Right to an effective remedy
01 January 1991
Right to an effective remedy
bacdoc September=1992
Vilvarajah v UK (30-10-91) Series A, Vol 215
European Court of Human Rights
Facts
The applicants were threatened with expulsion to Sri Lanka and
requested political asylum. In the application to the commission,
they alleged that, if they were returned, they would be subjected
to treatment contrary to article 3.
In the course of resisting expulsion, the applicants had taken
judicial review proceedings, which they had eventually lost in
the House of Lords (ex p Sivakumaran [1988] 1 All ER 193). They
argued that judicial review did not provide them with an
effective remedy and that they were not able to challenge the
merits of the secretary of state's decision to expel them. This
was particularly true, since the likely risk of ill-treatment was
a question of fact and the subject of the dispute between the
government and themselves.
Decision
The court decided that there was no breach of article 3 on the
basis of the evidence, even though some of the applicants were
actually subjected to ill-treatment following their return.
The court also held that article 13 does not force the
contracting state to adopt any particular remedy and that,
following Soering v UK (7.7.89), it was satisfied that the
domestic courts could review the reasonableness of the decision
to expel.
Comment
It is difficult to accept that judicial review can constitute an
effective remedy within the terms of article 13. An effective
remedy must be able to consider the merits of a decision.
judicial review is not such a remedy and cannot attack the merits
of a decision but only whether or not it is so wrong that it is
`perverse'.
EC Europe Law Civil liberties
Legal Action, John Wadham (legal officer Liberty)