Judgments - Regina v. Secretary of State for the Home Department (Respondent) ex parte Bagdanavicius (FC) and another (Appellants)
OF THE LORDS OF APPEAL
FOR JUDGMENT IN THE CAUSE
Secretary of State for the Home Department (Respondent)
ex parte Bagdanavicius (FC) and another (Appellants)
THURSDAY 26 MAY 2005
The Appellate Committee comprised:
Lord Nicholls of Birkenhead
Lord Hope of Craighead
Lord Walker of Gestingthorpe
Baroness Hale of Richmond
Lord Brown of Eaton-under-Heywood
HOUSE OF LORDS
OPINIONS OF THE LORDS OF APPEAL FOR JUDGMENT
IN THE CAUSE
Regina v. Secretary of State for the Home Department (Respondent)
ex parte Bagdanavicius (FC) and another (Appellants)
 UKHL 38LORD NICHOLLS OF BIRKENHEAD
LORD HOPE OF CRAIGHEAD
LORD WALKER OF GESTINGTHORPE
BARONESS HALE OF RICHMOND
LORD BROWN OF EATON-UNDER-HEYWOOD
"No one shall be subjected to torture or to inhuman or degrading treatment or punishment."
"Owing to the absolute character of the right guaranteed, the court does not rule out the possibility that article 3 of the Convention may also apply where the danger emanates from persons or groups of persons who are not public officials. However, it must be shown that the risk is real and that the authorities of the receiving state are not able to obviate the risk by providing appropriate protection."
HLR was a deportation case where the source of the alleged risk to the applicant in Colombia was not the public authorities but rather drug traffickers allegedly threatening reprisals. Almost identical language was used by the Court in Ammani v Sweden Application No 60959/00 (unreported) 22 October 2002 where the alleged risk of ill-treatment was "not only by the Algerian authorities but also by the Islamic armed organisation GIA."
"It is true that this principle [the Soering principle] has so far been applied by the court in contexts in which the risk to the individual of being subjected to any of the proscribed forms of treatment emanates from intentionally inflicted acts of the public authorities in the receiving country or from those of non-state bodies in that country when the authorities there are unable to afford him appropriate protection."
"was still in a state of civil war and fighting was going on between a number of clans vying with each other for control of the country. There was no indication that the dangers to which the applicant would have been exposed in 1992 had ceased to exist or that any public authority would be able to protect him."
"[T]he expulsion of an alien by a contracting state 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 in question, if expelled, would face a real risk of being subjected to treatment contrary to article 3 in the receiving country. In these circumstances, article 3 implies the obligation not to expel the person in question to that country."
"(1) In sum, 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.
(2) The establishment of such responsibility inevitably involves an assessment of conditions in the requesting country against the standards of article 3 of the Convention.
(3) Nonetheless, there is no question of adjudicating on or establishing the responsibility of the receiving country, whether under general international law, under the Convention or otherwise.
(4) In so far as any liability under the Convention is or may be incurred, it is liability incurred by the extraditing contracting state by reason of its having taken action which has as a direct consequence the exposure of an individual to proscribed ill-treatment."
"If, on removal to another country, there is a real risk that a person would suffer torture or inhuman or degrading treatment or punishment from non-state agents, will removal violate article 3 ECHR, or must the person concerned also show that there is in that country an insufficiency of state protection against such ill-treatment?"
Non-state agents do not subject people to torture or the other proscribed forms of ill-treatment, however violently they treat them: what, however, would transform such violent treatment into article 3 ill-treatment would be the state's failure to provide reasonable protection against it.
"In the present case the source of the risk on which the applicant relies is not the public authorities. According to the applicant, it consists in the threat of reprisals by drug traffickers, who may seek revenge because of certain statements that he made to the French police, coupled with the fact that the Colombian state is, he claims, incapable of protecting him from attacks by such persons." (p 50, para 39).
I have already set out paragraph 40 of the court's judgment (see para 8 above). At p 50, para 42 the court concluded on the first limb of the case: "Although drug traffickers sometimes take revenge on informers, there is no relevant evidence to show in HLR's case that the alleged risk is real." At p 51, para 43 the court found against the applicant also on the second limb of his claim: "The applicant has not shown that they [the Colombian authorities] are incapable of according him appropriate protection."
The key to understanding the meaning of the word "obviate" in paragraph 40 of HLR was provided by my noble and learned friend, Lord Hope of Craighead, who pointed to the Collins Robert 4th edn dictionary translation of the French verb obvier as "to take precautions against." Nothing in the court's reasoning suggests that it regarded its conclusion on the issue of "appropriate protection" as affected, let alone determined, by its already stated conclusion on risk. To my mind it is clear that the applicant had to succeed on two independent points to establish his article 3 claim and in fact he succeeded on neither.