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Asylum and Immigration Law Question 1 The statement that is to be evaluated is the statement that the “function of Article 3 [ECHR] to provide minimum standards for criminal justice, protection from crime, and social support throughout the world.” Article 3 of the ECHR states that no one person is to be subjected to torture or to inhuman or degrading treatment or punishment (van Dijk & van Hoof, 1990)…
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Download file to see previous pages The ECHR decided in the case of Soering v. United Kingdom, 161 Eur. Ct. H.R. (1989) that this provision meant that individuals cannot be extradited if they are threatened with torture or inhuman or degrading treatment in the requesting country. In this case, Jens Soring fought extradition from Europe to the United States because he would face capital charges in the United States, and Article 3 of the ECHR forbids extradition for this reason. While the European Court of Human Rights decided that transferring a person who would face the death penalty would not violate the Article 3 of the ECHR, if a prisoner or a person would be transferred to a country where he or she faced torture or inhuman or degrading treatment or punishment, then this would violate Article 3 of the ECHR (Collyer, 2005). Lilich (1991) states that this judgment was significant because extraditing states must consider the ill-treatment of other states when considering whether to send an individual to that third state. The ill-treatment may be beyond the control of the state, and the state may give no assurances that the person would not be subjected to ill-treatment. This decision, according to Lilich (1991) also obligates signatory states to not extradite to other states that would subject the person to ill treatment, and even non-signatory states would not be able to do so. Directly after this case was decided, the ECHR decided several other cases. One such case was Cruz Varas et al. v. Sweden, 46/1990/237/307. In this case, Hector Cruz fled from Chile to Sweden to seek asylum, which was rejected. The court there stated that Mr. Cruz’ extradition did not violate Article 3, in part because the situation in Chile was improving. Another case was Vilvarajah et al. v. United Kingdom, 46/1990/237/307 , Council of Europe: European Court of Human Rights, 20 March 1991. In this case the petitioner was attempting to ensure that he did not have to return to Sri Lanka. The court in that case found that there was only a possibility of ill treatment, therefore there was not a breach of Article 3. In Vivayanathan & Pusparajah v. France, 75/1991/327/399-400 , Council of Europe: European Court of Human Rights, 26 June 1992, the court decided that there was not yet an expulsion order for the petitioners, who were trying to fight being expelled from France into Sri Lanka. Therefore, they could not decide upon the erits of the case. Tomasi v. France (Series A, No. 241-A, Application No. 12580/87), European Court of Human Rights (1993), found for the applicant, who was abused in custody. Allweldt (1993), states that the prohibition on expulsion of individuals to countries hinges on whether or not there is a real risk that the person would be subject to torture or inhuman or degrading treatment. Allweldt (1993) states that the risk that the person faces does not have to be a high probability, just that it exists. There also must be a substantial grounds for the belief that the person would be subjected to torture or inhuman treatment in the receiving country. Addo & Grief (1998), states that Article 3 is brief because it sets out normative standards, and that each country is free to adopt these normative standard ...Download file to see next pagesRead More
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