Procedures are very important. Before a court, they can make or break a case. This is as true at the European Court of Human Rights as anywhere else. This podcast highlights three areas of concern in relation to migrant cases.
The first concerns provisional orders. The Court can order a defendant state to keep a migrant on its territory, until it actually decides whether sending back this person would violate or not the European Convention on Human Rights. However, such provisional orders are increasingly rare, with predictable negative effects on applicants.
The second area of concern is that the Court encourages parties to reach ‘friendly settlements’. Even if the dispute is satisfactorily resolved for the applicant (which it not always is – for example, the state may grant a residence permit, but only for a limited period), there remains the problem that no general lesson can be drawn from a case that ends on a friendly settlement. The underlying problematic situation, if any, will probably remain unchanged.
Thirdly, it is regrettable that the Court hardly allows itself to discuss reparations. In other words, it declares whether a violation has occurred but it normally does not say what the state must do to repair the violation. In other words, what should happen after the judgment is not spelt out, leaving room for interpretation as to what human rights law requires.
As we come towards the end of this series, it is important to think about ways to remedy the weaknesses that have been identified. In this podcast, I recommend that the European Court of Human Rights expands its interpretation of especially three articles of the European Convention on Human Rights.
Article 3 concerns inhuman and degrading treatment. Its application is dependent upon a ‘high threshold’ being met. Judges should try to put themselves in the shoes of migrant applicants before accepting the idea that this threshold is not met.
Article 6 is about having access to an independent and impartial judge and to be legally represented. As previously stressed, it is simply terrible that Article 6 is held not to apply to immigration matters. Maaouia must be reversed.
Article 14 concerns the prohibition of discrimination. The Court tends not to use it very much in its case law, preferring to focus on substantive rights. However, it is very important that the Court starts recognising and denouncing practices of discrimination more often – including on ground of nationality.