COURT (GRAND CHAMBER)
CASE OF CHAHAL v. THE UNITED KINGDOM
(Application no. 22414/93)
15 November 1996
In the case of Chahal v. the United Kingdom,
The European Court of Human Rights, sitting, in pursuance of Rule 51 of Rules of Court A, as a Grand Chamber composed of the following judges:
Mr R. Ryssdal, President,
Mr R. Bernhardt,
Mr F. Gölcüklü,
Mr F. Matscher,
Mr L.-E. Pettiti,
Mr A. Spielmann,
Mr J. De Meyer,
Mr N. Valticos,
Mr S.K. Martens,
Mrs E. Palm,
Mr J.M. Morenilla,
Sir John Freeland,
Mr A.B. Baka,
Mr G. Mifsud Bonnici,
Mr J. Makarczyk,
Mr D. Gotchev,
Mr P. Jambrek,
Mr U. Lohmus,
Mr E. Levits,
and also of Mr H. Petzold, Registrar, and Mr P.J. Mahoney, Deputy Registrar,
Having deliberated in private on 29 March, 30 August and 25 October 1996,
Delivers the following judgment, which was adopted on the last-mentioned date:
The Government's application referred to Article 48 (art. 48) and the Commission's request referred to Articles 44 and 48 (art. 46, art. 48) and to the declaration whereby the United Kingdom recognised the compulsory jurisdiction of the Court (Article 46) (art. 46). The object of the application and the request was to obtain a decision as to whether the facts of the case disclosed a breach by the respondent State of its obligations under Articles 3, 5 paras. 1 and 4, 8 and 13 of the Convention (art. 3, art. 5-1, art. 5-4, art. 8, art. 13).
(a) for the Government
Mr I. Christie, Foreign and Commonwealth Office, Agent,
Sir Nicholas Lyell QC, MP, Attorney-General,
Mr J. Eadie, Counsel,
Mr C. Whomersley, Legal Secretariat to the Law Officers,
Mr D. Nissen, Home Office,
Mr C. Osborne, Home Office,
Mr D. Cooke, Home Office,
Mr J. Crump, Home Office,
Mr J. Marshall, Foreign and Commonwealth Office, Advisers;
(b) for the Commission
Mr N. Bratza, Delegate;
(c) for the applicants
Mr N. Blake QC, Counsel,
Mr D. Burgess, Solicitor.
The Court heard addresses by Mr Bratza, Mr Blake and Sir Nicholas Lyell.
AS TO THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
A. The applicants
The second applicant, Darshan Kaur Chahal, is also an Indian citizen who was born in 1956. She came to England on 12 September 1975 following her marriage to the first applicant in India, and currently lives in Luton with the two children of the family, Kiranpreet Kaur Chahal (born in 1977) and Bikaramjit Singh Chahal (born in 1978), who are the third and fourth applicants. By virtue of their birth in the United Kingdom the two children have British nationality.
B. Background: the conflict in Punjab
C. Mr Chahal's visit to India in 1984
He was able to return to the United Kingdom on 27 May 1984, and has not visited India since.
D. Mr Chahal's political and religious activities in the United Kingdom
E. Mr Chahal's alleged criminal activities
In 1986 he was arrested and questioned twice (once under the PTA), because he was believed to be involved in an ISYF conspiracy to murder moderate Sikhs in the United Kingdom. On both occasions he was released without charge. Mr Chahal denied involvement in any of these conspiracies.
He was subsequently acquitted of charges arising out of the Belvedere disturbance.
On 27 July 1992 the Court of Appeal quashed the two convictions on the grounds that Mr Chahal's appearance in court in handcuffs had been seriously prejudicial to him.
F. The deportation and asylum proceedings
1. The notice of intention to deport
A notice of intention to deport was served on the latter on 16 August 1990. He was then detained for deportation purposes pursuant to paragraph 2 (2) of Schedule III of the Immigration Act 1971 (see paragraph 64 below) and has remained in custody ever since.
2. Mr Chahal's application for asylum
He claimed that he would be subjected to torture and persecution if returned to India, and relied upon the following matters, inter alia:
(a) his detention and torture in Punjab in 1984 (see paragraph 18 above);
(b) his political activities in the United Kingdom and his identification with the regeneration of the Sikh religion and the campaign for a separate Sikh State (see paragraphs 19-22 above);
(c) his links with Sant Bhindranwale and Jasbir Singh Rode; (see paragraphs 17 and 20 above);
(d) evidence that his parents, other relatives and contacts had been detained, tortured and questioned in October 1989 about Mr Chahal's activities in the United Kingdom and that others connected to him had died in police custody;
(e) the interest shown by the Indian national press in his alleged Sikh militancy and proposed expulsion from the United Kingdom;
(f) consistent evidence, including that contained in the reports of Amnesty International, of the torture and murder of those perceived to be Sikh militants by the Indian authorities, particularly the Punjab police (see paragraphs 55-56 below).
"not aware of any outstanding charges either in India or elsewhere against [Mr Chahal] and on the account [Mr Chahal] has given of his political activities, the Secretary of State does not accept that there is a reasonable likelihood that he would be persecuted if he were to return to India. The media interest in his case may be known by the Indian authorities and, given his admitted involvement in an extremist faction of the ISYF, it is accepted that the Indian Government may have some current and legitimate interest in his activities".
The Home Secretary did not consider that Mr Chahal's experiences in India in 1984 had any continued relevance, since that had been a time of particularly high tension in Punjab.
3. The advisory panel
(a) Mr Chahal had been the central figure in directing the support for terrorism organised by the London-based faction of the ISYF which had close links with Sikh terrorists in the Punjab;
(b) he had played a leading role in the faction's programme of intimidation directed against the members of other groups within the United Kingdom Sikh community;
(c) he had been involved in supplying funds and equipment to terrorists in Punjab since 1985;
(d) he had a public history of violent involvement in Sikh terrorism, as evidenced by his 1986 convictions and involvement in disturbances at the Belvedere gurdwara (see paragraph 24 above). These disturbances were related to the aim of gaining control of gurdwara funds in order to finance support and assistance for terrorist activity in Punjab;
(e) he had been involved in planning and directing terrorist attacks in India, the United Kingdom and elsewhere.
Mr Chahal was not informed of the sources of and the evidence for these views, which were put to the advisory panel.
(a) the southern branch of the ISYF had a membership of less than 200 and was non-violent both in terms of its aims and history;
(b) the ISYF did not attempt to gain control of gurdwaras in order to channel funds into terrorism; this was a purely ideological struggle on the part of young Sikhs to have gurdwaras run according to Sikh religious values;
(c) Mr Chahal denied any involvement in the disturbances at the East Ham and Belvedere gurdwaras (see paragraph 24 above) or in any other violent or terrorist activity in the United Kingdom or elsewhere.
4. Judicial review
"We have noted your request to have a formal assurance to the effect that, if Mr Karamjit Singh Chahal were to be deported to India, he would enjoy the same legal protection as any other Indian citizen, and that he would have no reason to expect to suffer mistreatment of any kind at the hands of the Indian authorities.
I have the honour to confirm the above."
The court held that the combined effect of the 1951 Convention and the Immigration Rules (see paragraphs 61-62 below) was to require the Home Secretary to weigh the threat to Mr Chahal's life or freedom if he were deported against the danger to national security if he were permitted to stay. In the words of Lord Justice Nolan:
"The proposition that, in deciding whether the deportation of an individual would be in the public good, the Secretary of State should wholly ignore the fact that the individual has established a well-founded fear of persecution in the country to which he is to be sent seems to me to be surprising and unacceptable. Of course there may very well be occasions when the individual poses such a threat to this country and its inhabitants that considerations of his personal safety and well-being become virtually irrelevant. Nonetheless one would expect that the Secretary of State would balance the risks to this country against the risks to the individual, albeit that the scales might properly be weighted in favour of the former."
The Home Secretary appeared to have taken into account the evidence that the applicant might be persecuted and it was not possible for the court to judge whether his decision to deport was irrational or perverse because it did not have access to the evidence relating to the national security risk posed by Mr Chahal. As Lord Justice Neill remarked:
"The court has the right to scrutinise a claim that a person should be deported in the interests of national security but in practice this scrutiny may be defective or incomplete if all the relevant facts are not before the court."
In the absence of evidence of irrationality or perversity, it was impossible under English law to set aside the Home Secretary's decision (see paragraph 66 below).
"The applicant was detained in August 1990 and served with notice of intention to deport because the then Secretary of State was satisfied that he represented a substantial threat to national security. The Secretary of State remains satisfied that such a threat persists ... Given the reasons for the applicant's deportation, the Secretary of State remains satisfied that his temporary release from detention would not be justified. He has concluded the applicant could not be safely released, subject to restrictions, in view of the nature of the threat posed by him."
Judgment was given on 10 November 1995
(R. v. Secretary of State for the Home Department, ex parte Chahal, unreported). Mr Justice MacPherson in the Divisional Court rejected the application for habeas corpus, on the ground that "the detention per se was plainly lawful because the Secretary of State [had] the power to detain an individual who [was] the subject of a decision to make a deportation order". In connection with the application for judicial review of the Secretary of State's decision to detain Mr Chahal, the Judge remarked:
"I have to look at the decision of the Secretary of State and judge whether, in all the circumstances, upon the information available, he has acted unlawfully, or with procedural impropriety, or perversely to the point of irrationality. I am wholly unable to say that there is a case for such a decision, particularly bearing in mind that I do not know the full material on which the decisions have been made ... [I]t is obvious and right that in certain circumstances the Executive must be able to keep secret matters which they deem to be necessary to keep secret ... There are no grounds, in my judgment, for saying or even suspecting that there are not matters which are present in the Secretary of State's mind of that kind upon which he was entitled to act ..."
G. Current conditions in India and in Punjab
1. Material submitted by the Government
2. The Indian National Human Rights Commission reports
"The complaints of human rights violations made to the Commission fall broadly into three categories. Firstly, there were complaints against the police, of arbitrary arrests, disappearances, custodial deaths and fake encounters resulting in killings ...
There was near unanimity in the views expressed by the public at large that terrorism has been contained ... [A] feeling was now growing that it was time for the police to cease operating under the cover of special laws. There were very strong demands for normalising the role and functioning of the police and for re-establishing the authority of the District Magistrates over the police. The impression that the Commission has gathered is that ... the Magistracy at District level is not at present in a position to inquire into complaints of human rights violations by the police. In the public mind there is a prevailing feeling of the police being above the law, working on its own steam and answerable to none ... The Commission recommends that the Government examine this matter seriously and ensure that normalcy is restored ..."
3. Reports to the United Nations
For example, in his 1995 report, the Special Rapporteur on torture commented on the practice of torture in police custody:
"It is apparent that few incidents, in what is credibly alleged to be a widespread, if not endemic, phenomenon are prosecuted and even fewer lead to conviction of the perpetrators. It is to be noted that very many cases that come to the attention of the Special Rapporteur are those that result in death, in other words, those where torture may have been applied with the most extreme results. This must be a minority of cases of torture in the country [India]."
4. The United States' Department of State reports
"Killings of Sikh militants by police in armed encounters appear to be virtually at an end. During the first eight months of , only two persons were killed in police encounters. Attention was focused on past abuses in Punjab by press reports that hundreds of bodies, many allegedly those of persons who died in unacknowledged police custody, were cremated as 'unclaimed' during 1991-1993 or discovered at the bottom of recently drained canals."
5. The Immigration Appeal Tribunal
"We should say that we do not accept [the representative of the Home Office's] view of this document, that it was more probably based on imaginative journalism than on fact. In our view, it affords valuable retrospective corroboration of the material set out above, demonstrating that the Punjab police are very much a law unto themselves, and are ready to track down anyone they regard as subversive, as and when the mood takes them, anywhere in India."
6. The reports of Amnesty International
II. RELEVANT DOMESTIC AND INTERNATIONAL LAW AND PRACTICE
B. Appeal against deportation and the advisory panel procedure
The person concerned is given an opportunity to make written and/or oral representations to an advisory panel, to call witnesses on his behalf, and to be assisted by a friend, but he is not permitted to have legal representation before the panel. The Home Secretary decides how much information about the case against him may be communicated to the person concerned. The panel's advice to the Home Secretary is not disclosed, and the latter is not obliged to follow it.
C. The United Nations 1951 Convention on the Status of Refugees
Article 32 of the 1951 Convention provides:
"1. The Contracting States shall not expel a refugee lawfully in their territory save on grounds of national security or public order. 2. The expulsion of such a refugee shall only be in pursuance of a decision reached in accordance with due process of law ..."
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."
"Where a person is a refugee full account is to be taken of the provisions of the Convention and Protocol relating to the Status of Refugees ..."
D. Detention pending deportation
In addition, a detainee may apply for judicial review of the decision to detain him (see paragraphs 43 above and 66-67 below).
In conjunction with either an application for habeas corpus or judicial review, it is possible to apply for bail (that is, temporary release) pending the decision of the court.
E. Judicial review
These principles do not permit the court to make findings of fact on matters within the province of the Secretary of State or to substitute its discretion for the Minister's. The court may quash his decision only if he failed to interpret or apply English law correctly, if he failed to take account of issues which he was required by law to address, or if his decision was so irrational or perverse that no reasonable Secretary of State could have made it (Associated Provincial Picture Houses Ltd v. Wednesbury Corporation  1 King's Bench Reports, p. 223).
"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  Appeal Cases, p. 374, at p. 402).
See also R. v. Secretary of State for the Home Department, ex parte Cheblak  2 All England Reports, p. 9, where a similar approach was taken by the Court of Appeal.
PROCEEDINGS BEFORE THE COMMISSION
The full text of the Commission's opinion and of the partly dissenting opinion contained in the report is reproduced as annex to this judgment.
FINAL SUBMISSIONS TO THE COURT
AS TO THE LAW
I. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION (art. 3)
"No one shall be subjected to torture or to inhuman or degrading treatment or punishment." The Commission upheld this complaint, which the Government contested.
A. Applicability of Article 3 (art. 3) in expulsion cases
The Government contested this principle before the Commission but accepted it in their pleadings before the Court.
B. Expulsion cases involving an alleged danger to national security
In the alternative, the threat posed by an individual to the national security of the Contracting State was a factor to be weighed in the balance when considering the issues under Article 3 (art. 3). This approach took into account that in these cases there are varying degrees of risk of ill-treatment. The greater the risk of ill-treatment, the less weight should be accorded to the threat to national security. But where there existed a substantial doubt with regard to the risk of ill-treatment, the threat to national security could weigh heavily in the balance to be struck between protecting the rights of the individual and the general interests of the community. This was the case here: it was at least open to substantial doubt whether the alleged risk of ill-treatment would materialise; consequently, the fact that Mr Chahal constituted a serious threat to the security of the United Kingdom justified his deportation.
At the hearing before the Court, the Commission's Delegate suggested that the passages in the Court's Soering judgment upon which the Government relied (see paragraph 76 above) might be taken as authority for the view that, in a case where there were serious doubts as to the likelihood of a person being subjected to treatment or punishment contrary to Article 3 (art. 3), the benefit of that doubt could be given to the deporting State whose national interests were threatened by his continued presence. However, the national interests of the State could not be invoked to override the interests of the individual where substantial grounds had been shown for believing that he would be subjected to ill-treatment if expelled.
C. Application of Article 3 (art. 3) in the circumstances of the case
1. The point of time for the assessment of the risk
2. The assessment of the risk of ill-treatment
(a) The arguments
(i) General conditions
In response to the Government's offer to return him to the part of India of his choice, he asserted that the Punjab police had abducted and killed militant Sikhs outside their home State in the past.
Although he accepted that there had been some improvements in Punjab since the peak of unrest in 1992, he insisted that there had been no fundamental change of regime. On the contrary, what emerged from the above reports was the continuity of the practices of the security agencies. In this respect he pointed to the fact that the director general of the Punjab police, who had been responsible for many human rights abuses during his term of office between 1992 and 1995, had been replaced upon his retirement by his former deputy and intelligence chief.
Furthermore, with reference to the matters set out in paragraphs 45-48 above, they contended that the situation in Punjab had improved substantially in recent years. They stressed that there was now little or no terrorist activity in that State. An ombudsman had been established to look into complaints of misuse of power and the new Chief Minister had publicly declared the government's intentions to stamp out human rights abuses. Legal proceedings had been brought against police officers alleged to have been involved in unlawful activity.
(ii) Factors specific to Mr Chahal
In the Government's view, the Indian Government were likely to be astute to ensure that no ill-treatment befell Mr Chahal, knowing that the eyes of the world would be upon him. Furthermore, in June 1992 and December 1995 they had sought and received assurances from the Indian Government (see paragraph 37 above).
(b) The Court's approach
In particular, it would appear that the insurgent violence in Punjab has abated; the Court notes the very substantial reduction in terrorist-related deaths in the region as indicated by the respondent Government (see paragraph 45 above). Furthermore, other encouraging events have reportedly taken place in Punjab in recent years, such as the return of democratic elections, a number of court judgments against police officers, the appointment of an ombudsman to investigate abuses of power and the promise of the new Chief Minister to "ensure transparency and accountability" (see paragraphs 46 and 48 above). In addition, the 1996 United States' State Department report asserts that during 1995 "there was visible progress in correcting patterns of abuse by the [Punjab] police" (see paragraph 53 above).
Less than two years ago this same police force was carrying out well-documented raids into other Indian States (see paragraph 100 above) and the Court cannot entirely discount the applicant's claims that any recent reduction in activity stems from the fact that key figures in the campaign for Sikh separatism have all either been killed, forced abroad or rendered inactive by torture or the fear of torture. Furthermore, it would appear from press reports that evidence of the full extent of past abuses is only now coming to light (see paragraph 53 above).
Against this background, the Court is not persuaded that the above assurances would provide Mr Chahal with an adequate guarantee of safety.
Accordingly, the order for his deportation to India would, if executed, give rise to a violation of Article 3 (art. 3).
II. ALLEGED VIOLATIONS OF ARTICLE 5 OF THE CONVENTION (art. 5)
A. Article 5 para. 1 (art. 5-1)
"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 ..."
In particular, the applicant complained about the length of time (16 August 1990 - 27 March 1991) taken to consider and reject his application for refugee status; the period (9 August 1991 - 2 December 1991) between his application for judicial review of the decision to refuse asylum and the national court's decision; and the time required (2 December 1991 - 1 June 1992) for the fresh decision refusing asylum.
Indeed, all that is required under this provision (art. 5-1-f) is that "action is being taken with a view to deportation". It is therefore immaterial, for the purposes of Article 5 para. 1 (f) (art. 5-1-f), whether the underlying decision to expel can be justified under national or Convention law.
It is thus necessary to determine whether the duration of the deportation proceedings was excessive.
As regards the decisions taken by the Secretary of State to refuse asylum, it does not consider that the periods (that is, 16 August 1990 - 27 March 1991 and 2 December 1991 - 1 June 1992) were excessive, bearing in mind the detailed and careful consideration required for the applicant's request for political asylum and the opportunities afforded to the latter to make representations and submit information (see paragraphs 25-27 and 34-35 above).
Against this background, and bearing in mind what was at stake for the applicant and the interest that he had in his claims being thoroughly examined by the courts, none of the periods complained of can be regarded as excessive, taken either individually or in combination. Accordingly, there has been no violation of Article 5 para. 1 (f) of the Convention (art. 5-1-f) on account of the diligence, or lack of it, with which the domestic procedures were conducted.
Where the "lawfulness" of detention is in issue, including the question whether "a procedure prescribed by law" has been followed, the Convention refers essentially to the obligation to conform to the substantive and procedural rules of national law, but it requires in addition that any deprivation of liberty should be in keeping with the purpose of Article 5 (art. 5), namely to protect the individual from arbitrariness.
It follows that there has been no violation of Article 5 para. 1 (art. 5-1).
B. Article 5 para. 4 (art. 5-4)
"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."
He submitted that the reliance placed on national security grounds as justification for his detention pending deportation prevented the domestic courts from considering whether it was lawful and appropriate. However, he developed this argument more thoroughly in connection with his complaint under Article 13 of the Convention (art. 13) (see paragraphs 140-41 below).
The scope of the obligations under Article 5 para. 4 (art. 5-4) is not identical for every kind of deprivation of liberty (see, inter alia, the Bouamar v. Belgium judgment of 29 February 1988, Series A no. 129, p. 24, para. 60); this applies notably to the extent of the judicial review afforded. Nonetheless, it is clear that Article 5 para. 4 (art. 5-4) does not guarantee a right to judicial review of such breadth as to empower the court, on all aspects of the case including questions of pure expediency, to substitute its own discretion for that of the decision-making authority. The review should, however, be wide enough to bear on those conditions which are essential for the "lawful" detention of a person according to Article 5 para. 1 (art. 5-1) (see the above-mentioned E. v. Norway judgment, p. 21, para. 50).
III. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION (art. 8)
"1. Everyone has the right to respect for his private and family life, his home and his correspondence.
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 ..."
The applicants, for their part, conceded that the interference would be "in accordance with the law" and would pursue a legitimate aim for the purposes of Article 8 para. 2 (art. 8-2).
The only material question in this connection was, therefore, whether the interference (that is, the deportation) would be "necessary in a democratic society in the interests of national security", within the meaning of Article 8 para. 2 (art. 8-2).
IV. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION (art. 13)
"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."
They submitted, first, that the powers of the English courts to put aside an executive decision were inadequate in all Article 3 (art. 3) asylum cases, since the courts could not scrutinise the facts to determine whether substantial grounds had been shown for belief in the existence of a real risk of ill-treatment in the receiving State, but could only determine whether the Secretary of State's decision as to the existence of such a risk was reasonable according to the "Wednesbury" principles (see paragraph 66 above).
This contention had particular weight in cases where the executive relied upon arguments of national security. In the instant case, the assertion that Mr Chahal's deportation was necessary in the interests of national security entailed that there could be no effective judicial evaluation of the risk to him of ill-treatment in India or of the issues under Article 8 (art. 8). That assertion likewise prevented any effective judicial control on the question whether the applicant's continued detention was justified.
Furthermore, it had to be borne in mind that all the relevant material, including the sensitive material, was examined by the advisory panel whose members included two senior judicial figures - a Court of Appeal judge and a former president of the Immigration Appeal Tribunal (see paragraph 29 above). The procedure before the panel was designed, on the one hand, to satisfy the need for an independent review of the totality of the material on which the perceived threat to national security was based and, on the other hand, to ensure that secret information would not be publicly disclosed. It thus provided a form of independent, quasi-judicial scrutiny.
In this connection, Amnesty International, Liberty, the AIRE Centre and JCWI (see paragraph 6 above) drew the Court's attention to the procedure applied in such cases in Canada. Under the Canadian Immigration Act 1976 (as amended by the Immigration Act 1988), a Federal Court judge holds an in camera hearing of all the evidence, at which the applicant is provided with a statement summarising, as far as possible, the case against him or her and has the right to be represented and to call evidence. The confidentiality of security material is maintained by requiring such evidence to be examined in the absence of both the applicant and his or her representative. However, in these circumstances, their place is taken by a security-cleared counsel instructed by the court, who cross-examines the witnesses and generally assists the court to test the strength of the State's case. A summary of the evidence obtained by this procedure, with necessary deletions, is given to the applicant.
Moreover, it is recalled that in certain circumstances the aggregate of remedies provided by national law may satisfy the requirements of Article 13 (art. 13) (see, inter alia, the above-mentioned Leander judgment, p. 30, para. 77).
Accordingly, there has been a violation of Article 13 (art. 13).
V. APPLICATION OF ARTICLE 50 OF THE CONVENTION (art. 50)
"If the Court finds that a decision or a measure taken by a legal authority or any other authority of a High Contracting Party is completely or partially in conflict with the obligations arising from the present Convention, and if the internal law of the said Party allows only partial reparation to be made for the consequences of this decision or measure, the decision of the Court shall, if necessary, afford just satisfaction to the injured party."
A. Non-pecuniary damage
The Government submitted that a finding of violation would be sufficient just satisfaction in respect of the claim for non-pecuniary damage.
B. Legal costs and expenses
With regard to the legal costs claimed, the Government observed that a substantial proportion of these were not necessarily incurred because the applicants had produced a large amount of peripheral material before the Court. They proposed instead a sum of £20,000, less legal aid.
C. Default interest
FOR THESE REASONS, THE COURT
1. Holds by twelve votes to seven that, in the event of the Secretary of State's decision to deport the first applicant to India being implemented, there would be a violation of Article 3 of the Convention (art. 3);
2. Holds by thirteen votes to six that there has been no violation of Article 5 para. 1 of the Convention (art. 5-1);
3. Holds unanimously that there has been a violation of Article 5 para. 4 of the Convention (art. 5-4);
4. Holds by seventeen votes to two that, having regard to its conclusion with regard to Article 3 (art. 3), it is not necessary to consider the applicants' complaint under Article 8 of the Convention (art. 8);
5. Holds unanimously that there has been a violation of Article 13 in conjunction with Article 3 of the Convention (art. 13+3);
6. Holds unanimously that the above findings of violation constitute sufficient just satisfaction as regards the claim for compensation for non-pecuniary damage;
7. Holds unanimously (a) that the respondent State is to pay the applicants, within three months, in respect of costs and expenses, £45,000 (forty-five thousand pounds sterling) less 21,141 (twenty-one thousand, one hundred and forty-one) French francs to be converted into pounds sterling at the rate applicable on the date of delivery of the present judgment; (b) that simple interest at an annual rate of 8% shall be payable from the expiry of the above-mentioned three months until settlement;
8. Dismisses unanimously the remainder of the claim for just satisfaction.
Done in English and in French and delivered at a public hearing at the Human Rights Building, Strasbourg, on 15 November 1996.
In accordance with Article 51 para. 2 of the Convention (art. 51-2) and Rule 53 para. 2 of Rules of Court A, the following separate opinions are annexed to this judgment:
(a) concurring opinion of Mr Valticos;
(b) concurring opinion of Mr Jambrek;
(c) partly concurring, partly dissenting opinion of Mr De Meyer;
(d) joint partly dissenting opinion of Mr Gölcüklü, Mr Matscher, Sir John Freeland, Mr Baka, Mr Mifsud Bonnici, Mr Gotchev and Mr Levits;
(e) joint partly dissenting opinion of Mr Gölcüklü and Mr Makarczyk;
(f) partly dissenting opinion of Mr Pettiti,
(g) joint partly dissenting opinion of Mr Martens and Mrs Palm.
CONCURRING OPINION OF JUDGE VALTICOS
This opinion refers to the wording used in paragraph 123 of the Chahal v. the United Kingdom judgment, which concerns Article 5 para. 1 (art. 5-1).
While sharing the opinion of the majority of the Grand Chamber and concurring in their conclusion that there has been no violation of that provision (art. 5-1), I am unable to agree with the statement in the first sub-paragraph of paragraph 123 that Mr Chahal's detention "complied with the requirements of Article 5 para. 1 (f) (art. 5-1-f)".
Article 5 para. 1 (f) (art. 5-1-f) provides that "... No one shall be deprived of his liberty save [in the case of] ... the lawful arrest or detention of a person ... against whom action is being taken with a view to deportation ...". That provision (art. 5-1-f) must be interpreted in good faith and with common sense, as indeed must any legal provision. I would have qualms about holding here that a period of four or five years could really be regarded as "[complying] with the requirements" of that Article (art. 5-1-f) and as being "lawful" detention for a transitional and, in principle, limited period. Admittedly, there were particular reasons in the present case which prevented the applicant being deported promptly (consideration of his application for judicial review and, above all, the problem of whether it was appropriate to deport him to India). But to go from that to saying that the situation "complied with the requirements" of Article 5 of the Convention (art. 5) seems to me excessive. However, one cannot go to the opposite extreme of holding that there has been a violation of the Convention for the Government were able to point to reasons of some weight. In my view, it would have been preferable to say merely that Mr Chahal's detention "was not contrary" to the requirements of Article 5 (art. 5). That is the reason for my objection to the wording of paragraph 123.
On the other hand, I agree that, as set out in the Court's final decision (point 2 of the operative provisions), there has been no violation of Article 5 para. 1 (art. 5-1)
CONCURRING OPINION OF JUDGE JAMBREK
1. Once more in this case, the Court has had to consider the issue of the use of confidential material in the domestic courts where national security is at stake. I agree with the Court's finding that the domestic proceedings for habeas corpus and for judicial review of the decision to detain Mr Chahal did not satisfy the requirements of Article 5 para. 4 (art. 5-4).
I also agree with the Court's reasoning as to the relevant principles and their application, that is:
(a) that the use of confidential material may be unavoidable where national security is at stake,
(b) that the national authorities, however, are not free in this respect from effective control by the domestic courts, and
(c) that there are techniques which can be employed which both accommodate legitimate security concerns and yet accord the individual a substantial measure of procedural justice.
This last point, (c), represents a new development in the Court's case-law and therefore, in my view, deserves special attention.
2. In Fox, Campbell and Hartley v. the United Kingdom (30 August 1990, Series A no. 182, pp. 17-18, paras. 34-35) the Court pointed to the responsibility of the Government to furnish at least some facts or information capable of satisfying it that the arrested person was reasonably suspected of having committed the alleged offence. The fact that Mr Fox and Ms Campbell both had previous convictions for acts of terrorism did not convince the Court that there was "reasonable suspicion", and it therefore held that there had been a breach of Article 5 para. 1 (art. 5-1) (paragraphs 34 and 35).
In the Murray v. the United Kingdom judgment of 28 October 1994 (Series A no. 300-A, pp. 27-29, paras. 58-63, passim) the Court reiterated its Fox, Campbell and Hartley standard, but found that the conviction in the United States of America of two of Mrs Murray's brothers of offences connected with the purchase of arms for the Provisional IRA and her visits to the USA and contacts with her brothers represented sufficient facts or information to meet the above standard, in other words, that they provided a plausible and objective basis for a "reasonable suspicion".
3. I dissented from the majority's view in the Murray judgment previously cited, pp. 45-47, as regards the violation of Article 5 paras. 1, 2 and 5 (art. 5-1, art. 5-2, art. 5-5). In my partly dissenting opinion, I held in relation to the issue of "reasonable suspicion" that the condition of reasonableness was not fulfilled, as the Government had not succeeded in furnishing "at least some facts or information" which would satisfy an objective observer that the person concerned might have committed the offence.
In my opinion in Murray I also anticipated the issue which has arisen in the present case, to which I refer under 1 (c) supra, when I posed the question whether "it was possible for the Court to set some modified standards for `reasonable suspicion' in the context of emergency laws enacted to combat terrorist crime". By way of a general reply, I advocated treating evidence in different ways depending on the degree of its confidentiality.
4. The Court also referred in the Fox, Campbell and Hartley case to "information which ... cannot ... be revealed to the suspect or produced in court to support the charge" (paragraph 32). This distinction in my view raises two relevant questions: first, is it justifiable to distinguish between revealing information to the suspect and producing it in court? And secondly, is there a difference between information made available to the court and information produced in court which is revealed to the suspect (see also my dissenting opinion in the Murray case)?
In the present case of Chahal, in discussing the alleged violation of Article 13 of the Convention (art. 13), the Court refers to the technique under the Canadian Immigration Act 1976, to which the intervenors drew attention. There, a Federal Court judge holds an in camera hearing of all the evidence, while the confidentiality of security material is maintained by requiring such evidence to be examined in the absence of both the applicant and his or her representative. However, in these circumstances, their place is taken by a security-cleared counsel instructed by the court. A summary of the evidence, with necessary deletions, is given to the applicant.
5. In my dissenting opinion in the Murray case, I suggested the following similar approach, couched (partly due to the absence of information about the Canadian technique) in more general terms, as representing a compromise between the wish to preserve the Fox, Campbell and Hartley standard and the need to expand the Court's reasoning in order to adapt it better to other similar cases.
Thus, I questioned "whether otherwise confidential information could not be rephrased, reshaped or tailored in order to protect its source and then be revealed. In this respect the domestic court could seek an alternative, independent expert opinion, without relying solely on the assertions of the arresting authority".
6. The purpose of the present concurring opinion is, therefore, to put this part of the Court's judgment into the context of its evolving case-law.
The Court may indeed be satisfied, in a future similar case, that some sensitive information may be produced in the domestic court, or even during the Strasbourg proceedings, which was and will not be revealed - at least not in its entirety, and in an unmodified form - to the suspect or to the detainee.
It will then remain the task of the Court to reconcile the demands of the adversarial principle with the need to protect confidentiality of information derived from secret sources pertaining to national security.
PARTLY CONCURRING, PARTLY DISSENTING OPINION OF JUDGE DE MEYER
I. The deportation order
A. Article 3 and Article 13 in conjunction with Article 3 (art. 3, art. 13+3) I entirely agree with the judgment in this respect.
B. Article 8 and Article 13 in conjunction with Article 8 (art. 8, art. 13+8)
The Court, having found that the question whether there had been a violation of the rights set forth in Article 8 of the Convention (art. 8) was "hypothetical" (see paragraphs 139 and 146 of the judgment) did not consider it necessary to rule on the Article 8 (art. 8) complaint or on the alleged violation of that provision in conjunction with Article 13 (art. 13+8).
I wish to point out that in the instant case the question of the violation of the rights set forth in Article 8 (art. 8) is no more "hypothetical" than that concerning those under Article 3 (art. 3). Both arise equally "in the event of the Secretary of State's decision to deport the first applicant to India being implemented". Consequently, if we consider one, we must also consider the other.
I agree in substance with the arguments unanimously adopted by the Commission in paragraphs 134 to 139 of its report and share its opinion that if the deportation order were enforced, there would be a violation of the applicants' right to respect for their private and family life.
I likewise consider that, in the instant case, there would also be a violation of the right to an effective remedy under Article 13 (art. 13) in respect of their Article 8 (art. 8) rights. The Court's observations concerning the violation of Article 13 in conjunction with Article 3 (art. 13+3) are equally valid as regards the alleged violation of Article 13 in conjunction with Article 8 (art. 13+8).
In the instant case these two violations are closely connected and virtually inseparable. Deporting the first applicant would constitute a violation of both his personal right not to be subjected to the practices referred to in Article 3 (art. 3) and all the applicants' right to respect for their private and family life. The lack of remedies for challenging the deportation order thus simultaneously affects each of these rights.
II. The first applicant's detention
A. Article 5 para. 1 (art. 5-1)
It is true that the first applicant was deprived of his liberty as part of the deportation proceedings and that initially, in August 1990, his detention could be considered lawful on this ground.
However, he has been held in prison ever since and it is now the end of October 1996.
That is clearly excessive.
The "considerations of an extremely serious and weighty nature" referred to in paragraph 117 of the judgment may be enough to explain the length of the deportation proceedings. They cannot, however, justify the length of the detention, any more than the complexity of criminal proceedings is enough to justify the length of pre-trial detention.
Moreover, what is in issue here is not, as in the Kolompar v. Belgium case (judgment of 24 September 1992, Series A no. 235-C), an instance of extradition requested by another State with respect to a prison sentence of several years, but rather an order made by the respondent State for the deportation of a person who, as is stated in paragraphs 23 and 24 of the judgment, had been convicted there of only two minor offences, convictions that had since been quashed.
B. Article 5 para. 4 and Article 13 in conjunction with Article 5 (art. 5-4, art. 13+5)
Unlike the Commission, which chose to examine the first applicant's complaint concerning the lack of sufficient remedies for challenging his detention from the point of view of Article 13 (art. 13), the Court considered it in the light of Article 5 para. 4 (art. 5-4).
The Court's reasoning is certainly more consistent with both the letter and the spirit of those provisions (art. 13, art. 5-4).
It should be reiterated first of all that Article 5 para. 4 (art. 5-4) provides that "everyone who is deprived of his liberty by arrest or detention" is entitled to take proceedings, whereas Article 13 (art. 13) confers this right upon "everyone whose rights and freedoms as set forth in [the] Convention are violated". This suggests that in order to be able to rely on the first provision (art. 5-4), deprivation of liberty on its own is enough, whereas for the second (art. 13) to be applicable there must have been a violation of a right or freedom.
It is also necessary to point out that Article 5 para. 4 (art. 5-4) states that the proceedings must be before a "court", whereas Article 13 (art. 13) requires more vaguely "an effective remedy before a national authority".
Lastly, it is of interest to note that, except for the right of access to a court, which, as the Court has acknowledged since the Golder v. the United Kingdom judgment of 21 February 1975 (Series A no. 18), is guaranteed by Article 6 of the Convention (art. 6), Article 5 (art. 5) is the only one of the Convention's substantive provisions that specifically provides for a right to bring court proceedings in addition to the right to a trial provided for in paragraph 3 of the same Article (art. 5-3) in the cases referred to in paragraph 1 (c) (art. 5-1-c).
The foregoing is a good illustration of how well those who drafted the Convention understood the need to provide, particularly for those deprived of their liberty, judicial protection that goes well beyond the "effective remedy" guaranteed more generally under Article 13 (art. 13).
It must follow that in cases concerning deprivation of liberty it is not enough to examine whether there has been a violation of Article 13 (art. 13) for it to become unnecessary to consider whether there has been a violation of Article 5 para. 4 (art. 5-4); in such cases it is only an examination of a possible violation of the latter provision (art. 5-4) that is necessary.
That is not all.
Article 13 (art. 13), which guarantees a remedy before a "national authority", must be taken in conjunction with Article 26 (art. 26), which requires "all domestic remedies [to have been] exhausted" before the Commission may deal with the matter. These two provisions (art. 13, art. 26) complement each other and demonstrate that it is first and foremost for the States themselves to punish violations of the rights and freedoms provided for, the protection afforded by the Convention institutions being merely secondary.
It is from this point of view that the question whether or not there is an "effective remedy" as required by Article 13 (art. 13) is relevant. For the Commission and the Court, the question is of no importance inasmuch as it relates to "rights and freedoms" which they consider were not "violated"; that is indeed what is indicated by the actual wording of the Article (art. 13).
This is certainly not true of the right to a remedy secured by Article 5 para. 4 (art. 5-4) to those deprived of their liberty, who must always be able to "take proceedings by which the lawfulness of [their] detention shall be decided speedily by a court and [their] release ordered if the detention is not lawful". Even if we find their detention as such to be lawful under Article 5 para. 1 (art. 5-1), we are not thereby absolved from the obligation to consider whether the individual concerned was able to avail himself of a remedy that satisfied the requirements of Article 5 para. 4 (art. 5-4).
JOINT PARTLY DISSENTING OPINION OF JUDGES GÖLCÜKLÜ, MATSCHER, Sir JOHN FREELAND, BAKA, MIFSUD BONNICI, GOTCHEV AND LEVITS
1. We agree with the majority that national security considerations could not be invoked to justify ill-treatment at the hands of a Contracting State within its own jurisdiction, and that in that sense the protection afforded by Article 3 (art. 3) is absolute in character. But in our view the situation is different where, as in the present case, only the extra-territorial (or indirect) application of the Article (art. 3) is at stake. There, a Contracting State which is contemplating the removal of someone from its jurisdiction to that of another State may legitimately strike a fair balance between, on the one hand, the nature of the threat to its national security interests if the person concerned were to remain and, on the other, the extent of the potential risk of ill-treatment of that person in the State of destination. Where, on the evidence, there exists a substantial doubt as to the likelihood that ill-treatment in the latter State would indeed eventuate, the threat to national security may weigh heavily in the balance. Correspondingly, the greater the risk of ill-treatment, the less weight should be accorded to the security threat.
2. As to the circumstances of the present case, we differ from the conclusion of the majority on the question whether it has been substantiated that there is a real risk of Mr Chahal being subjected to treatment contrary to Article 3 (art. 3) if he were to be returned to India. We accordingly disagree (and would do so even if we were to accept the reasoning of the majority as to the point dealt with in paragraph 1 above) with the finding that, in the event of the decision to deport him to that country being implemented, there would be a violation of the Article (art. 3).
3. In the Soering case, the Court was also concerned with the prospective removal of an applicant to another country. In its judgment in that case (first cited at paragraph 74 of the present judgment), the Court stated (p. 35, para. 90) that it "is not normally for the Convention institutions to pronounce on the existence or otherwise of potential violations of the Convention. However, where an applicant claims that a decision to extradite him would, if implemented, be contrary to Article 3 (art. 3) by reason of its foreseeable consequences in the requesting country, a departure from this principle is necessary, in view of the serious and irreparable nature of the alleged suffering risked, in order to ensure the effectiveness of the safeguard provided by that Article (art. 3) ..."
4. In that case, the extradition of the applicant was sought by the requesting State to meet a criminal charge carrying the death penalty, in circumstances which led the Court to conclude that the likelihood of his being exposed to the "death row phenomenon" was such as to bring Article 3 (art. 3) into play. The Court went on to conclude, after an analysis of what in practice the "death row phenomenon" would involve in the applicant's case, that his extradition would expose him to "a real risk of treatment going beyond the threshold set by Article 3 (art. 3)".
5. The applicant in the Soering case (which also differed on the facts in that there was no national security issue to be taken into consideration) was, therefore, in the grip of a legal process involving risks to him which were significantly easier to predict and assess than those which would be run by the first applicant in the present case if he were now to be returned to India. The consequences of the implementation of the deportation order against the latter are of a quite different, and much lower, order of foreseeability.
6. In the present case, the Court has had before it a mass of material about the situation in India and, more specifically, Punjab from 1990 onwards (although, we would note, none more recent than the United States Department of State report on India of March 1996 - see paragraph 53 of the judgment). The Court concludes in paragraph 86 (and we agree) that "... although the historical position is of interest in so far as it may shed light on the current situation and its likely evolution, it is the present conditions which are decisive".
7. As regards present conditions, it seems clear that there have in recent years been improvements in the protection of human rights in India, especially in Punjab, where violence reached a peak in 1992, and that progress has continued since the Commission's consideration of the case (see paragraph 101 of the judgment). On the other hand, allegations persist of serious acts of misconduct by some members of the Punjab security forces, acting either within or outside the boundaries of that State, and by some members of other security forces acting elsewhere in India (paragraphs 102-04). Although the probative value of some of the material before the Court may be open to question, we are satisfied that there is enough there to make it impossible to conclude that there would be no risk to Mr Chahal if he were to be deported to India, even to a destination outside Punjab if he were to choose one.
8. The essential difficulty lies in quantifying the risk. In reaching their assessment, the majority of the Court say that they are not persuaded that the assurances given by the Indian Government would provide Mr Chahal with an adequate guarantee of safety and consider that his high profile would be more likely to increase the risk to him than otherwise (paragraphs 105 and 106). It is, however, arguable with equal, if not greater, force that his high profile would afford him additional protection. In the light of the Indian Government's assurances and the clear prospect of a domestic and international outcry if harm were to come to him, there would be cogent grounds for expecting that, as a law-abiding citizen in India, he would be treated as none other than that. It could well be that the existence or extent of any potential threat to him would largely depend on his own future conduct.
9. Our overall conclusion is that the assessment of the majority leaves too much room for doubt and that it has not been "substantiated that there is a real risk" of the first applicant's being subjected to treatment contrary to Article 3 (art. 3) if he were now to be deported to India. A higher degree of foreseeability of such treatment than exists in this case should be required to justify the Court in finding a potential violation of that Article (art. 3).
10. Otherwise, and given its conclusions on the Article 3 (art. 3) issue, we agree with the findings of the Court, except Mr Gölcüklü, as appears from his following separate opinion.
JOINT PARTLY DISSENTING OPINION OF JUDGES GÖLCÜKLÜ AND MAKARCZYK
We agree with the dissenting opinion of Judge De Meyer as regards Article 5 para. 1 (art. 5-1) (Part II.A).
PARTLY DISSENTING OPINION OF JUDGE PETTITI
I voted in favour of finding a violation of Article 3, Article 5 para. 4 and Article 13 (art. 3, art. 5-4, art. 13). However, I strongly disagree with the majority in respect of Article 5 para. 1 (art. 5-1) and consider that there has been a clear and serious violation of that provision (art. 5-1).
Some weeks earlier, the Court correctly identified the problem of administrative detention in the case of proceedings covered by the Geneva Convention of 1951, and within the province of the Office of the United Nations High Commissioner for Refugees ("the UNHCR"). The Court held that there had been a violation by France on account of the rules then in force on administrative detention for a period of approximately twenty days without access to lawyers or any effective judicial review (see the Amuur v. France judgment of 15 June 1996, Reports of Judgments and Decisions 1996-III). The second period of detention in the Chahal case gives rise to the same types of problems.
With respect to the decision taken under the general law to deport Mr Chahal, it was not disputed that his detention began on 16 August 1990 and that he applied for judicial review.
After his application for asylum as a political refugee had been refused, a deportation order was made on 25 July 1991 on the basis of the Geneva Convention. Mr Chahal's detention fell to be considered by the Court from that angle. There was therefore a confrontation between the Geneva Convention and the European Convention on Human Rights, which concern the same member States. States may expel persons who are denied political refugee status. If difficulties are encountered (with respect to travel, dangers that might be encountered on returning, or the search for a safe State or third State), the person must be placed in administrative detention and not held in an ordinary prison under a prison regime. In addition, the detention must be reviewed promptly by the courts (see the Amuur judgment cited above).
Mr Chahal was not detained as a result of any conviction.
Where an application is made for review, it must be heard expeditiously, as a matter of urgency. The organisation of review procedures is governed by the Geneva Convention and UNHCR resolutions. It is possible to petition the Commission on Human Rights of the United Nations in that regard. The European Court cannot review the procedures, but it can consider them under Articles 3 and 5 (art. 3, art. 5) when a violation is alleged.
It is almost perverse of the majority to argue, as it does, that since it was the applicant who sought a review, his detention was justified if the proceedings became protracted. Were this reasoning to be transposed, an accused who applied for release from custody pending trial would be told that his detention was justified by the fact that he had made an application that necessitated proceedings. Yet liberty of the person is a fundamental right guaranteed by Article 5 (art. 5).
The fact that an application for release is pending cannot be a ground for detention being prolonged where the detention is contrary to the provisions of Article 5 (art. 5). Five years' detention in prison after the deportation order following the refusal of refugee status: such has been Mr Chahal's lot.
It is obvious that in international law under the Geneva Convention administrative detention differs from detention under the general law and must be enforced by measures such as an order for compulsory residence on administrative premises or in a hotel (see the Amuur judgment cited above) or house arrest. The United Nations Covenants and the recommendations of the United Nations Sub-Committee on questions of human rights of all persons subjected to any form of detention or imprisonment must be heeded.
Where a State is faced with a difficulty arising out of the danger that would be entailed by a return to the country of origin, it may, if it does not wish to continue to detain the person on its territory, negotiate the choice of a third country.
In sensitive political cases such as that of Mr Chahal - for example, those concerning the expulsion of imams and religious leaders whether fundamentalists or not - European States have found alternatives by expelling to certain African countries. The United Kingdom itself has had recourse to such expedients.
The European Convention does not allow States to disregard their obligations under the Geneva Convention. The Court must be attentive to problems of potential conflicts between international inter-State instruments binding the member States of the Council of Europe.
My opinion on this subject is based on the work of the UNHCR and on the European Commission's and Court's own decisions.
In the UNHCR publication "Detention and Asylum" (European Series, vol. 1, no. 4, October 1995) it is stated:
"Article 5 (art. 5) further provides guarantees against undue prolongation of the detention. Neither the Geneva Convention, nor the Committee of Ministers guidelines provide for a maximum duration of the detention of persons seeking asylum. In its Conclusion No. 44 the UNHCR Executive Committee recognises the importance of expeditious procedures in protecting asylum-seekers from unduly prolonged detention. Article 5, para. 1 (f) (art. 5-1-f), as interpreted by the Court, should be understood as containing a safeguard as to the duration of the detention authorised, since the purpose of Article 5 (art. 5) as a whole is to protect the individual from arbitrariness. In its Bozano judgment (18 December 1986, Series A no. 111, p. 23, para. 54), the Court considered that this principle was of particular importance with respect to Article 5, para. 1 (f) of the Convention (art. 5-1-f). This provision (art. 5-1-f) certainly implies - though it is not made explicit - that detention of an alien which is justified by the fact that proceedings concerning him are in progress can cease to be justified if the proceedings concerned are not conducted with due diligence.
... [And, with reference to paragraph III.10 of Recommendation No. R (94) 5 of the Committee of Ministers on Guidelines to inspire practices of the member States of the Council of Europe concerning the arrival of asylum-seekers at European airports:] `
10. The asylum-seeker can be held in [an appropriate] place only under the conditions and for the maximum duration provided for by law.'
Under Article 5 (art. 5), a measure amounting to a deprivation of liberty will only comply with the requirements of the Convention if it is legal in domestic law. Article 5 para. 1 (art. 5-1) lays down that any arrest or detention must be carried out `in accordance with a procedure prescribed by law'. On this point the Convention first and foremost requires that any deprivation of liberty must have a legal basis in domestic law. Deprivation of liberty cannot occur in the absence of a domestic legal provision expressly authorising it. It further refers back to this national law and lays down the obligation to conform to both the substantive and procedural rules thereof."
As regards decisions on Article 5 (art. 5) of the European Convention on Human Rights, in the case of Kolompar v. Belgium (judgment of 24 September 1992, Series A no. 235-C, p. 64, para. 68), the Commission delivered the following opinion on an extradition problem, which can be transposed to deportation cases:
"However, the Commission considers that there is also, in the present case, a problem of State inactivity. The Commission recalls that Article 5 para. 1 of the Convention (art. 5-1) states that there is a `right to liberty', and that the exceptions to this right, listed in sub-paragraphs (a) to (f) of this provision (art. 5-1-a, art. 5-1-b, art. 5-1-c, art. 5-1-d, art. 5-1-e, art. 5-1-f), have to be narrowly interpreted (Eur. Court H. R., Winterwerp v. the Netherlands judgment of 24 October 1979, Series A no. 33, p. 16, para. 37; Guzzardi v. Italy judgment of 6 November 1980, Series A no. 39, p. 36, para. 98). The Commission takes the view that the State from which extradition is requested must ensure that there is a fair balance between deprivation of liberty and the purpose of that measure. Being responsible for the detention of the individual whose extradition has been requested, this State must take particular care to ensure that the prolongation of the extradition procedure does not culminate in a lack of proportionality between the restriction imposed on the right to individual liberty protected by Article 5 (art. 5) and its international obligations in respect of extradition. The Commission therefore considers that, even assuming total inactivity by the applicant in the said proceedings, it was the Government's duty to take particular care to limit the applicant's detention pending extradition ..."
The Court held in the Kolompar case that there had been no violation, but that was because of the applicant's prolonged inactivity and conduct and not because it did not fall within the scope of Article 5 para. 1 (art. 5-1).
It is only in cases where persons who have been refused asylum commit an offence (for instance, by returning illegally) that they may be detained in prison.
It is clear from past cases that if proceedings are not conducted with the requisite diligence, or if detention results from some misuse of authority, detention ceases to be justifiable under Article 5 para. 1 (f) (art. 5-1-f) (application no. 7317/75, Lynas v. Switzerland, decision of 6 October 1976, Decisions and Reports 6, p. 167; Z. Nedjati, Human Rights under the European Convention, 1978, p. 91).
The European Court's judgment of 1 July 1961 in the case of Lawless v. Ireland (Series A no. 3) also sheds much light on its case-law concerning the scope of Article 5 para. 1 (art. 5-1) - a major Article of the Convention (art. 5-1) as it secures the liberty of person.
Admittedly, the Lawless case had as its background a state of emergency, but that does not alter the philosophy and principles expressed by the Court.
In particular, the Court said in its judgment on the merits:
"Whereas in the first place, the Court must point out that the rules set forth in Article 5, paragraph 1 (b) (art. 5-1-b), and Article 6 (art. 6) respectively are irrelevant to the present proceedings, the former because G.R. Lawless was not detained 'for non-compliance with the ... order of a court' or 'in order to secure the fulfilment of [an] obligation prescribed by law' and the latter because there was no criminal charge against him; whereas, on this point, the Court is required to consider whether or not the detention of G.R. Lawless from 13th July to 11th December 1957 under the 1940 Amendment Act conflicted with the provisions of Article 5, paragraphs 1 (c) and 3 (art. 5-1-c, art. 5-3);
Whereas, in this connection, the question referred to the judgment of the Court is whether or not the provisions of Article 5, paragraphs 1 (c) and 3 (art. 5-1-c, art. 5-3), prescribe that a person arrested or detained `when it is reasonably considered necessary to prevent his committing an offence' shall be brought before a judge, in other words whether, in Article 5, paragraph 1 (c) (art. 5-1-c), the expression `effected for the purpose of bringing him before the competent judicial authority' qualifies only the words `on reasonable suspicion of having committed an offence' or also the words `when it is reasonably considered necessary to prevent his committing an offence';
Whereas the wording of Article 5, paragraph 1 (c) (art. 5-1-c), is sufficiently clear to give an answer to this question; whereas it is evident that the expression `effected for the purpose of bringing him before the competent legal authority' qualifies every category of cases of arrest or detention referred to in that sub-paragraph (art. 5-1-c); whereas it follows that the said clause (art. 5-1-c) permits deprivation of liberty only when such deprivation is effected for the purpose of bringing the person arrested or detained before the competent judicial authority, irrespective of whether such person is a person who is reasonably suspected of having committed an offence, or a person whom it is reasonably considered necessary to restrain from absconding after having committed an offence;
Whereas the meaning thus arrived at by grammatical analysis is fully in harmony with the purpose of the Convention which is to protect the freedom and security of the individual against arbitrary detention or arrest; whereas it must be pointed out in this connexion that, if the construction placed by the Court on the aforementioned provisions (art. 5-1-c, art. 5-3) were not correct, anyone suspected of harbouring an intent to commit an offence could be arrested and detained for an unlimited period on the strength merely of an executive decision without its being possible to regard his arrest or detention as a breach of the Convention ..." (pp. 51-52, paras. 12-14)
Under the Geneva Convention, it is for each State to organise its appeal procedures in respect of matters arising under the Convention.
The effectiveness of those procedures is reviewable by the UNHCR and, if necessary, in the event of any shortcomings, may be the subject of the applications mentioned above.
Among the major western European States, Germany provides a right of appeal to the ordinary courts. Other States have a special court or a committee. Such an institution was set up in Belgium only in 1989 (Standing Committee for Refugee Appeals) and in Sweden in January 1992 (Aliens Appeals Committee). In the United Kingdom it was only with the coming into force of the Asylum and Immigration Appeals Act 1993 that applicants whose appeals for asylum had been refused were given a right of appeal (to the Immigration Appeals Authority). In France there is the French Office for the Protection of Refugees and Stateless Persons (the "OFPRA") and the Appeals Committee (commission de recours) (see Bulletin luxembourgeois des droits de l'homme, vol. 5, 1996).
States are not legally bound to grant asylum, but merely not to send a person to a country where he faces persecution or to one from which he risks being sent to such a country. This has prompted most European nations to adopt the practice of returning asylum-seekers either to a country through which they have transited in order to travel to the country where they are seeking asylum or else to a "safe third country".
The Court has firmly found violations of Article 3 and Article 5 para. 4 (art. 3, art. 5-4). In my opinion, it was equally necessary for it to find a violation of Article 5 para. 1 (art. 5-1), in line with its case-law.
As implemented by the British authorities, Mr Chahal's detention can be likened to an indefinite sentence. In other words, he is being treated more severely than a criminal sentenced to a term of imprisonment in that the authorities have clearly refused to seek a means of expelling him to a third country. The principle contained in Article 5 (art. 5) of immediately bringing a detained person before a court is intended to protect liberty and not to serve as "cover" for detention which has not been justified by a criminal court. Administrative detention under the Geneva Convention cannot be extended beyond a reasonable - brief - period necessary for arranging deportation. The general line taken by the Court in the Amuur case can, in my view, be adopted in the Chahal case. For this reason, I have concluded that there has been a violation of Article 5 para. 1 (art. 5-1).
So far as Article 8 of the Convention (art. 8) is concerned, I share the views of Mr De Meyer.
JOINT PARTLY DISSENTING OPINION OF JUDGES MARTENS AND PALM
1. We fully agree with the Court's findings in respect of Articles 3, 5 para. 4, 8 and 13 (art. 3, art. 5-4, art. 8, art. 13). As to its findings in respect of Article 5 para. 1 (f) (art. 5-1-f) we agree with paragraphs 112 to 121 of the judgment.
We cannot accept, however, the Court's findings:
(a) that the procedure before the advisory panel constituted a sufficient guarantee against arbitrariness; and
(b) that, consequently, the first applicant's detention in this respect too complied with the requirements of Article 5 para. 1 (f) (art. 5-1-f) (paragraphs 122 and 123 of the judgment).
2. As the Court rightly remarks in paragraph 112 of its judgment, Article 5 para. 1 (f) (art. 5-1-f) does not explicitly demand that the detention under this provision (art. 5-1-f) be reasonably considered necessary. This enhances, for this kind of detention, the importance of the object and purpose of Article 5 para. 1 (art. 5-1) in general, which is to ensure that no one should be dispossessed of his liberty in an arbitrary fashion.
3. In this context we firstly note that the domestic courts were not in a position effectively to control whether the decisions to detain and to keep detained Mr Chahal were justified (see paragraphs 41, 43, 121 and 130 of the Court's judgment). Consequently, the only possible safeguard against arbitrariness under domestic law was the advisory panel procedure.
4. Having analysed the status of and the proceedings before this panel the Court finds that this procedure does not meet the requirements of Article 5 para. 4 (art. 5-4) and of Article 13 (art. 13) (paragraphs 130, 132, 152, 153) of the Convention. We find it difficult to understand why it did not draw the same conclusion in the context of Article 5 para. 1 (f) (art. 5-1-f).
5. However that may be, we note:
(a) that it has not been claimed that the members of the panel are, as such, independent from the Government;
(b) that the proceedings before the panel are not public, nor are its findings, which are not even disclosed to the addressee of the notice of intent to deport;
(c) that in the proceedings before the panel the position of the addressee of the notice of intent to deport is severely restricted: he is not entitled to legal representation, he is only given an outline of the grounds for the notice of intention to deport, he is not informed of the sources of and the evidence for those grounds;
(d) that the panel has no power of decision and that its advice is not binding upon the Home Secretary.
6. Taking into account the importance of guarantees against arbitrariness especially in respect of detention under Article 5 para. 1 (f) (art. 5-1-f) (see paragraph 2 above) as well as the necessity of uniform standards being applied in this respect to all member States, we cannot but conclude that, in view of its features indicated in paragraph 5 above, the panel does not constitute an adequate guarantee against arbitrariness. The fact that it includes "experienced judicial figures" (see paragraph 122 of the judgment) cannot change this conclusion.
7. In sum: the applicant has been deprived of his liberty for more than six years whilst there were not sufficient guarantees against arbitrariness. Article 5 para. 1 (art. 5-1) has therefore been violated.
 The case is numbered 70/1995/576/662. The first number is the case's position on the list of cases referred to the Court in the relevant year (second number). The last two numbers indicate the case's position on the list of cases referred to the Court since its creation and on the list of the corresponding originating applications to the Commission.
 Rules A apply to all cases referred to the Court before the entry into force of Protocol No. 9 (P9) (1 October 1994) and thereafter only to cases concerning States not bound by that Protocol (P9). They correspond to the Rules that came into force on 1 January 1983, as amended several times subsequently.
 For practical reasons this annex will appear only with the printed version of the judgment (in Reports of Judgments and Decisions 1996-V), but a copy of the Commission's report is obtainable from the registry.