expulsion. In this instance, the Court concluded that there were no substantial
grounds for believing in the existence of a real risk.
The European Regional System
2
This approach to assessing the level of risk was applied in Vilvarajah v UK,416
in which the Court noted that its “examination of the existence of a risk of illtreatment… 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.”417 That case concerned an expulsion
which had already occurred, thus the relevant time for assessing the level of
risk was the time when the expulsion occurred. On the other hand, where an
expulsion has not yet occurred, the relevant time for assessing the risk would
be the date on which the Court considers the case, therefore evidence which
had come to light since the case was first reviewed could be considered.418
In Chahal v UK, the applicant was threatened with expulsion because he was
suspected of involvement in acts of terrorism. The Court stated that, while it
was aware of the difficulties facing States in protecting communities from acts
of terrorism, the European Convention prohibits torture (and inhuman or
degrading treatment or punishment) in absolute terms, irrespective of the victim’s conduct. Accordingly, national interests could not override the interests
of the individual where substantial grounds exist for believing that he would
be subjected to ill-treatment if expelled.419
In Jabari v Turkey,420 Mrs. Jabari alleged that, were she to be expelled from
Turkey to Iran, she would face a real risk of torture due to the nature of the
penal sanctions imposed upon women for adultery, which included stoning.
As noted above, a State has a duty to protect individuals from acts contrary
to Article 3 when returning that individual, even when the receiving State
imposes a sanction which is considered “lawful” under its domestic law. In
this instance, the Court held that Mrs. Jabari faced a real risk of treatment
contrary to Article 3.421
The Court has developed the scope of the obligation not to expel persons to
States where they may face ill-treatment to include ill-treatment caused by a
lack of adequate medical care in the receiving State, in cases where the return Vilvarajah and Others v UK (1991), op. cit.
Ibid, §108, citing Soering v UK (1989), op. cit., §88.
418
Chahal v UK (1996), op. cit., §97.
419
Ibid. §78–9.
420
Jabari v Turkey (2000), op. cit.
421
Ibid. §41–42.
416
417
86
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