Monday, 28 November 2016

The Case Law of the European Convention on Human Rights on the Question of Asylum Seekers and Refugees

There are many international legal instruments protecting asylum seekers and refugees from an abusive behaviour of the receiving  State. The Geneva Convention of 1951 on refugees is one of them. But none of them provides for a judicial protection, namely a protection which is given by a court of justice with the force of a binding judgment. Consequently victims of violations have recourse to the European Court of human Rights, which applies the European Convention on Human Rights, and eventually provides clauses covering certain violations of asylum seekers and refugees rights against the perpetrator European State.

First of all it should be underlined that according to Article 1 of the European Convention «[t]he High Contracting Parties shall secure to everyone within their jurisdiction the rights and freedoms defined in Section 1 of this Convention». By referring to «everyone» the Convention does not make any distinction between nationals and non-nationals, and, hence, aliens seeking for protection are also covered. On the other hand, according to the case-law, the notion of «jurisdiction» is not only referring to territorial jurisdiction, within the boundaries of a State, but is extended to all other forms of jurisdiction, whenever the long hand of a  State’s power lies (extra-territorial jurisdiction). This means that the Court, in its turn, has the capacity to protect a person even outside the limits of a State, in the high seas or into another territory, provided that the State in question has exercised effective control upon the person.

Coming now to the provisions of the European Convention which could apply to the circumstances of an asylum seeker or a refugee:

Article 2 of the convention provides:
Ëveryone’s right to life shall be protected by law. No one shall be deprived  of his life intentionally […].
The right to life gives a potential ground of invocation, in a case where the authorities have taken the life of an asylum seeker or a refugee intentionally. The case-law of the Court allows its invocation, not only when actual death occurs, but also if the circumstances of a case show that the authorities intended to kill the person, albeit unsuccessfully.

Article 3 of the Convention provides that
«No one shall be subjected to torture or to inhuman or degrading treatment or punishment».
This article, in its second part (inhuman treatment or punishment) has been repeatedly used by applicants asylum seekers and refugees to protect them from abusive treatment of the authorities. In M.S.S versus Belgium and Greece the applicant, an Afghani citizen entered the European Union through Greece and travelled to Belgium , where he applied for asylum. According to the EU Dublin rules, Greece was held to be the responsible Member State for the examination of his asylum application, as the State of the first entry. Therefore the Belgian authorities transferred him there where he faced detention in insalubrious conditions. When he was freed, he was living on the streets without any material support. The Court found a violation of Article 3 against Belgium, for sending the applicant back to Greece, while knowing that the conditions there were awful, and against Greece, for the conditions of detention but also the post-detention living conditions of the applicant.

In the case of Hirsi Jamaa versus Italy the applicants were part of a group of about 200 individuals who left Libya in 2009, aboard three vessels with the aim of reaching the Italian coast. On May 6 2009, when the vessels were on the high seas, they were intercepted by ships of the Italian Revenue Police and the Coast-guard. The occupants of the intercepted vessels were transferred onto Italian military ships and returned to Libya. The Court, having first examined whether it had jurisdiction to adjudicate the case, it concluded that there had been a violation of Article 3 of the Convention in that the return of the applicants to Libya constituted a transgresion of Article 3, bacause of the conditions of life there, and the risk of refoulement of the applicants to the countries of origin.

But the Court had to examine another complaint of the applicants as well, that of Article 4 of Protocol 4, applied to a case involving the collective removal of aliens to a third State. The Court found that the transfer of applicants to Libya had been carried out without any prior examination of each applicant’s individual situation. The applicants had not been subjected to any identification procedure by the Italian authorities, which had restricted themselves to embarking and disembarking them in Libya. The removal of the applicants had been of a collective nature in breach of Article 4 of Protocol 4.

Finally in a Greek case, in which the applicant’s request for asylum had lasted for 14 years, the Court found a violation of Article 8, protecting private and family life, because it considered that the lenght of the asylum procedure constituted a breach of his private life, in that it unduly extended the angst of the applicant, and pushed him to unmeritorious conditions of life.

From these three cases, which represented only a part of examined or pending cases, clearly transpires that the European Convention, although it has no specific clauses protecting migrants, is a precious tool for their protection. Articles 2, 3, 8, and 4 of Protocol 4 cover almost all the circumstances that this category of people face, away from their homes and in very bad conditions of life.

Christos Rozakis, Emeritus Professor, former Vice President of the European Court of Human Rights 

No comments: