The European Convention on Human Rights and the Absoluteness of Article 3 - MAR v. United Kingdom

by Deljou Abadi

(from Iranian Refugees At Risk Summer/Fall 97)

In January 1997, the European Commission on Human Rights [the Commission] found admissible a petition from an Iranian refugee, who was facing deportation by the British government for a drug trafficking conviction. Identified as "M.A.R." in the press, the petitioner claimed he would face inhumane treatment if expelled to Iran - and that his deportation would put Britain in breach of the European Convention on Human Rights [ECHR] which prohibits such treatment.

At the heart of this case is the absoluteness of Article 3 of the European Convention of Human Rights, which guarantees: 1

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

Considering that only a very small number of cases2 are ruled admissible by the Commission, M.A.R. v. the United Kingdom will probably be a landmark case for refugees who because of their criminal convictions are subject to the exclusionary clauses of the UN Refugee Convention. Additionally, this case will examine the reactions of European States towards the political and justice system of Iran.

The European Human Rights System

The European system for the Protection of Human Rights was established by the Council of Europe, a regional inter-governmental organization currently consisting of 40 European nations. One of the two legal resources of this system is the Convention for Protection of Human Rights and Fundamental Freedoms[hereafter ECHR] which was signed in 1950 and entered into force in 1953. Most members of the Council have also ratified the additional Protocols, one of which abolished the death penalty (Protocol No. 6).

To ensure the observance of the PartiesÕ undertakings, the Convention established two institutions: the European Commission of Human Rights (hereafter the Commission), and the European Court of Human Rights (hereafter the Court), each with a number of members equal to that of the State Parties. The Convention also confers some supervisory functions on the Committee of Ministers of the Council of Europe, which is composed of national parliamentarians from Member States of the Council and is considered the political body of the Council.

By ratifying the ECHR, states accept the jurisdiction of the Commission and the Court respectively to receive complaints from other States Parties. However, the recognition of the right of private petition is not automatic and requires a special declaration by the States. To date 35 of the 40 State Parties have accepted the CommissionÕs jurisdiction. Private petitions may be filed by Òany person, non-governmental organization or group of individuals claiming to be the victim of a violation . . . of the rights set for [the] ConventionÓ allegedly committed by a State Party which has accepted the jurisdiction of the Commission to receive such petitions. The admissibility of petition is determined by the Commission in a preliminary proceeding.

After admitting a case, the Commission holds hearings, receives written submissions, examines witnesses in order to do a thorough investigation of the facts. Then Òit place itself at the disposal of the parties concerned with a view to securing a friendly resettlementÓ, usually wherein the Respondent State undertakes to pay compensation or to make some other amends without, however, admitting a violation of the Convention. Cases that have not been settled move to a third stage, where the Commission is required to Òdraw up a Report on the facts and state its opinion as to whether the facts found disclose a breach by the State.Ó The report is transmitted to the Committee of the Ministers together with any proposals the Commission wishes to make. At this point the Commission or the States have three months within which to refer the case to the Court. If this has not been done, the Committee of Ministers must decide whether there has been a violation of the Convention.

Recently, Protocol No. 9 has also enabled an individual, a group of individuals or a non-governmental organization, to refer their case to the Court after it has been examined by the Commission. Originally the Convention did not empower individual applicants to appear before the Court as parties either. However, due to new provisions the Commission is permitted to have the assistance of the lawyer of the individual applicant, or the applicant himself and applicants can be represented in the Court.

M.A.R.'s Petition

M.A.R. left Iran illegally in December 1981 after becoming known as a political activist supporting the Mujahedin Organization. He was granted refugee status by the UK in March 1982 after intervention by the United Nations High Commissioner for Refugees (UNHCR). He was later convicted on three separate occasions of possessing drugs. Following the third conviction the Home Office recommended that he be deported.3 However, after consultation with the UNHCR, the Home Secretary decided not to act. In June 1988, after a fourth conviction for supplying drugs, M.A.R. was sentenced to 10 years jail and recommended for deportation after his sentence.4 In 1993, after he was paroled, the Home Secretary issued a deportation order, but M.A.R appealed. His appeals were rejected by a special adjudicator and by the immigration appeals tribunal. In 1995 a further appeal was refused by the Court of Appeal.5

The UNHCR was consulted early in 1989 and agreed with the provisional view of the Home Secretary that the appellant, as a result of this very serious conviction, fell within Part 2 of Art. 33 of the 1951 Convention, which provides:6

"1. No Contracting State shall expel or return ("refouler") a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion.

2. The benefit of the present provision may not, however, be claimed by a refugee whom there are reasonable grounds for regarding as a danger to the security of the country in which he is, or who, having been convicted by a final judgment of a particularly serious crime, constitutes a danger to the community of that country."

The Court of Appeal, the Tribunal and the Secretary of State agreed that due to the nature of the appellant's conduct "the public interest" should be balanced against "the likelihood of the abuse of the appellant's human rights if returned to Iran." After considering the risk of persecution, abuse and ill-treatment in Iran, it was concluded "that the risk of abuse if he were returned was outweighed by the risk to the community if he remained here."7

M.A.R. is now challenging this conclusion before the Commission. He is arguing that Articles 2 and 3 of the Convention, which guarantee everyone's "right to life" and freedom from "torture or inhuman or degrading treatment or punishment" are of an absolute nature. Accordingly, such rights do not allow for any balancing of the competing interests of the applicant and the community by the domestic authorities when deciding on his expulsion; once a genuine risk to the applicant of treatment contrary to those Articles is established (as he submits it has been) , his expulsion would amount to a violation of those Articles.8

To establish a real risk of treatment contrary to Articles 2 & 3 of the Convention, M.A.R. has referred to various reports on the political situation and the judicial system in Iran and on the vigorous anti-drugs campaign pursued in Iran since 1989. He has emphasized that his life would be at risk because of the cumulative effect of his acknowledged political activities in Iran prior to his leaving of Iran, his being granted refugee status on the basis of the UNHCR's intervention and his subsequent drugs convictions.9

Furthermore, M.A.R has submitted that his expulsion would also amount to a violation of Articles 5 and 6 of the Convention,10 which deal with the right to be free from unlawful "arrest or detention" and the right to "a fair and public hearing" in determination of any criminal charges.

If the Commission cannot now succeed in effecting a friendly settlement, it will draw up a report on the facts and state its opinion as to whether the facts disclose a breach by the British Government of its obligations under the Convention. The Report will then be transmitted to the Committee of Ministers, which will decide the matter unless the case is referred to the European Court of Human Rights by the Commission or the Government of the United Kingdom, or by M.A.R. as provided by Protocol 9 to the Convention [see box on previous page].

Precedence on the absoluteness of ECHR's Article 3 has already been set by previous cases referred by the Commission to the Court [see Box]. Therefore, M.A.R's success in his petition essentially depends on whether or not in the Commission's view Iran's existing human rights record would prevent his deportation. Since Iran's record of human rights abuses is overwhelmingly characterized by political repression, lack of due process of law, and illegitimate punishments for criminal offenses, we believe that the Commission should come up with a decision favoring M.A.R.'s plea.

Intentional news black out by the Iranian regime have generally prevented the release of information about human rights violations. International human rights groups, such as Amnesty International, have, therefore, been unable to verify reports about the arrests and mistreatment of persons returning to Iran after prolonged absence abroad. Consequently, M.A.R's claim that his past political involvement, his application for asylum, and his long stay abroad would increase such risks should he be returned to Iran must be taken seriously. The possibilities that he might be subjected to imprisonment and torture to obtain his confession are not matters which can lightly be set aside. Amnesty International, Human Rights Watch and other international human rights organizations have documented Iran's regular use of torture to obtain confessions.

Given the possibility of interrogation and the methods used in Iran, as well as the accessibility of national courts of other countries and criminal records, the Iranian authorities are likely to discover about M.A.R.'s drug offenses. Therefore, he might face additional punishment on his return to Iran for offenses committed in Britain. While it is difficult to ascertain what that punishment might be, it is reasonable to assume that M.A.R. would face treatment of an extremely harsh nature, based on Iran's record of mistreating alleged drug offenders.

Drug offenses are considered to be very serious crimes in Iran. In January 1989 the death sentence was made mandatory for the possession of 30 grams of heroin, codeine, methadone or morphine or five kilograms of hashish (cannabis resin) or opium. Since then thousands of people convicted of drug trafficking offenses have been executed.11

At the beginning of the Iranian Year on March 21, 1997, the head of Iran's Organization of Prisons, Security, and Rehabilitation Affairs, estimated that 106,000 persons were serving terms or under pre-trial detention for charges of drug addiction, drug dealing, or drug smuggling.12 According to press reports monitored by Amnesty International, from March to 20 June 1996, 1,743 major drug dealers; 6,802 small-scale distributors; and 18,172 drug addicts had been arrested in Iran. The organization also expressed its concerns that an unknown number of drug traffickers may be facing execution. The Human Rights Watch Report for 1997 also notes reports of the execution of convicted drug traffickers began appearing in the Iranian press during 1996 after being absent for several years.

The Iranian government has stated that it is engaged in a war on drug traffickers, and considers them as being political crimes in Iran. In September 1996, Jumhuri Islami, quoted Sardar Yusef Reza Abolfathi, the commander of Tehran's police forces, as saying that by "spreading drugs and cultural aggressions," the enemies of the Islamic Republic of Iran have begun wide efforts "to contest the holy establishment of the Islamic Republic."13 Addressing a meeting of the Revolutionary Court judges from all over the country, another government official, Ayatollah Yazdi, Chief Justice, said: "supplying drugs has a political bearing and distributors and dealers must be fought as enemies of the [Islamic] establishment."14

Alleged drug offenders in Iran are tried in the Revolutionary Courts. According to the United States State Department's Country Reports on Human Rights Practices 1996:

"Trials in the Revolutionary Courts are not fair. Often, pretrial detention is prolonged and defendants lack access to attorneys. When legal help is available, attorneys are rarely given time to prepare an effective defense.

Indictments are often for vague offenses such as 'antirevolutionary behavior,' 'moral corruption,' and 'siding with global arrogance.' Defendants do not have the right to confront their accusers or to appeal. Secret or summary trials of 5 minutes are common. Others are show trials intended to highlight a coerced public confession."

The lack of due process in Iran's courts means that if M.A.R. is tried for drug offenses in Iran, he would not receive a fair trial and may be imprisoned or even executed without just cause. Imprisonment or torture in such circumstances are both very serious violations of an individual's human rights beyond what is considered as a legitimate imposition of punishment for such offense. Furthermore, M.A.R. has already received punishment for his offense in Britain and he should not be put in a position of double jeopardy.

Precedent Cases:


Last year, the UK government lost a case in the Court in attempting to deport Mr. Chahal from the UK to India. In that case, the government argued that Article 3 of the ECHR did not apply to those whom governments wish to deport as Ònational securityÓ risks and that therefore there was a limitation to Article 3 entitling a contracting State to expel an individual to a receiving State even where a real risk of ill-treatment existed. The Court, however, ruled, that the authorities could not expose anyone to a potential threat of human rights breaches, regardless of the reasons for the deportation in the first place and said that:

ÒThe absolute character of Article 3 ... enshrines one of the fundamental values of the democratic societies making up the Council of Europe.Ó


In another case decided a month later, the Court again confirmed that in no circumstances whatsoever can a person be sent to a country where they are at risk of being tortured. This case involved a Somali national, Mr. Ahmed, whose forfeiture of refugee status and expulsion was ordered by Austrian authorities, following a judgment in 1993 in which he was sentenced to two and a half years imprisonment for attempted robbery. After failed attempts to appeal his exclusion and expulsion, Mr. Ahmed lodged an application against Austria with the Commission in Dec. 1994. The Commission referred the case to the Court in Sept. 1995. Based on the findings of the Commission, the Court accepted that the situation in Somalia had changed hardly at all since 1992, when Mr. Ahmed requested asylum in Austria. The Court, therefore, held in Dec. 1996 that for as long as the applicant faces a real risk of being subjected in Somalia to treatment contrary to Article 3 of the Convention there would be a breach of that provision in the event of deporting him there.

-Title not given (Ref.:25Nov.1993, VG Wiesbaden InfAuslR 2/94), [IJRL/0245, International Journal of Refugee Law, p698.]

In 1993, by making reference to the provisions of the ECHR, a German appeal court ruled that a stay of deportation was appropriate in the case of an Iranian refugee applicant whose application was previously denied because he was convicted of illegal drug trafficking in Yugoslavia and Germany in 1987. In that case the Court feared that the Iranian authorities might receive information concerning the applicantÕs history of drug crimes; hence, he could be arrested if returned to Iran and maltreated, since border policing often times occurs outside the law. The Court concluded that it could not rule out the possibility that the applicant might be re-tried in Iran for the same crime. Based on the evidence presented before it [art. 8(6) of the Iranian Drug Act, provides for execution of individuals convicted of possession of more than thirty grams of heroin], the Court adjudged the applicant to be in danger of being executed if returned to Iran. Protocol No. 6 to the ECHR Concerning the Abolition of the Death Penalty [Strasbourg, 28.IV.1983], to which Germany is a party, explicitly regulates deportations of individuals to states where the deportee faces capital punishment. Article 1 of this Protocol states:

ÒThe death penalty shall be abolished. No one shall be condemned to such penalty or executed.Ó


1.Convention for Protection of Human Rights and Fundamental Freedoms, 1950, Council of Europe.
2.The percentage was set to be roughly three to five percent by Buergenthal in International Human Rights in a Nutshell, Thomas Buergenthal, 1988. West Publishing Co.
3.Press Association Newsfile, January 17, 1997.
4. The Guardian, January 18, 1997.
5 ibid.
6.United Nations Convention Relating to the Status of Refugees, adopted by the Conference of Plenipotentiaries on the Status of Refugees and Stateless Persons (adopted 28 July 1951).
7. Court of Appeal, Imm. AR 459, 2 May 1995.
8. Khashayar Behbanain, Appeal Against Deportation, London, England, THE IRANIAN Issue No. 9, Feb & March 1997.
9. ibid.
11. Peter Feuilherade, Merchants of death, The Middle East, August 1991.
12. IRIB 6/15.
13.Jumhuri Islami 7/mehr/75 (Sept., 28, 1996), as cited in Gozareh, Liga-Iran, No. 18/year 3/ Oct & Nov 1996.
14.Keyhan 25/Farvardin/75 (April 13, 1996), as cited in Gozareh, Liga-Iran, No. 16/year 3/ June & July 1996.