Episode twelve: The optimist says the bottle is half-empty

You may wonder why I keep stressing the weaknesses of the Strasbourg case law rather than choosing to focus on its strengths.

 

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In a nutshell, this is because I want a strong European Court of Human Rights, a court that is not shy in protecting human rights.

If the weaknesses that affect the Strasbourg case law are ignored, it’s as if we had already given up on the idea of setting up a strong human rights agenda in Europe.

Strategically this is not even useful as it makes it difficult to refute attacks on the Court by those who, coming from the opposite end, say that the Court is dispensing far too many rights.

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Episode eleven: Tamils being returned to civil war

In this episode I look at another landmark human rights case from the late 1980s/early 1990s.

 

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Vilvarajah v. the United Kingdom concerned five Tamil young men whose asylum application was rejected and who were returned to the Sri Lankan conflict. Their lawyers were so concerned for their welfare that they followed them to Sri Lanka and discovered that three of them had been subjected to torture or inhuman treatment.

Both the British government and the European Court of Human Rights accepted this evidence. Still the Court ruled in 1991 that the applicants removal had not breached Article 3 of the European Convention on Human Rights.

The Court’s position was that what had happened to these individuals could have happened to any young Tamil male. Therefore the applicants had not been at individual risk of inhuman treatment and Article 3 was not engaged.

It took over twenty years for the Court to amend its position on this point.

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Episode ten: Who was Soering?

How does the European Court on Human Rights respond to applicants who claim they cannot be sent to another country because, once there, they would face inhuman treatment?

 

No-one can be subjected to torture or inhuman or degrading treatment or punishment. This is inscribed in Article 3 of the European Convention on Human Rights. Right from the beginning, Article 3 was understood to probably prevent a European state from taking a person to a country where inhuman treatment would be inflicted.

In practice, however, no applicant managed in the early years of the system to make such an Article 3 claim successfully. This changed in 1989 when the Court accepted that Mr Soering, a German citizen suspected of murder in the USA, shouldn’t be extradited from the UK because he risked being subjected to the degrading treatment of death row.

Soering was not a typical case, however. More common cases involved failed asylum seekers who were turning to the Court for protection against removal to their country of origin. One early example is the Cruz Varas v. Sweden case. Mr Cruz Varas had flown the Pinochet regime in Chile, where he claimed to have been subjected to torture and raped in detention.

In this episode I discuss how the European Court responded to his Article 3 claim.

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Episode nine: When my father’s family fled their home

What you would you do if you and your loved ones were at risk?

 

In this episode I recall some of the stories of migration that I grew up with as a child in Belgium. In 1940, my father’s family, which included 10 children, felt they had no choice but to flee their home in order to avoid the death and destruction of World War II.

They took to the road with just one suitcase each and were fortunate to arrive in a village full of strangers who were generous enough to house them and keep them safe for an entire Summer.

When thinking of migrants’ rights, I think it is important to remember the human beings behind the cases we discuss. If we close our borders to refugees and asylum seekers, we are failing to treat people in the same way we would hope to be treated if we were ever forced to flee our own country.

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Episode eight: The inconsistent success of migrant human rights cases in the 1990s

In this episode I discuss how the growing success of some migrants at the European Court of Human Rights saw the emergence of a case law “lottery” in the 1990s.

 

We consider the case of Berrehab about a Moroccan man who was married to a Dutch woman and who lived in the Netherlands. When the couple separated, the authorities decided to expel him despite the fact that he was seeing his daughter four times a week.

The family applied to the European Court of Human Rights and the Court found a violation of the European Convention on Human Rights in 1988. This was a first in a migrant case.

The Berrehab judgment marked a turning point as a number of verdicts deciding that expulsion breached the right to family life followed. Just a few years down the line, however, most migrants started to lose again.

This led to the case law being characterised as a lottery.

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