Universal-MigrationHRlaw-PG-no-6-Publications-PractitionersGuide-2014-eng

MIGRATION AND INTERNATIONAL HUMAN RIGHTS LAW | 121
e) Absolute rights and the obligation of non-refoulement
It is well-established that, where the right which may be violated following
transfer is an absolute right (such as freedom from torture or other
cruel, inhuman or degrading treatment or punishment), the principle of
non-refoulement is equally absolute and is not subject to any exceptions,
whether in law or in practice. 353 This rule applies to all expulsions,
regardless of considerations of national security, or other strong public
interests, economic pressures or heightened influx of migrants. 354 In
this the protection of the human rights principle of non-refoulement
is broader than that of its refugee law equivalent. 355 There is no human
rights law equivalent to the limitations contained in Article 33.2
of the Geneva Refugee Convention, excluding from protection persons
who are a security threat or who have committed a serious crime (see,
above, Section 1). Consequently, if the expulsion proceedings address
only whether the applicant can claim to be a victim of persecution according
to the Geneva Refugee Convention, this will not be sufficient for
the purposes of international human rights law, as the national authorities
must directly address the issue of real risk of serious human rights
violations in the country of destination, regardless of the potential refugee
status of the applicant. 356 As is also clear from the jurisprudence of
the European Court of Human Rights, what matters are not the reasons
for expulsion, but only the risk of serious violations of human rights
in the country of destination. 357 The Court held in Saadi v. Italy that,
consistently with the absolute nature of Article 3 rights, protection of
353 Zhakhongir Maksudov and Others v. Kyrgyzstan, CCPR, op. cit., fn. 324, para. 12.4; Tapia
Paez v. Sweden, CAT, Communication No. 39/1996, Views of 28 April 1997, para. 14.5; Tebourski
v. France, CAT, Communication No. 300/2006, Views of 11 May 2007, paras. 8.2 and
8.3: “Once this person alludes to a risk of torture under the conditions laid down in article 3,
the State Party can no longer cite domestic concerns as grounds for failing in its obligation
under the Convention to guarantee protection to anyone in its jurisdiction who fears that he
is in serious danger of being tortured if he is returned to another country”. See also, Dadar
v. Canada, CCPR, op. cit., fn. 330, para. 8.8; and Concluding Observations on Slovenia, CAT,
Report of the Committee against Torture to the General Assembly, 55 th Session, UN Doc.
CAT A/55/44, p. 34 (2000), para. 206; Toirjon Abdussamatov and Others v. Kazakhstan,
CAT, Communication no. CAT/C/48/D/444/2010, Views of 1 June 2012, para. 13.7; Saadi v.
Italy, ECtHR, op. cit., fn. 309, para. 127; Chahal v. United Kingdom, ECtHR, op. cit., fn. 43,
para. 79.
354 M.S.S. v. Belgium and Greece, ECtHR, op. cit., fn. 324, paras. 223–224.
355 Saadi v. Italy, ECtHR, op. cit., fn. 309, para. 138; Chahal v. United Kingdom, ECtHR, op. cit.,
fn. 43, para. 80.
356 Ryabikin v. Russia, ECtHR, Application No. 8320/04, Judgment of 19 June 2008,. para. 120;
Sidikovy v. Russia, ECtHR, Application No. 73455/11, Judgment of 20 June 2013, para. 149
(“the protection afforded by Article 3 of the Convention is in any event broader than that provided
for in Articles 32 and 33 of the 1951 United Nations Convention relating to the Status
of Refugees”); Toirjon Abdussamatov and Others v. Kazakhstan, CAT, op. cit., fn. 353, paras.
13.7–13.9 where the Committee held that an examination by national courts under the
Geneva Refugee Convention was insufficient to satisfy the State’s obligations under Article 3
CAT.
357 Saadi v. Italy, ECtHR, op. cit., fn. 309, para.138