Relatively Absolute? The Undermining of Article 3 ECHR in Ahmad v UK
| Date | 01 May 2013 |
| Author | Francesco Messineo,Natasa Mavronicola |
| DOI | http://doi.org/10.1111/1468-2230.12025 |
| Published date | 01 May 2013 |
CASES
Relatively Absolute? The Undermining of Article 3
ECHR in Ahmad vUK
Natasa Mavronicola and Francesco Messineo*
The recent decision of the European Court of Human Rights in Ahmad vUK dangerously
undermines the well-established case law of the Court on counter-terrorism and non-refoulement
towards torture, inhuman and degrading treatment or punishment. Although ostensibly rejecting
the ‘relativist’ approach to Article 3 ECHR adopted by the House of Lords in Wellington v
Secretary of State for the Home Department, the Court appeared to accept that what is a breach of
Article 3 in a domestic context may not be a breach in an extradition or expulsion context. This
statement is difficult to reconcile with the jurisprudence constante of the Court in the last fifteen
years, according to which Article 3 ECHR is an absolute right in all its applications, including
non-refoulement, regardless of who the potential victim of torture, inhuman or degrading treatment
is, what she may have done, or where the treatment at issue would occur.
INTRODUCTION
Only rarely do decisions by the European Court of Human Rights (ECtHR)
elicit positive responses from the UK government and the UK media at the same
time. A recent exception was the unanimous judgment of the Fourth Section of
the ECtHR in Babar Ahmad and others vUK1(Ahmad), which found that there
would be no breach of Article 3 of the European Convention on Human Rights
(ECHR) in extraditing a number of terrorist suspects to face trial and probable
imprisonment in ‘super-maximum security’ detention facilities in the United
States of America. The decision was hailed in some quarters as the first sign of the
ECtHR finally showing a common sense approach to terrorism and human
rights.2In fact, certain aspects of the decision undermine the well-established
*Respectively PhD candidate, University of Cambridge and Lecturer in Law, University of Kent,
Canterbury; N.M. wishes to thank Professor David Feldman for being a source of wisdom and support;
F.M. wishes to thank the SHARES Project on Shared Responsibility in International Law at the
Amsterdam Centre for International Law (University of Amsterdam) for their kind hospitality while he
finalised this note. Both authors would like to thank Professor Fiona De Londras and Dr Brian Sloan
for very helpful comments on a previous draft. The usual disclaimers apply. The law is current to the
best of our knowledge as of 24 September 2012.
1Babar Ahmad and others vUK App Nos 24027/07, 11949/08, 36742/08, 66911/09 and 67354/09,
Judgment of 10 April 2012.
2 The UK Home Secretary ‘welcomed’ the decision: http://www.homeoffice.gov.uk/media-
centre/news/Abu-Hamza. See also ‘Abu Hamza extradition ruling praised by David Cameron’
The Guardian 10 April 2012 at http://www.guardian.co.uk/uk/2012/apr/10/abu-hamza-
extradition-praised-david-cameron; J. Rozenberg, ‘European court makes the right call on Abu
Hamza’ The Guardian 10 April 2012 at http://www.guardian.co.uk/law/2012/apr/10/european-
court-abu-hamza-strasbourg; ‘Leading article: A ruling that confounds Strasbourg’s critics’ The
Independent 10 April 2012 at http://www.independent.co.uk/opinion/leading-articles/leading-
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© 2013 The Authors. The Modern Law Review © 2013 The Modern Law Review Limited. (2013) 76(3) MLR 589–619
Published by Blackwell Publishing, 9600 Garsington Road, Oxford OX4 2DQ, UK and 350 Main Street, Malden, MA 02148, USA
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