Issue 51 November 2010 - Human Rights Stop Press: Asylum, Early Release

 

The Strasbourg Court continues to produce challenging jurisprudence. In the first case brought against the United Kingdom the Court has established that differences in sentencing regimes which lack objective justification can be discriminatory and in breach of arts 5 and 14. Given the growing complexity of modern criminal sentencing law the case is a reminder that statutory schemes must be fair as between prisoners who are in comparable situations.

Asylum cases continue to come to Strasbourg. In two cases involving the Netherlands and Sweden, the Court found that to return asylum seekers to Libya and Afghanistan would breach their art.3 rights. The cases are important in a number of respects. First, in the Dutch case, the Court rejected an intervention made by a number of Governments, including that of the United Kingdom, which argued that the risk of a breach of art.3 had to be weighed against the reason for removal where, in particular, national security concerns were said to be the reason for removal. In the Swedish case, the Court appears to have established that Afghan women who return to that country without the protection of a male are likely to face persecution. One can see the potential breadth of that approach in asylum claims made by women from that country.

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In Clift v United Kingdom (application no.7205/07), the Court held that an early release scheme discriminated in breach of arts 5 and 14 against a prisoner serving a long, fixed term sentence. In this case the applicant was sentenced to 18 years’ imprisonment in 1994 for serious crimes including attempted murder. In 2002 he became eligible for release on parole and the Parole Board recommended his release. Under the legislation applicable at the time, prisoners serving fixed-term sentences of imprisonment of 15 years or more were required to secure, in addition to a positive recommendation from the Parole Board, the approval of the Secretary of State for early release. Prisoners serving fixed-term sentences of less than 15 years and those serving life sentences were entitled to early release upon the positive recommendation of the Parole Board only; no further approval was required. The Secretary of State rejected the Parole Board’s recommendation in Mr Clift’s case, finding that to release him would pose an unacceptable risk to the public. He was finally released on licence in 2004, after the Secretary of State approved release following a further positive recommendation by the Parole Board at that time. In domestic proceedings culminating in an appeal to the House of Lords, the English courts did not find the difference in treatment to be the result of Mr Clift’s “status”, such as to fall within the prohibition on discrimination under art.14.

In coming to a different conclusion the Strasbourg Court underlined that the protection under art.14 of the Convention was not limited to different treatment based on characteristics which were personal in the sense of being innate or inherent. Moreover, the term “other status” had been given a wide meaning in the Court’s case-law. Mr Clift did not allege a difference of treatment based on the gravity of the offence he had committed, but one based on his position as a prisoner serving a fixed-term sentence of more than 15 years. While sentence length bore some relationship to the perceived gravity of the offence, a number of other factors could also be relevant, including the sentencing judge’s assessment of the risk posed by the applicant to the public. Where an early release scheme applied differently to prisoners depending on the length of their sentences, there was a risk that, unless objectively justified, it would run counter to the need to ensure protection of the individual from arbitrary detention under art.5.The Court concluded that MrClift did enjoy “other status” for the purposes of art.14.

In order for an issue to arise under art.14 there had to be a difference in the treatment of people in analogous or relevantly similar - but not necessarily identical - situations. The Court noted that the failure to approve the early release of a prisoner was not intended to constitute further punishment but to reflect the assessment that the prisoner posed an unacceptable risk upon release. As regards the risk assessment of a prisoner eligible for early release, no distinction could be drawn between long-term prisoners serving less than 15 years, long-term prisoners serving 15 years or more and life prisoners. The methods of assessing risk were, in principle, the same for all categories of prisoners. The Court therefore concluded that Mr Clift could claim to be in an analogous position to long-term prisoners serving less than 15 years and life prisoners.

The Court accepted that differences in treatment between groups of prisoners might be justified in principle if they pursued the legitimate aim of protecting the public, provided that it could be demonstrated that those to whom more stringent early release regimes applied posed a higher risk to the public upon release. The imposition of a fixed-term sentence rather than a life sentence appeared to indicate that Mr Clift posed a lower and not a higher risk when released. It was therefore difficult to see any objective justification for a system in which prisoners serving fixed-term sentences of 15 years or more were subject to more stringent conditions for early release than life prisoners.

As regards the difference in treatment between those serving more and those serving less than 15 years, the Court accepted that such a distinction might not automatically be discriminatory. However, any distinction in treatment was only justified where it achieved the legitimate aim pursued. In this case, the Government had failed to demonstrate how the approval of the Secretary of State required for certain groups of prisoners addressed concerns for public security. In those circumstances, the Court considered that the early release scheme to which Mr Clift had been subject lacked objective justification. The Court therefore unanimously concluded that there had been a violation of art.5 in conjunction with art.14.

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In A v Netherlands (application no.4900/06) and N v Sweden (application no.23505/09), the Court found two violations of art.3 but no violation of art.13 if the applicants were expelled or deported to their country of origin. The first applicant, A, is a Libyan national, born in 1972, living in the Netherlands. The third applicant, N, is an Afghan national who lives in Sweden. The cases concerned the applicants’ complaints that they would risk ill-treatment if expelled or deported to their country of origin. A entered the Netherlands in November 1997 and applied, unsuccessfully, for asylum as he feared persecution in Libya for his involvement in a clandestine, nameless opposition group. Following a report by theDutch General Intelligence and Security Service, he was arrested in August 2002 on suspicion of belonging to a criminal organisation conducting a holywar against the Netherlands. He was acquitted of all charges but an exclusion order was imposed on him in the Netherlands as he was found to represent a danger to national security.

N applied for asylum, together with her husband X, three days after their arrival in Sweden, in August 2004. They claimed that they had been persecuted in Afghanistan because X had been a politically active member of the communist party. The asylum application was rejected. N appealed claiming that, as she had in the meantime separated from her husband, she would risk social exclusion and possibly death if she returned to Afghanistan. Her appeal was also rejected. She applied for a residence permit three times, as well as for divorce from X, submitting that she was at an ever-heightened risk of persecution in Afghanistan, as she had started an extra-marital relationship with a man in Sweden which was punishable by long imprisonment or even death in her country of origin. All her applications were rejected. The applicants complained that, if expelled or deported to their country of origin, they would be at risk of being subjected to inhuman and degrading treatment in breach of art.3. A further complained under art.13 that they could not effectively challenge the ground used - that they were a threat to national security - for the exclusion orders against them.

In A v Netherlands, the Governments of Lithuania, Portugal, Slovakia and the United Kingdom challenged what they considered to be the rigid way in which the Court systematically applied the absolute prohibition on ill-treatment. They submitted that, by not allowing the risk of such treatment of the individual in the country of destination to be weighed against the reasons for expulsion, even national security, the Court had caused the States bound by the Convention many difficulties, by preventing them in practice from enforcing expulsion measures. Those four Governments proposed that, if such a State presented evidence that the individual was a threat to national security, in order to trigger the protection of the Convention under art.3, that individual should have to show that “it was more likely than not” that they would be ill-treated in the receiving country.

Several international human rights organisations strongly supported the Court’s approach to art.3. According to the AIRE Centre, the rule prohibiting expulsion to face torture or ill-treatment had become a norm of international law. Amnesty International and others reiterated that the burden of proof could not rest with the individual alone, especially as they did not always have access to the same information as the State. Also, diplomatic assurances did not suffice to offset an existing risk of torture. It was enough for the applicant to make an arguable case, leaving the expelling State to refute the claims. According to the organisations Liberty and Justice, any change would amount to a dilution of a fundamental human right which would have a long-term corrosive effect on democratic values and the Convention.

The Court reiterated that the prohibition of ill-treatment under art.3 was absolute, that is to say it made no provision for exception. It further noted that it was not possible to weigh the risk of ill-treatment against the reasons put forward for the expulsion in order to determine whether the responsibility of a State was engaged under art.3. In addition, the existence of domestic laws and accession to international human rights treaties by a State which was not party to the Convention was not by itself sufficient to ensure adequate protection from ill-treatment. That was especially the case where reliable sources had reported practices,  manifestly contrary to the Convention, which were actively pursued or tolerated by the authorities.

The Court then noted that the overall human rights situation in Libya continued to give rise to serious concerns. Reports showed that detainees in Libya were at a real risk of being tortured or otherwise ill-treated. Although A had been acquitted in the Netherlands, his case had been broadly covered in the media and the Libyan authorities had been informed that he had been placed in aliens’ detention for removal purposes. Consequently, it was likely that - once in Libya A would be detained and questioned, and that he risked ill-treatment. Accordingly, the Court concluded that A’s expulsion to Libya would breach art.3. The Court found that there had been no violation of art.13 as A had had available an effective remedy in respect of his grievance under art.3. In N v Sweden, while being aware of reports of serious human rights violations in Afghanistan, the Court did not find that they showed, on their own, that there would be a violation of the Convention if N were to return to that country.

Examining N’s personal situation, however, the Court noted that women were at a particularly heightened risk of ill-treatment in Afghanistan if they were perceived as not conforming to the gender roles ascribed to them by society, tradition or the legal system there. The mere fact that N had lived in Sweden might well be perceived as her having crossed the line of acceptable behaviour. The fact that she wanted to divorce her husband, and in any event did not want to live with him any longer, might result in serious life-threatening repercussions upon her return to Afghanistan. Among other things, the Court noted that a recent law, the Shiite Personal Status Act of April 2009, required women to obey their husbands’ sexual demands and not to leave home without permission. Reports had further shown that around 80 percent of Afghani women were affected by domestic violence, acts which the authorities saw as legitimate and therefore did not prosecute. Unaccompanied women, or women without a male “tutor”, faced continuous severe limitations to having a personal or  professional life, and were doomed to social exclusion. They also often plainly lacked the means for survival if not protected by a male relative. Consequently, the Court found that if N was deported to Afghanistan, Sweden would be in violation of art.3.