Relatively Absolute? The Undermining of Article 3 ECHR in Ahmad v UK

Abstract

The recent decision of the European Court of Human Rights in Ahmad v UK dangerously undermines the well‐established case law of the Court on counter‐terrorism and non‐refoulement towards torture, inhuman and degrading treatment or punishment. Although ostensibly rejecting the ‘relativist’ approach to Article 3 ECHR adopted by the House of Lords in Wellington v Secretary of State for the Home Department, the Court appeared to accept that what is a breach of Article 3 in a domestic context may not be a breach in an extradition or expulsion context. This statement is difficult to reconcile with the jurisprudence constante of the Court in the last fifteen years, according to which Article 3 ECHR is an absolute right in all its applications, including non‐refoulement, regardless of who the potential victim of torture, inhuman or degrading treatment is, what she may have done, or where the treatment at issue would occur.

The Orwellian Reality of Counter-Terrorism Measures Under The ECHR

“…126 This is much to the appeasement of sovereign States who believe themselves to be in a better position to assess emergency situations than a court in Strasbourg, as it is their domaine reserve. 127 Democratically elected national governments should possess responsibility for the lives of their citizens and should ideally be supervised by the ECtHR, which can assess whether a particular measure invoked under the derogation clause is proportionate. The Court assesses proportionality by considering the nature of the rights affected, whether they are absolute or fundamental, the severity of the restriction and the length of the emergency situation.…”

“…Ireland v UK was a landmark judgment, 131 resulting in the ECtHR considering that five techniques amounted to a violation of Article 3 ECHR, 132 although they were not considered to be torture, but rather inhuman and degrading treatment. 133 The Court created a delineation between degrading treatment and torture, thereby creating a potentially dangerous flexibility regarding the margin of appreciation granted to the UK under Article 15 ECHR, 134 which could potentially lead to allowing brutal methods which cannot quite be considered torture. Although a wide margin of appreciation is granted, power is not unlimited.…”

“…The affected individual also plays an important role in the proportionality assessment of whether a punishment constitutes a violation of Article 3. 156 For instance, in the DD case, 157 the British court took the applicant's mental state due to PTSD into account when assessing whether a TPIM, 158 entailing numerous movement restrictions, equaled torture. Nevertheless, the Court reasoned that in order to determine whether something is torture, one must assess the impact of the measure on the individual against the measure's proportionality pursuant to national security.…”

Is the Prohibition Against Torture and Cruel, Inhuman and Degrading Treatment Absolute in International Human Rights Law? A Reply to Steven Greer

“…95 The particular comment highlights that the relativism involved in paragraph 177 of Ahmad amounted to an inappropriate specification of Article 3 of the ECHR, and was in fact displacement through the back door. 96 As concerns the suggestion that some confuse absoluteness with nonderogability, I only note that non-derogability is an aspect of absoluteness: that is, of the non-displaceability of the prohibition of torture and CIDT. It is therefore a necessary, but not sufficient, 97 as Greer rightly observes, aspect of the absolute character of the prohibition at human rights law.…”

Inhuman and Degrading Punishment, Dignity, and the Limits of Retribution

“…In particular, many extradition requests from the United States often carry the prospect of discretionary or mandatory life sentences, as was the situation in cases such as Harkins and Babar Ahmad (the outcomes of which may appear problematic after this Grand Chamber judgment). Subject to some problematic dicta of the Fourth Section of the ECtHR in Harkins and Babar Ahmad , to the effect that what may be inhuman in ECHR States may not be inhuman outside ECHR States, the incompatibility of purely retributive whole life terms with Article 3 of the ECHR could operate to bar a number of extraditions to the US and elsewhere, under the Chahal and Saadi principles.…”