If he's returned, he'll be tortured!

Overview

A simulation, a mini-trial that looks at a real case that came before the European Court of Human Rights

Related rights

• Freedom from torture
• The right to seek asylum
• Right to a fair public hearing

Objectives

• To develop knowledge about the role of the European Court of
  Human Rights and about derogations from articles of human
  rights law
• To develop skills to think critically and make logical arguments
• To cultivate a sense of justice and feeling for human dignity

Materials

• Copies of the role cards
• Pens and paper for note-taking
• Information card for the facilitator

Preparation

• Photocopy and cut out the cards . Everyone will
  need their own card and you should have equal numbers (or as
  close as possible) of judges, representatives of the
  UK Government and representatives of Mr Chahal.
• Number the cards in each group 1, 2, 3, 4 and so on.
• You will need sufficient space so that each of the "courts"
  (3 people) is able to sit apart from the others.

Key Date
  • 26 JuneUnited Nations International Day in Support of Victims of Torture

Instructions

1. Tell the group that the session will be devoted to a case which came before the European Court for Human Rights. Ask participants what they know about the Court and the European Convention of Human Rights.
2. Read out the information on the case card and make sure that everyone understands that the question is, "Would deporting Mr. Chahal be a violation of Article 3?"
3. Divide participants into 3 equal groups.
  • Group A represents Mr Chahal
  • Group B represents the UK Government
  • Group C represents the judges in the European Court of Human Rights
4. Hand each group copies of the relevant role card and explain that participants have 30 minutes to discuss and clarify their own positions. Groups A and B should use this time to prepare their arguments and Group C, the judges, should prepare questions for both sides.
5. After 30 minutes tell the participants to re-group: number 1s in a group, number 2s in another and so on, so that each new group comprises one representative for Mr. Chahal, one representative of the UK government and one judge.
6. Explain that each of these new small groups represents a mini-court. The courts have a further 20 minutes to listen to the arguments of both sides and for the judges to ask questions.
7. After this time, each judge should come to an individual judgement on whether Article 3 would be violated if Mr Chahal were to be deported. Bring the whole group back together and ask the judges to pronounce their decisions, giving their reasons.
8. Offer the representatives of the other two groups the opportunity to respond to the judgements made, and then tell them how the European Court in fact ruled in this case (see the information card below under "Handouts").
9. Ask for participants' reactions to the decision and then proceed to the debriefing and evaluation.

Debriefing and evaluationGoto top

  • What were the most difficult aspects of the case?
  • Did you find it hard to play your role?
  • Do you think the "judge" in your small group made the right decision? What were the most important factors in the final decision?
  • Why do you think that the European Convention on Human Rights allows for no limitation of the right to torture, even in cases of emergency?
  • What do you think the consequences would be if torture was sometimes permitted?
  • How does all of this relate to the "wars on terrorism"? Are you aware of actions or cases that are similar?
  • Why do we need the European Court of human rights?
  • Do you know of any cases from your country that have come before the court?
  • Who can take a case to the European Court of Human Rights?

Tips for facilitatorsGoto top

At point 4, where people are meeting with others sharing their role, you will need to warn them that they will be split up for the actual court cases. Encourage people to use part of the time for discussing details of the case with others, and part of it to prepare their opening statements. The judges should clarify the details of the case and think about the type of additional information they will need from both sides in order to make a judgement.

Explain to both sides in the trial that even if they do not agree with the position they are supposed to be representing, they need to make sure that the best possible defence is presented to the judges.
It will be best if you can either allow the different "courts" to meet in different rooms (point 6), or at least for them to be far enough from each other so as not to be overheard or to overhear the others.

Ask the judges to manage the time during the "trials". They may want to plan beforehand how much time they allow for questions, and how they divide the time between each side. Emphasise that they need to give each side approximately the same amount of time, but that they will need to be sure that there is time available for clarification of points which the sides dispute.

If participants are not already aware of it, you could provide some information at the end on the report by Dick Marty, "Secret detentions and illegal transfers of detainees involving Council of Europe member states: second report" about secret detentions and on the conditions at Guantanamo Bay (see the background information on War and Terrorism).

Suggestions for follow-upGoto top

The activity "Terrorism"  looks at different ways of defining terrorism, using examples of possible terrorist acts. You could also look at another human right which cannot be limited – the right to life – in the activity "When Tomorrow Comes" . This uses a piece of text written by a young person on Death Row.

Further informationGoto top

The European Court of Human Rights is an international judicial body established under the European Convention on Human Rights (ECHR) of 1950 to monitor respect of human rights by member states of the Council of Europe. www.echr.coe.int

There is a very simple summary about the European Court of Human Rights and its work at www.abouthumanrights.co.uk

The Court found that there would be a violation of Article 3 if the British Government went ahead with the planned deportation of Mr Chahal. Their reasoning was as follows:
"Article 3 enshrines one of the most fundamental values of democratic society …  The Court is well aware of the immense difficulties faced by States in modern times in protecting their communities from terrorist violence. However, even in these circumstances, the Convention prohibits in absolute terms torture or inhuman or degrading treatment or punishment, irrespective of the victim's conduct.  Unlike most of the substantive clauses of the Convention and of Protocols Nos. 1 and 4, Article 3 makes no provision for exceptions and no derogation from it is permissible under Article 15 even in the event of a public emergency threatening the life of the nation …

…The prohibition provided by Article 3 against ill-treatment is equally absolute in expulsion cases.  Thus, whenever substantial grounds have been shown for believing that an individual would face a real risk of being subjected to treatment contrary to Article 3 if removed to another State, the responsibility of the Contracting State to safeguard him or her against such treatment is engaged in the event of expulsion.  In these circumstances, the activities of the individual in question, however undesirable or dangerous, cannot be a material consideration."

Derogation. This is the name given to the act of withdrawing from a legal provision, or, in the case of the European Convention of Human Rights, of suspending a member state's legal obligations to particular articles. Article 15 of the ECHR allows a member state to do this "in time of war or other public emergency", but the State has to inform the Secretary General of the Council of Europe beforehand, and the derogation has to be "strictly required by the exigencies of the situation". Article 15 also specifies that there can be no derogation from articles 3, 4.1 and 7, and that derogation from article 2 only applies to "deaths resulting from lawful acts of war".

For a number of years, the UK derogated from parts of Article 5, and this was renewed in November 2001, after the terrorist attacks in the USA in September 2001, on the grounds that the UK faced a terrorist threat. The UK was the only one of the member states of the Council of Europe to use its right to derogate in the wake of the 2001 terrorist attacks in the USA. The derogation was withdrawn in 2005, following a decision of the House of Lords which found it to be discriminatory, and therefore incompatible with the Convention.

Summary of the European Convention on Human Rights.

Ideas for actionGoto top

Find out about which cases have come up in the European Court of Human Rights concerning your country, and whether there have been judgments claiming a violation. You can find the database by going to www.echr.coe.int and then searching "HUDOC database".

HandoutsGoto top

PDFDownload as PDF

Case card for use at step 2 of the instructions
The Case


Karamjit Singh Chahal is an Indian citizen, but currently lives in the UK. He is a Sikh, and he supports the campaign for an independent Sikh state in the Punjab area of India.

The British Government is trying to deport Mr Chahal back to India because it claims that his support for Sikh independence and his past activities mean that he is a threat to national security in the UK, particularly given the current concerns over terrorist activity.

Mr Chahal is fighting the deportation in the European Court of Human Rights, because he claims that he is certain to be tortured if he returns to India. He argues that this would be a violation of Article 3, and therefore that the Government is not entitled to deport him.

Role Card for Karamjit Singh Chahal

You are an Indian citizen, but currently live in the UK. You are a Sikh, and you support the campaign for an independent Sikh state in the Punjab area of India.

The British Government is trying to deport you back to India because it claims that your support for Sikh independence and your past activities mean that you are a threat to national security in the UK, particularly given the current concerns over terrorist activity.

You are certain that if you return to India, you will be tortured, as many of your friends and family have been – and as you were yourself the last time you were in India. This was only six years ago, and you were arrested and detained by the Punjab police for 21 days. During this time you were kept handcuffed in terrible conditions, beaten till you were unconscious, electrocuted on various parts of your body and subjected to a mock execution. Later on you were released without charge.
You claim:
1. You are not a threat to national security in the UK, because you support a peaceful resolution to the conflict in India.
2. You will certainly be tortured again if you go back to India, because things there have not changed substantially, and you are now even better known as a separatist.
3. If the UK Government lets that happen, it will be denying you your right to be free from torture. That would violate Article 3 of the ECHR.

Articles from the European Convention on Human Rights:
Article 3: Prohibition of torture
No one shall be subjected to torture or to inhuman or degrading treatment or punishment.

Article 15: Derogation in time of emergency
1. In time of war or other public emergency, a government may limit some of the rights in this convention, but only when absolutely necessary.
2. The rights in Articles 3, 4(i) and 7 can never be limited. The right to life cannot be limited except in the case of deaths resulting from lawful acts of war.

Role Card for the UK Government
The Case

Karamjit Singh Chahal is an Indian citizen, but currently lives in the UK. He is a Sikh, and he supports the campaign for an independent Sikh state in the Punjab area of India.
You act on behalf of the UK Government, which is trying to deport Mr Chahal back to India, because it claims that his support for Sikh independence and his past activities mean that he is a threat to national security in the UK, particularly given the current concerns over terrorist activity.
Mr Chahal is fighting the deportation in the European Court, because he claims that he is certain to be tortured if he returns to India. He argues that this would be a violation of Article 3, and therefore that the Government is not entitled to deport him.

You claim:
Mr Chahal is not at serious risk of being tortured because the situation in India has changed since he was there last, and you have a guarantee from the government there that he will be safe.
He is a threat to national security here in the UK because of his activities with the Sikh independence movement.
His right not to be tortured should therefore be limited and should not take precedence over the possible threats to national security.

Articles from the European Convention on Human Rights:
Article 3: Prohibition of torture
No one shall be subjected to torture or to inhuman or degrading treatment or punishment.

Article 15: Derogation in time of emergency
In time of war or other public emergency, a government may limit some of the rights in this convention, but only when absolutely necessary.
The rights in Articles 3, 4(i) and 7 can never be limited. The right to life cannot be limited except in the case of deaths resulting from lawful acts of war.

Role Card for the Judges
The Case


Karamjit Singh Chahal is an Indian citizen, but currently lives in the UK. He is a Sikh, and he supports the campaign for an independent Sikh state in the Punjab area of India.
The UK Government is trying to deport Mr Chahal back to India, because it claims that his support for Sikh independence and his past activities mean that he is a threat to national security in the UK, particularly given the current concerns over terrorist activity.
Mr Chahal is fighting the deportation in the European Court, because he claims that he is certain to be tortured if he returns to India. He argues that this would be a violation of Article 3, and therefore that the Government is not entitled to deport him.
The likelihood of torture: Information from different sources
In a 1995 report, the UN Special Rapporteur on torture commented on the practice of torture in police custody: “… 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.”
A recent Amnesty International report lists a pattern of human rights violations committed by officers of the Punjab police acting in under-cover operations outside their home State. Amnesty claims that prominent Sikh separatists still face a serious risk of “disappearance”, detention without charge or trial, torture and extrajudicial execution, often at the hands of the Punjab police.

Articles from the European Convention:
Article 3: Prohibition of torture

No one shall be subjected to torture or to inhuman or degrading treatment or punishment.

Information card for use by the facilitator at point 8 of the instructions

Summary of the case Chahal v. The U.K., (22414/93) [1996] ECHR 54 (15 November 1996)
Facts: The applicant is a Sikh who illegally entered the United Kingdom but his stay in the UK was later regularised under a general amnesty for illegal entrants. He had been politically active in the Sikh community in the UK and played an important role in the foundation and organisation of the International Sikh Youth Federation. He was arrested but not convicted for conspiracy to kill the then Indian Prime Minister, and was later convicted for assault and affray, but the conviction was set aside. A deportation order was issued because of his political activities and the criminal investigations taken against him, and he was detained until the ruling of the ECHR.
Complaint: The applicant claimed that his deportation to India would result in a real risk of torture, inhuman or degrading treatment which would violate article 3 of the European Convention. He also claimed a violation of his right to freedom of liberty guaranteed by article 5.
Holding: The ECHR found a violation of article 3 and article 5(4) and 13, but no violation of article 5(1).
Reasoning: Article 3 contained a guarantee which is absolute in expulsion cases, so the UK could not rely on its national security interest to justify the deportation of the applicant. The applicant would face a real risk of ill treatment if deported to India. No violation of article 5(1) was found since the decision was important and could not be taken hastily. The assertion of a national security interest should not free national authorities from effective control by national courts so the proceedings in the English
courts did not meet the requirements of Article 5(4).
http://www.hrcr.org/safrica/citizenship/Chahal.html