2.1.2. extradition and the principle of non-refoulement: ecthr jurisprudence “No one may be removed, expelled or extradited to a State where there is a serious risk that he or she would be subjected to the death penalty, torture or other inhuman or degrading treatment or punishment.” Art. 19(2) CFREU Understanding the principle of non-refoulement The main bodies tasked with the promotion and protection of human rights in Europe rests with the Council of Europe, its “flagship” the European Convention on Human Rights and its monitoring body the ECtHR.93 All members of the EU are also parties to the ECHR, and to the jurisdiction of the ECtHR. While, unlike in the CFREU, the principle of non-refoulement is not explicit, it is regulated in the ECHR, the ECtHR has often been called upon to decide on issues surrounding the extradition of individuals. The central issue is whether a State assumes responsibility when extraditing or surrendering a person to a situation which would violate Article 3 ECHR. In the landmark judgment of Soering v UK, the ECtHR, for the first time held that the act of extradition of an individual was a violation of Article 3 ECHR and acknowledged the principle of non-refoulement.94 This decision related to the extradition of an individual, who challenged a request for extradition to the US, where if convicted he would be subjected to what has become known as ‘death row phenomenon’. In that case, the Court found: “The decision by a Contracting State to extradite a fugitive may give rise to an issue under Article 3, and hence engage the responsibility of that State under the Convention, where substantial grounds have been shown for believing that the person concerned, if extradited, faces a real risk of being subjected to torture or to inhuman or degrading treatment or punishment in the requesting country.”95 The principles elaborated in Soering v UK have been reiterated in a series of ECtHR judgments, notably in relation to the deportation of aliens to their country of origin.96 In Saadi v Italy,97 the Court elaborated upon principles concerning the removal of a person from a State, including that it is for the applicants to prove that if sent to another State there would be a real risk that they would be exposed to treatment contrary to Article 3 ECHR. Furthermore, that a Court must examine the foreseeable consequences on the basis of both the general situation and the personal circumstances. The Court found that all relevant material should be taken into account, and that reports from independent human rights organisations or government sources are important to inform deliberations. Finally, where applicants can show that they are members of a particular group systematically exposed to a practice of ill-treatment, it is sufficient to prove membership of this group.98 Moreover, the Court reiterated the absolute nature of the prohibition which also applies to the non-refoulement principle rejecting any suggestion of a flexible application even when dealing with an alleged terrorist.99 93 Manfred Nowak, ´An Introduction to the Human Rights Mechanisms of the Council of Europe´ in Manfred Nowak, Karolina M. Januszewski, Tina Hofstätter (eds.), All Human Rights for All. Vienna Manual on Human Rights (1st edn, NWV, 2012) p.121. 94 Soering v UK, Application No 14038/88 (ECtHR, 7 July 1989). 95 Soering v UK, Application No 14038/88 (ECtHR, 7 July 1989) para. 91. 96 For example see Chahal v UK, Application No 22414/93 (ECtHR, 11 Nov. 1996); Mamatkulov and Askaron v. Turkey, Application Nos. 46827/99 and 46951/99 (ECtHR, 4 Feb. 2005). 97 Saadi v Italy, Application No. 37201/06 (ECtHR, 28 Feb. 2008). 98 Ibidem, paras. 128-133. 99 Ibidem, para. 140. 29