Inhuman and degrading treatment
01 January 1991
Inhuman and degrading treatment
bacdoc September=1992
Interlocutory actions,
inhuman and degrading treatment, and the right to family life
Cruz Vara v Sweden (20.3.91) Series A, Vol 201
European Court of Human Rights
Facts
In an application concerning deportation, the applicant alleged
that he was likely to be subjected to inhuman and degrading
treatment if he were returned to Chile.
Decision
a) Interlocutory actions:
The court, by a majority, decided that, while it was necessary
to have practical and effective safeguards to protect persons
from breaches of the convention, it had no power to order
governments to take or refrain from action. However, where a
state was aware that a particular course of action would
prejudice a pending application but nevertheless took that
action, this would aggravate any breach of the convention that
was subsequently established.
b) Inhuman and degrading treatment and the right to family life:
The court also decided that: (i) it could have regard to new
facts that had come to light since the decision to expel;
(ii) the applicant's silence for 18 months about his activities
and torture cast doubt on his credibility, and the expertise of
the Swedish authorities in evaluating such claims cast doubt on
the applicant's claim that there was a real risk that he would
suffer inhuman or degrading treatment (article 3); (iii) the fact
that the applicant suffered post-traumatic stress disorder and
mental health problems after his expulsion was not severe enough
to constitute a breach of article 3; (iv) because of the finding
on article 3, there was no breach of article 8 (right to family
life) because the applicant's wife and son, who had gone into
hiding, could join him, and their separation was not the fault
of the state.
Comment
The court's decision on interlocutory actions unfortunately
confirms the difficulties of having a judicial system based on
an international treaty and not one incorporated into domestic
law. Interim decisions of the commission and the court bind the
participating countries in honour only.
Convention case-law has consistently failed to provide protection
for immigrants and asylum seekers. In this case, the court
confirmed previous convention jurisprudence that deportation does
not breach the right to family life if the family can go with the
applicant back to the country of origin.
EC Europe Law Civil liberties
Legal Action, John Wadham (legal officer Liberty)