I. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION
59. The Court recalls at the outset that Contracting States have the right, as a matter of well-established international law and subject to their treaty obligations including the Convention, to control the entry, residence and expulsion of aliens. However, in exercising their right to expel such aliens, Contracting States must have regard to Article 3 of the Convention which enshrines one of the fundamental values of democratic societies. The expulsion of an alien may give rise to an issue under this provision where substantial grounds have been shown for believing that the person in question, if expelled, would face a real risk of being subjected to treatment contrary to Article 3 in the receiving country. In such circumstances, Article 3 implies an obligation not to expel the individual to that country (e.g. the Ahmed v. Austria judgment of 17 December 1996, Reports of Judgments and Decisions 1996-VI, §§ 38-39, and the Chahal v. the United Kingdom judgment of 15 November 1996, Reports 1996-V, §§ 73-74).
60. In determining whether it has been shown that the applicant runs a real risk, if deported to Tanzania, of suffering treatment proscribed by Article 3, the Court will assess the issue in the light of all the material placed before it, or, if necessary, material obtained proprio motu (see the Vilvarajah and Others v. the United Kingdom judgment of 30 October 1991, Series A no. 215, p. 36, § 107, and the HLR v. France judgment of 29 April 1997, Reports 1997-III, p. 758, § 37). Ill-treatment must also attain a minimum level of severity if it is to fall within the scope of Article 3, which assessment is relative, depending on all the circumstances of the case.
61. The Court recalls that the applicant arrived in the United Kingdom from Tanzania on 9 February 1995, where he claimed asylum. In the domestic procedures concerning his asylum application, his claim was based on his membership of the CUF, an opposition party in Tanzania and the fact that he had been detained and tortured in Zanzibar prior to his departure. He also claimed that his brother had been detained and had died due to ill-treatment and that the authorities were accusing him of tarnishing Tanzania's good name, increasing the risk that he would be detained and ill-treated on his return.
62. The Government have urged the Court to be cautious in taking a different view of the applicant's claims than the Special Adjudicator who heard him give evidence and found him lacking in credibility. The Court notes however that the Special Adjudicator's decision relied, inter alia, on a lack of substantiating evidence. Since that decision, the applicant has produced further documentation. Furthermore, while this material was looked at by the Secretary of State and by the courts in the judicial review proceedings, they did not reach any findings of fact in that regard but arrived at their decisions on a different basis – namely, that even if the allegations were true, the applicant could live safely in mainland Tanzania, the "internal flight" solution.
63. The Court has examined the materials provided by the applicant and the assessment of them by the various domestic authorities. It finds no basis to reject them as forged or fabricated.
64. The Court accepts that the applicant was arrested and detained because he was a member of the CUF opposition party and had provided them with financial support. It also finds that he was ill-treated during that detention by, inter alia, being suspended upside down, which caused him severe haemorrhaging through the nose. In the light of the medical record of the hospital which treated him, the apparent failure of the applicant to mention torture at his first immigration interview becomes less significant and his explanation to the Special Adjudicator – that he did not think he had to give all the details until the full interview a month later – becomes far less incredible. While it is correct that the medical notes and death certificate of his brother do not indicate that torture or ill-treatment was a contributory factor in his death, they did give further corroboration to the applicant's account which the Special Adjudicator had found so lacking in substantiation. They showed that his brother, who was also a CUF supporter, had been detained in prison and that he had been taken to hospital from the prison where he died. This is not inconsistent with the applicant's allegation that his brother had been ill-treated in prison.
65. The question remains whether, having sought asylum abroad, the applicant is at risk of ill-treatment if he returns home. claimed asylum in the United Kingdom, informed the immigration officer in her interview that the police came to her house on a number of occasions looking for her husband and making threats. This is consistent with the information provided about the situation in Pemba and Zanzibar, where CUF members have in the past suffered serious harassment, arbitrary detention, torture and ill-treatment by the authorities (paragraphs 38-46 above). This involves ordinary members of the CUF and not only its leaders or high profile activists. The situation has improved to some extent, but the latest reports throw doubt on the seriousness of reform efforts and refer to continued problems faced by CUF members (paragraph 46). The Court concludes that the applicant would be at risk on return to Zanzibar of being arrested, detained and suffering a recurrence of ill-treatment.
67. The Government rely on the “internal flight” option, arguing that even assuming that the applicant was at risk in Zanzibar, the situation in mainland Tanzania was more secure. The documents provided by the parties indicate that human rights infringements were more prevalent in Zanzibar and that CUF members there suffered more serious persecution (paragraphs 47-49 above). It nonetheless appears that the situation in mainland Tanzania is far from satisfactory and discloses a long-term, endemic situation of human rights problems. Reports refer in general terms to police in Tanzania ill-treating and beating detainees (paragraph 46) and to members of the Zanzibari CCM visiting the mainland to harass CUF supporters sheltering there (paragraph 49). Conditions in the prisons on the mainland are described as inhuman and degrading, with inadequate food and medical treatment leading to life-threatening conditions (paragraphs 44 and 46). The police in mainland Tanzania may be regarded as linked institutionally to the police in Zanzibar as part of the Union and cannot be relied on as a safeguard against arbitrary action (cf. the Chahal case, cited above, p. 1861, § 104, where the applicant Sikh was at particular risk of ill-treatment within the Punjab but could not be considered as safe elsewhere in India as the police in other areas were also reported to be involved in serious human rights violations). There is also the possibility of extradition between Tanzania and Zanzibar (see the Special Adjudicator's decision cited at paragraph 33 above and the report cited at paragraph 48).
68. The Court is not persuaded therefore that the internal flight option offers a reliable guarantee against the risk of ill-treatment. It concludes that the applicant's deportation to Tanzania would breach Article 3 as he would face a serious risk of being subjected there to torture or inhuman and degrading treatment.
69. The applicant's complaints concerning the remedies available to him in respect of the breach of Article 3 fall, in the circumstances of this case, to be examined under Article 13 of the Convention (see the İlhan v. Turkey judgment [GC], no. 22277/93, ECHR 2000-VII, 27.06.00).
III. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION
75. The Court reiterates that Article 13 of the Convention guarantees the availability at the national level of a remedy to enforce the substance of the Convention rights and freedoms in whatever form they might happen to be secured in the domestic legal order. The effect of Article 13 is thus to require the provision of a domestic remedy to deal with the substance of an "arguable complaint" under the Convention and to grant appropriate relief, although Contracting States are afforded some discretion as to the manner in which they conform to their Convention obligations under this provision. The scope of the obligation under Article 13 varies depending on the nature of the applicant's complaint under the Convention. Nevertheless, the remedy required by Article 13 must be "effective" in practice as well as in law. In particular, its exercise must not be unjustifiably hindered by the acts or omissions of the authorities of the respondent State (see the Aksoy v. Turkey judgment of 18 December 1996, Reports 1996-VI, p. 2286, § 95; the Aydın v. Turkey judgment of 25 September 1997, Reports 1997-VI, pp. 1895-96, § 103; the Kaya v. Turkey judgment of 19 February 1998, Reports 1998-I, pp. 329-30, § 106).
76. On the basis of the evidence adduced in the present case, the Court finds that the applicant's claim that he risked inhuman and degrading treatment contrary to Article 3 of the Convention if expelled to Tanzania is "arguable" for the purposes of Article 13 (see the Boyle and Rice v. the United Kingdom judgment of 27 April 1988, Series A no. 131, p. 23, § 52, and the Kaya v. Turkey judgment, cited above, p. 330, § 107). The Court has therefore examined whether he had available to him an effective remedy against the threatened expulsion.
77. In its Vilvarajah and Others v. the United Kingdom judgment (cited above, p. 39, § 123) and its Soering v. the United Kingdom judgment of 7 July 1989 (Series A no. 161, pp. 47-48, §§ 121-24), the Court considered judicial review proceedings to be an effective remedy in relation to the complaints raised under Article 3 in the contexts of deportation and extradition. It was satisfied that English courts could effectively control the legality of executive discretion on substantive and procedural grounds and quash decisions as appropriate. It was also accepted that a court effecting judicial review would have power to quash a decision to expel or deport an individual to a country where it was established that there was a serious risk of inhuman or degrading treatment, on the ground that in all the circumstances of the case the decision was one that no reasonable Secretary of State could take. This view was followed in the more recent judgment of D. v. the United Kingdom (cited above, pp. 797-98, §§ 70-71).
78. While the applicant argued that the courts in judicial review applications will not reach findings of fact for themselves on disputed issues, the Court is satisfied that the domestic courts give careful scrutiny to claims that an expulsion would expose an applicant to the risk of inhuman and degrading treatment. The Court is not convinced that the fact that this scrutiny takes place against the background of the criteria applied in judicial review of administrative decisions, namely, rationality and perverseness, deprives the procedure of its effectiveness. The substance of the applicant's complaint was examined by the Court of Appeal, and it had the power to afford him the relief he sought. The fact that it did not do so is not a material consideration since the effectiveness of a remedy for the purposes of Article 13 does not depend on the certainty of a favourable outcome for an applicant (see the Vilvarajah and Others judgment, loc. cit., p. 39, § 122).
79. The Court concludes therefore that the applicant had available to him an effective remedy in relation to his complaints under Article 3 of the Convention concerning the risk of ill-treatment on expulsion to Tanzania. Accordingly there has been no breach of Article 13.