JOINT PARTLY DISSENTING OPINION OF JUDGES GÖLCÃœKLÃœ, MAT SCHER, Sir J OHN FREELAND, BAKA, MIFSUD BONNICI, GOTCHEV AND LEVITS

1.   We agree with the majority that national security considerations could not be invoked to justify ill-treatment at the hands of a Contracting State within its own jurisdiction, and that in that sense the protection afforded by Article 3 (art. 3) is absolute in character.  But in our view the situation is different where, as in the present case, only the extra-territorial (or indirect) application of the Article (art. 3) is at stake.  There, a Contracting State which is contemplating the removal of someone from its jurisdiction to that of another State may legitimately strike a fair balance between, on the one hand, the nature of the threat to its national security interests if the person concerned were to remain and, on the other, the extent of the potential risk of ill-treatment of that person in the State of destination.  Where, on the evidence, there exists a substantial doubt as to the likelihood that ill-treatment in the latter State would indeed eventuate, the threat to national security may weigh heavily in the balance.  Correspondingly, the greater the risk of ill-treatment, the less weight should be accorded to the security threat.

2.   As to the circumstances of the present case, we differ from the conclusion of the majority on the question whether it has been substantiated that there is a real risk of Mr Chahal being subjected to treatment contrary to Article 3 (art. 3) if he were to be returned to India.  We accordingly disagree (and would do so even if we were to accept the reasoning of the majority as to the point dealt with in paragraph 1 above) with the finding that, in the event of the decision to deport him to that country being implemented, there would be a violation of the Article (art. 3).

3.   In the Soering case, the Court was also concerned with the prospective removal of an applicant to another country.  In its judgment in that case (first cited at paragraph 74 of the present judgment), the Court stated (p. 35, para . 90) that it "is not normally for the Convention institutions to pronounce on the existence or otherwise of potential violations of the Convention.  However, where an applicant claims that a decision to extradite him would, if implemented, be contrary to Article 3 (art. 3) by reason of its foreseeable consequences in the requesting country, a departure from this principle is necessary, in view of the serious and irreparable nature of the alleged suffering risked, in order to ensure the effectiveness of the safeguard provided by that Article (art. 3) ..."

4.   In that case, the extradition of the applicant was sought by the requesting State to meet a criminal charge carrying the death penalty, in circumstances which led the Court to conclude that the likelihood of his being exposed to the "death row phenomenon" was such as to bring Article 3 (art. 3) into play.  The Court went on to conclude, after an analysis of what in practice the "death row phenomenon" would involve in the applicant's case, that his extradition would expose him to "a real risk of treatment going beyond the threshold set by Article 3 (art. 3)".

5.   The applicant in the Soering case (which also differed on the facts in that there was no national security issue to be taken into consideration) was, therefore, in the grip of a legal process involving risks to him which were significantly easier to predict and assess than those which would be run by the first applicant in the present case if he were now to be returned to India.  The consequences of the implementation of the deportation order against the latter are of a quite different, and much lower, order of foreseeability .

6.   In the present case, the Court has had before it a mass of material about the situation in India and, more specifically, Punjab from 1990 onwards (although, we would note, none more recent than the United States Department of State report on India of March 1996 - see paragraph 53 of the judgment).  The Court concludes in paragraph 86 (and we agree) that "... although the historical position is of interest in so far as it may shed light on the current situation and its likely evolution, it is the present conditions which are decisive".

7.   As regards present conditions, it seems clear that there have in recent years been improvements in the protection of human rights in India , especially in Punjab , where violence reached a peak in 1992, and that progress has continued since the Commission's consideration of the case (see paragraph 101 of the judgment).  On the other hand, allegations persist of serious acts of misconduct by some members of the Punjab security forces, acting either within or outside the boundaries of that State, and by some members of other security forces acting elsewhere in India (paragraphs 102-04).  Although the probative value of some of the material before the Court may be open to question, we are satisfied that there is enough there to make it impossible to conclude that there would be no risk to Mr Chahal if he were to be deported to India, even to a destination outside Punjab if he were to choose one.

8.   The essential difficulty lies in quantifying the risk.  In reaching their assessment, the majority of the Court say that they are not persuaded that the assurances given by the Indian Government would provide Mr Chahal with an adequate guarantee of safety and consider that his high profile would be more likely to increase the risk to him than otherwise (paragraphs 105 and 106).  It is, however, arguable with equal, if not greater, force that his high profile would afford him additional protection.  In the light of the Indian Government's assurances and the clear prospect of a domestic and international outcry if harm were to come to him, there would be cogent grounds for expecting that, as a law-abiding citizen in India, he would be treated as none other than that.  It could well be that the existence or extent of any potential threat to him would largely depend on his own future conduct.

9.   Our overall conclusion is that the assessment of the majority leaves too much room for doubt and that it has not been "substantiated that there is a real risk" of the first applicant's being subjected to treatment contrary to Article 3 (art. 3) if he were now to be deported to India.  A higher degree of foreseeability of such treatment than exists in this case should be required to justify the Court in finding a potential violation of that Article (art. 3).

10.     Otherwise, and given its conclusions on the Article 3 (art. 3) issue, we agree with the findings of the Court, except Mr Gölcüklü , as appears from his following separate opinion.