the maintenance of law and order;
f) the situation in the Punjab has been positively transformed over the last 18 months, the number of reported deaths in terrorist related incidents having been reduced to a minimum and the democratic processes having been restored; therefore, the material relied on by the applicants, including Amnesty reports, is out of date and no conclusions can be drawn, in relation to the first applicant's present position, from uncorroborated details of cases of individual abuse which occurred before the situation improved;
g) the international criticism of the abuse of detainees and other human rights abuses by law enforcement authorities is now being taken seriously by the Indian Government, which has demonstrated a clear change in attitude, with the creation, for example, of the National Human Rights Commission (see para. 64 above);
h) the Canadian High Commission have followed up recent cases of people returned to India who claimed terrorist involvement and likely ill-treatment as a result, but in no case have such claims been borne out;
i) if the first applicant were returned to India, there is a prospect that he would be arrested and charged with terrorist offences according to Indian law;
j) if so charged, the first applicant would receive full protection by the Indian Government from mistreatment while held in custody; given his profile, there is bound to be considerable press and public interest in him, which reduces the risk of abuse;
k) if the first applicant were not arrested by the Indian authorities on his return to India, but remained at liberty, then he faces a risk (as does any other person in the Punjab) of violence from terrorist outrage;
l) insofar as the first applicant faces a risk from the activities of members of the security forces acting outside the law, such violations of Indian law have not been condoned by the Indian or state Governments, and the first applicant will benefit from the High Commissioner's assurance.
97. An alien on British territory enjoys absolute protection from ill-treatment contrary to Article 3 (Art. 3) of the Convention. However it is argued that Article 3 (Art. 3) is subject to implied limitations, qualifications or derogations, where it is proposed to deport an alien outside the jurisdiction of the Convention for reasons of national security.
98. The Government contend that it has been a constant theme in international jurisprudence over the centuries that the right of an alien to refuge is subject to necessary qualifications. Asylum is to be enjoyed by people "who suffer from undeserved enmity, not those who have done something that is injurious to human society or to other men" (Hugo Grotius "De JureBelli ac Pacis" (1623)). This is reflected in Articles 32 and 33 of the 1951 Convention Relating to the Status of Refugees.
99. The Government submit that Article 3 (Art. 3) was never intended to cover cases of the present kind. Contracting Parties have a right and duty to weigh the risk of torture against the harm caused to national security by the continued presence of an alien on its territory. However this balancing exercise is non-justiciable. It cannot be the role of the national courts or the Convention organs to make any searching judicial scrutiny of national security matters, once raised by the Member State in good faith. It is not possible to evaluate the evidence on which the executive bases its decisions on national security.
100. The Government aver that their decision on national security in relation to the first applicant has been made in good faith and possesses substance. It has been weighed against his personal circumstances.
101. The Commission rejects the Government's challenge to the constant case-law of the Convention organs under Article 3 (Art. 3) of the Convention and reaffirms the following principles:
"103. ... (the) expulsion by a Contracting State of an asylum seeker 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 faced a real risk of being subjected to torture or to inhuman or degrading treatment or punishment in the country to which he was returned. ...
107. ... (2) Further, since the nature of the Contracting State's responsibility under Article 3 (Art. 3) in cases of this kind lies in the act of exposing an individual to the risk of ill-treatment, the existence of the risk must be assessed primarily with reference to those facts which were known or ought to have been known to the Contracting State at the time of the expulsion; the [Convention organs are] not precluded, however, from having regard to information which comes to light subsequent to the expulsion. ...
... (3) Ill-treatment 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.
108. The [Convention organs'] examination of the existence of a risk of ill-treatment in breach of Article 3 (Art. 3) at the relevant time must necessarily be a rigorous one in view of the absolute character of this provision and the fact that it enshrines one of the fundamental values of the democratic societies making up the Council of Europe." (Eur. Court H.R., Vilvarajahand Others judgment of
30 October 1991, Series A no. 215, p.34, para. 103, andp.36, paras. 107-108.)
102. The Commission is further unable to accept the Government's submission that Article 3 (Art. 3) of the Convention may have implied limitations entitling the State to expel a person because of the requirements of national security, notwithstanding the existence of a real risk that the person concerned would be subjected to torture or to inhuman or degrading treatment in the receiving State. As appears from the above passage in the Vilvarajah and Others judgment, the guarantees of Article 3 (Art. 3) of the Convention are of an absolute character, permitting no exception.
103. For the same reason, the Commission cannot accept the Government's submission that under Article 3 (Art. 3) of the Convention the risk of ill-treatment, if the person is to be returned, is to be weighed against the threat to national security if he remains in the deporting State. It is true that in its Soeringjudgment (Eur. Court H.R., Soeringjudgment of 7 July 1989, Series A no. 161, p. 35, para. 89), the Court observed that "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." The Court moreover noted that the danger for a State obliged to harbour a fugitive was a consideration which must "be included among the factors to be taken into account in the interpretation and application of the notions of inhuman and degrading treatment or punishment in extradition cases."
104. Nevertheless, once the risk to the individual of being subjected to such treatment has been established, it is not the case, in the Commission's view, that the individual's background, or the threat posed by him to the national security of the deporting State, can be weighed in the balance so as to reduce the level of protection afforded by the Convention. To this extent the Convention provides wider guarantees than Articles 32 and 33 of the 1951 United Nations Convention Relating to the Status of Refugees. While it is accepted that this may result in undesirable individuals finding a safe haven in a Contracting State, the Commission observes that the State is not without means of dealing with any threats posed thereby, the individual being subject to the ordinary criminal laws of the country concerned.
105. Accordingly, even if the Commission were in a position to assess for itself the strength of the Government's untested allegations about the first applicant's terrorist activities and the threat posed by him to national security, this could not affect the central question which requires determination under Article 3 (Art. 3) of the Convention, namely whether the first applicant has shown substantial grounds for believing that he faces a real risk of being subjected to torture or inhuman or degrading treatment or punishment if returned to India.
106. A further issue is raised as to the point of time at which this risk is to be assessed. It is submitted by the first applicant that his complaint under Article 3 (Art. 3) of the Convention must principally focus on the foreseeable consequences of his deportation to India in June 1992, when the Home Secretary expressed his renewed determination to proceed with the deportation measure. It is pointed out that it was this period which was under scrutiny before the domestic courts. Reliance is placed in this regard on the observations of the Court in the Vilvarajah and Others judgment that the existence of the risk must be assessed primarily with reference to those facts which were known, or ought to have been known, to the Contracting State at the time of the expulsion, even though regard may also be had to information which comes to light thereafter (para. 101 above).
107. The Commission cannot accept this argument. The Convention organs are required to determine whether, if returned, an applicant faces a real risk of treatment contrary to Article 3 (Art. 3) of the Convention. It follows that this assessment must be made at the time, and on the basis of information available, when the deportation is to take place. In this respect the case of Vilvarajah and Others is to be distinguished from the present case since the expulsion had already occurred when the Court was considering those applications. In the present case, although it was the intention to deport the first applicant in June 1992, the deportation did not take place and he continues to remain in custody awaiting deportation. In these circumstances, the Commission must consider whether, on the information currently available, there are substantial grounds to believe that, if deported, the first applicant would face a real risk of being subjected to treatment contrary to Article 3 (Art. 3). In making this assessment, the Commission has nevertheless had regard to all the information made available to it by the parties as to the conditions prevailing in India, and as to the gravity of the risk posed to the first applicant, throughout the period in which he has been threatened with deportation.
108. The Commission notes that the Government now concede that 1992 was a particularly violent year in India, with 4000 deaths having been recorded in terrorist related incidents, mainly in the Punjab. They have also implicitly recognised that human rights abuses by the Indian police were widespread, and that the police were relatively unaccountable for their unlawful acts, a fact which was not helped by the broad powers conferred by the Terrorist and Disruptive Activities (Prevention) Act 1985. This view is strongly reinforced by Amnesty International reports, which are both detailed and specific in their evidence of serious human rights violations against Sikhs by individual members and groups within the Indian security forces. As a prominent Sikh militant, the risk to the first applicant was likely to be more serious than that posed to other members of the Sikh community, a view confirmed by the representations made by Amnesty International to the Home Secretary to the effect that, if sent to India against his will, the first applicant would be at risk of torture, "disappearance" or extrajudicial execution.
109. The Government argue that, whatever the risk posed to the first applicant in 1991 and 1992 when the reports relied on by him were prepared, conditions in the Punjab have improved considerably and the security situation has been transformed, thereby substantially reducing the risk of ill-treatment if the first applicant were now to be returned to India. In particular, reliance is placed on the fact that the number of terrorist related deaths in the Punjab has fallen from 4000 in 1992 to 394 in 1993, and to 51 by the autumn of 1994. Reliance is also placed on what is said to be a definitive change in the Indian Government's attitude towards human rights and to the creation of the National Human Rights Commission ("NHRC"), which had reported positively on the improvement of the situation in the Punjab in 1994.
110. As regards the particular position of the first applicant, the Government submit that, given his high profile, there is bound to be considerable press and public interest in him should he be deported to India, and that this may, in itself, serve to limit any risk of custodial abuse. This is reinforced by the specific undertaking of the Indian Government of June 1992 (para. 38 above) and by the agreement of the United Kingdom Government to return the first applicant to any international airport of his choice in India.
111. On the basis of the material before it, the Commission accepts that there has been an improvement in the conditions prevailing in India and, more especially, in the Punjab. The establishment of the NHRC represents, in the view of the Commission, a particularly significant development for the proper protection of human rights. Nevertheless, the Commission is unable to find in the recent material provided by the Government any solid evidence that the police are now under democratic control or that the judiciary has been able fully to reassert its own independent authority in the Punjab. In this connection, the Commission recalls the complaints recorded in 1994 by the NHRC against the police of arbitrary arrests, disappearances, custodial deaths, fake encounters resulting in killings and the continuing unaccountability of the police, reinforced by their powers under the Terrorist and Disruptive Activities (Prevention) Act 1985 (para. 74 above).
112. As to the specific position of the first applicant, the Commission notes the uncontested claims made by him as to his past experiences in India and the grounds for believing that his return to India in 1992 would have been likely to expose him to serious ill-treatment (para. 26 above). The Commission sees no reason to doubt the continuing validity of those grounds. Further, the Commission is unable to accept the Government's argument that the first applicant's high public profile would be likely to reduce the risk, particularly if he were to return to a part of India other than the Punjab. As a leading Sikh militant, who is suspected of involvement in acts of terrorism, and who is to be deported because of the threat he poses to the security of the United Kingdom, the first applicant is likely to be a person of special interest to the security forces, irrespective of the part of India to which he is returned.
113. As to the express assurance given by the Indian Government that the first applicant would enjoy the same legal protection as any other Indian citizen and would have no reason to expect to suffer ill-treatment of any kind at the hands of the Indian authorities, the Commission is impressed by the good faith shown by the Indian Government in providing such an assurance. Nevertheless, having regard to the current conditions referred to above, the Commission is not satisfied that the assurance provides an effective guarantee for the safety of the first applicant if returned to India.
114. In the light of these considerations, the Commission is of the opinion that substantial grounds have been established for believing that the first applicant would be exposed to a real risk of ill-treatment, contrary to Article 3 (Art. 3) of the Convention, if deported to India.
115. The Commission unanimously concludes that there would be a violation of Article 3 (Art. 3) of the Convention if the first applicant were to be deported to India.
D. As regards Article 5 para. 1 (Art. 5-1) of the Convention
116. Article 5 para. 1 (Art. 5-1) of the Convention, as far as relevant, provides 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 procedure prescribed by law:
... f. the lawful arrest or detention ... of a person against whom action is being taken with a view to deportation ...".
117. The first applicant submits that he has suffered a breach of this provision because for much of the period since
118. The Government contend that the first applicant has been lawfully detained since
119. As to the former complaint, the Commission considers that, in principle, the first applicant has been lawfully detained under Article 5 para. 1 (f) (Art. 5-1-f) of the Convention as a "person against whom action is being taken with a view to deportation". It would be unduly narrow to interpret Article 5 para. 1 (f) (Art. 5-1-f) as confined to cases where the person is detained solely to enable the deportation order to be implemented. The words of the provision are broad enough to cover the case where the person is originally detained with a view to deportation, but challenges that decision or claims asylum, and continues to be detained pending determination of that challenge or claim. The first applicant was detained with a view to deportation in August 1990. The deportation order was made in July 1991. The applicant continues to be detained for the purpose of giving effect to that order. The fact that implementation of the decision to deport was suspended while the Secretary of State considered the asylum request and reconsidered the request after the judicial review proceedings, does not affect the purpose or lawfulness of the detention.
120. The complaint concerning the length of the first applicant's detention was originally made under Article 5 para. 4 (Art. 5-4) of the Convention, but the Commission considers it appropriate to examine it first under Article 5 para. 1. (Art. 5-1) The issue which arises is whether the first applicant's detention has ceased to be justified because the proceedings have not been pursued with the requisite speed (cf. Eur. Court H.R., Kolompar judgment of 24 September 1992, Series A no. 235, p. 55, para. 36). The first applicant has been detained now for nearly five years, albeit partly awaiting the outcome of the Strasbourg proceedings. Nevertheless, an examination of the domestic proceedings does not demonstrate particular diligence: three months elapsed between the grant of leave and the first judicial review proceedings; six months elapsed between the quashing of the first deportation decision and the taking of the second decision; seven months elapsed between the second grant of leave and the second judicial review proceedings, and eight months elapsed between the second judicial review proceedings and the determination of the first applicant's appeal. Therefore the judicial review proceedings alone resulted in a delay of some eighteen months, during the whole of which period the first applicant remained in detention.
121. The Government's submission that, by comparison with the norm, the case was dealt with expeditiously is unconvincing when the person is detained pending deportation, unconvicted and without charge. It is important that proceedings to challenge the decision to deport should be handled with the utmost expedition. It is true that in one sense the first applicant profited from the delay in returning him to India, in the same way as any person profits who is facing deportation or extradition. However, the Commission notes that his complaint is not that he was not sent back more quickly, but rather that he was kept in detention pending the decision being taken as to whether he should or should not be deported. Moreover, it cannot be said that there was any abuse of the judicial review process by the first applicant in order to delay his deportation.
122. In these circumstances, the Commission is of the opinion that the proceedings in the present case were not pursued with the requisite speed and that, therefore, the first applicant's detention ceased to be justified.
123. The Commission unanimously concludes that there has been a violation of Article 5 para. 1 (Art. 5-1) of the Convention by reason of the length of the first applicant's detention.
E. As regards Article 5 para. 4 (Art. 5-4) of the Convention
124. Article 5 para. 4 (Art. 5-4) of the Convention reads as follows:
"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."
125. The first applicant claims under Article 5 para. 4 (Art. 5-4) of the Convention to have been denied an opportunity effectively to contest the lawfulness of his detention before the domestic courts, because of the broad effect of the untested national security allegations against him. This is confirmed by the change in the evidential basis of the case, only put to the Commission in December 1994 and previously not known to the applicants. Hence it could not be challenged and tested by the domestic courts. The first applicant also claims that the judicial review proceedings were not determined speedily.
126. The Government contend that the first applicant had adequate judicial control of the lawfulness of his detention in his two bail applications, which were dealt with by the High Court, and that the proceedings were handled speedily.
127. As to the former complaint, the Commission notes that the issue of the adequacy of the remedies at the disposal of the first applicant was principally addressed by the parties under Article 13 (Art. 13) of the Convention and generally limited to argument about the remedy of judicial review. The Commission is of the opinion that it is more appropriate to consider this issue under Article 13 (Art. 13) of the Convention (see paras. 141-151 below).
128. As to the complaint concerning the speediness of the proceedings, the Commission considers that in view of its conclusion that the duration of the first applicant's detention gave rise to a violation of Article 5 para. 1 (Art. 5-1) of the Convention, it is not necessary to examine this complaint separately under Article 5 para. 4 (Art. 5-4).
129. The Commission concludes, by 16 votes to 1, that it is not necessary to examine the complaints under Article 5 para. 4 (Art. 5-4) of the Convention.
F. As regards Article 8 (Art. 8) of the Convention
130. Article 8 (Art. 8) of the Convention, as far as relevant, provides as follows:
"1. Everyone has the right to respect for his private and family life ... .
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 ...".
131. The applicants allege that the deportation of the first applicant would breach their right to respect for private and family life. They underline the fact that, if there was any cogent evidence against the first applicant of terrorist activities in the United Kingdom, a criminal prosecution could have been instituted against him. The absence of such a prosecution casts grave doubts on the allegations and the material upon which the Home Secretary has based his decisions. This shows that the national security reasons are not serious or compelling. The first applicant is a victim of a sophisticated distortion of information perpetrated by or on behalf of the Indian Government and by untrue Indian newspaper reports. Information which is short of admissible evidence in a criminal case should not form the basis of a decision to expose someone to a risk of torture.
132. The applicants deny that the first applicant's deportation is justified on national security grounds. They rely on the same reasons as those put forward by the first applicant in refuting the national security allegations under Article 3 (Art. 3) of the Convention. The applicants point out that the first applicant has strong, settled ties in the United Kingdom, having lived there for 19 years and founded a family. He should therefore not be treated differently from other Commonwealth citizens who, not so long ago, had a common law right of abode in that country. Reliance is placed on the Beljoudi judgment (Eur. Court H.R., Beldjoudijudgment of 26 March 1992, Series A no. 234-A).
133. The Government accept that the deportation of the first applicant would constitute an interference with the applicants' rights to respect for family life. However, the Government submit that the interference is necessary in the interests of national security, within the meaning of the second paragraph of Article 8 (Art. 8). The Government consider that the Commission is not in a position to evaluate the extreme seriousness of the national security risk posed by the first applicant in the present case. It is further submitted that the strength of the national security case is by no means undermined by the absence of any successful criminal prosecution against the first applicant: much of the material upon which the Home Secretary has been acting is of a confidential nature and could not be deployed in criminal proceedings.
134. The Commission notes that the interference with the applicants' right to respect for private and family life was in accordance with the law and pursued the legitimate aim of protecting the interests of national security. The only remaining issue, therefore, is whether the deportation of the first applicant would be proportionate to that aim and, therefore, "necessary in a democratic society" within the meaning of Article 8 para. 2 (Art. 8-2) of the Convention.
135. The Commission considers that the interference with the Article 8 (Art. 8) rights of the applicants is a serious one. The first applicant has lived lawfully in the United Kingdom for some 19 ½ years and his wife 19 years; their two children were born and brought up in the United Kingdom and are United Kingdom's citizens. Both are still teenagers. The deportation of the first applicant would almost certainly lead to a permanent break up of the family. While the first applicant clearly still has close family links in India, there is a strong risk that if returned he would be arrested and detained, quite possibly for a substantial period without charge or trial and, on any view, with some risk that he would be ill-treated.
136. Whilst the Commission acknowledges that States enjoy a wide margin of appreciation under the Convention where matters of national security are concerned, with possibly lower standards of proof being required under Article 8 (Art. 8) compared to Article 3 (Art. 3), it remains ultimately for the Government to satisfy the Commission that the grave recourse of deportation is in all the circumstances both necessary and proportionate.
137. The Commission is struck by the fact that the first applicant has no criminal record. He has not been convicted of any terrorist crime or indeed of any serious crime, even though it is clear that the allegations made against him would, if proved, constitute serious offences in both the United Kingdom and India. It may be true that terrorist offences are difficult to prove because of the problems of obtaining admissible and usable evidence. Nevertheless, it is apparent from the experience in the United Kingdom that successful prosecutions for terrorist offences are possible.
138. Further, the Commission observes that the matters which are now relied on by the Government, in support of their claim that the first applicant poses a threat to national security, were not placed before the domestic courts, and that the allegations against him remain untested.
139. Having regard to these various considerations, the Commission is of the opinion that, even allowing for the wide margin of appreciation afforded to the Government, the decision to deport the first applicant, if put into effect, would not be proportionate to the legitimate aim pursued, and would not therefore be necessary within the meaning of Article 8 para. 2 (Art. 8-2) of the Convention.
140. The Commission unanimously concludes that there would be a violation of Article 8 (Art. 8) of the Convention if the first applicant is deported to India.
G. As regards Article 13 (Art. 13) of the Convention
141. Article 13 (Art. 13) of the Convention reads as follows:
"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."
142. The applicants maintain that they had no effective remedy for their Convention claims. They contend that the evaluation by the European Court of Human Rights of the efficacy of judicial review in the Vilvarajah case is flawed, but that anyway their application is distinguishable.
143. It is contended that English courts have no jurisdiction to establish the existence of a risk of torture in the receiving State. The courts may not go beyond the terms of the immigration rules which make no reference to the Convention or the UN Convention against Torture. The national security allegations reduce even further the review which could be made by the domestic courts. Significantly, since the Vilvarajahcase, a right of appeal to an independent adjudicator has been created by the Asylum and Immigration Appeals Act 1993 for those refused asylum, except in national security cases of the present kind.
144. The amplified national security case presented to the Commission by the Government in their observations on
145. The Commission has been given data which was not before the national courts. In the applicants' submission, it cannot be said that the Members of the Commission could be trusted with material not suitable for disclosure to such courts. The nature of the material disproves any overriding question of confidentiality. The national courts and the applicants appear to have been misled as to the limits of disclosure and deprived of material which could have been considered domestically.
146. The Government rely on the Court's jurisprudence in the case of Soering and Vilvarajah for the proposition that judicial review provides an adequate remedy in cases of the present kind (Eur. Court H.R., Soering judgment of 7 July 1989, Series A no. 161, and Vilvarajah and Others judgment of 30 October 1991, Series A no. 215).
147. The Commission is required to consider whether the applicants had an effective remedy, by way of judicial review, in respect of their claims under the Convention, that is, the first applicant's claims under Articles 3 and 5 (Art. 3-5) of the Convention, and all the applicants' claims under Article 8 (Art. 8).
148. The Commission notes that in its Vilvarajah and Others judgment, the Court held that the scope of the domestic courts' review of the Home Secretary's refusal to grant asylum was sufficiently wide to satisfy the requirements of Article 13 (Art. 13) of the Convention (above mentioned Vilvarajahand Others judgment, pp. 39-40, paras. 123-127).
149. However, the present case is distinguishable from that of Vilvarajah and others, having regard to the national security claim. As appears from the Court of Appeal's judgment (paras. 43-46 above), where national security considerations are invoked as a ground for the deportation decision, the powers of review of domestic courts are limited to determining, first, whether the decision of the Home Secretary that the deportation was required for reasons of national security was irrational, perverse or based on a misdirection and, secondly, whether there was sufficient evidence that the Home Secretary balanced the gravity of the national security risk against all other circumstances, including the likely risk of persecution if the person were deported.
150. As the Court of Appeal pointed out, the scrutiny of the claim that a person should be deported in the interests of national security may in practice be defective or incomplete if all the relevant facts are not before the courts. This deficiency is illustrated by the facts of the present case, in that the domestic courts did not even have available to them the further information which has been put before the Commission concerning the perceived threat posed by the first applicant to the national security of the United Kingdom.
151. Furthermore, even when the relevant facts are before the courts, they are not empowered to carry out their own assessment of the respective risks, but are confined to reviewing whether there is sufficient evidence that the necessary balancing exercise has been carried out by the Home Secretary. Provided there is such evidence, the courts are powerless to interfere, however strong the risk of treatment contrary to Article 3 (Art. 3) of the Convention which is faced by the applicant if returned to the country in question.
152. In the Commission's opinion, the power of review by United Kingdom courts when national security is invoked is too restrictive to satisfy the requirements of Article 13 (Art. 13) of the Convention.
153. The Commission unanimously concludes that there has been a violation of Article 13 (Art. 13) of the Convention.
154. The Commission unanimously concludes that there would be a violation of Article 3 (Art. 3) of the Convention if the first applicant is deported to India (para. 115 above).
155. The Commission unanimously concludes that there has been a violation of Article 5 para. 1 (Art. 5-1) of the Convention by reason of the length of the first applicant's detention (para. 123 above).
156. The Commission concludes, by 16 votes to 1, that it is not necessary to examine the complaints under Article 5 para. 4 (Art. 5-4) of the Convention (para. 129 above).
157. The Commission unanimously concludes that there would be a violation of Article 8 (Art. 8) of the Convention if the first applicant is deported to India (para. 140 above).
158. The Commission unanimously concludes that there has been a violation of Article 13 (Art. 13) of the Convention (para. 151 above).
Secretary to the Commission President of the Commission
(H.C. KRÜGER) (C.A. NØRGAARD)
PARTIALLY DISSENTING OPINION OF MR. TRECHSEL
While I am generally in agreement with the majority of the Commission, I voted against the conclusion set out in para. 129, according to which it was not necessary to examine the complaints under Article 5 para. 4 of the Convention.
In my view the finding that the first applicant's detention was not in conformity with the requirements of Article 5 para.1 of the Convention does not cover the issue of habeas corpus proceedings. The need for such a control is particularly acute whenever problems arise under the first paragraph of Article 5.
I also note that the opinion expressed by the majority is hardly in conformity with the Court's case-law. In this respect I refer to the Bouamar judgment (Eur. Court H.R., Bouamar judgment of 29 February 1988, Series A no. 129) where violations both of Article 5 paras. 1 and 4 of the Convention were found.
Having regard to the facts of the present case, it must be that Article 5 para. 4 was violated for the same reasons as those put forward in this Report with regard to the violation of Article 13 of the Convention.
HISTORY OF THE PROCEEDINGS
27.07.93 Introduction of application
04.08.93 Registration of application
Examination of admissibility
30.07.93 Rule 36 granted
08.09.93 Commission's decision to communicate the case to the respondent Government and to invite the parties to submit observations on admissibility and merits
23.12.93 Government's observations
07.04.94 Applicants' observations in reply
16.05.94 Commission's decision to hold a hearing
22.07.94 President's grant of legal aid
01.09.94 Hearing on admissibility and merits. Commission's decision to declare application in part admissible and in part inadmissible
Examination of the merits
12.09.94 Decision on admissibility transmitted to parties. Invitation to parties to submit further observations on the merits
28.10.94 Applicants' observations
23.12.94 Government's observations
14.01.95 Commission's consideration of state of proceedings
31.03.95 Applicants' further observations
20.05.95 Commission's consideration of state of proceedings
27.06.95 Commission's deliberations on the merits, final vote and consideration of text of the Report. Adoption of Report