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

MIGRATION AND INTERNATIONAL HUMAN RIGHTS LAW | 121e) Absolute rights and the obligation of non-refoulementIt is well-established that, where the right which may be violated followingtransfer is an absolute right (such as freedom from torture or othercruel, inhuman or degrading treatment or punishment), the principle ofnon-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 publicinterests, economic pressures or heightened influx of migrants. 354 Inthis the protection of the human rights principle of non-refoulementis broader than that of its refugee law equivalent. 355 There is no humanrights law equivalent to the limitations contained in Article 33.2of the Geneva Refugee Convention, excluding from protection personswho are a security threat or who have committed a serious crime (see,above, Section 1). Consequently, if the expulsion proceedings addressonly whether the applicant can claim to be a victim of persecution accordingto the Geneva Refugee Convention, this will not be sufficient forthe purposes of international human rights law, as the national authoritiesmust directly address the issue of real risk of serious human rightsviolations in the country of destination, regardless of the potential refugeestatus of the applicant. 356 As is also clear from the jurisprudence ofthe European Court of Human Rights, what matters are not the reasonsfor expulsion, but only the risk of serious violations of human rightsin the country of destination. 357 The Court held in Saadi v. Italy that,consistently with the absolute nature of Article 3 rights, protection of353 Zhakhongir Maksudov and Others v. Kyrgyzstan, CCPR, op. cit., fn. 324, para. 12.4; TapiaPaez v. Sweden, CAT, Communication No. 39/1996, Views of 28 April 1997, para. 14.5; Tebourskiv. France, CAT, Communication No. 300/2006, Views of 11 May 2007, paras. 8.2 and8.3: “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 obligationunder the Convention to guarantee protection to anyone in its jurisdiction who fears that heis in serious danger of being tortured if he is returned to another country”. See also, Dadarv. 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 providedfor in Articles 32 and 33 of the 1951 United Nations Convention relating to the Statusof 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 theGeneva Refugee Convention was insufficient to satisfy the State’s obligations under Article 3CAT.357 Saadi v. Italy, ECtHR, op. cit., fn. 309, para.138