Episode 29: Let us also think about the Strasbourg procedures

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.

 

Episode 28: The way forward is to expand ECHR guarantees

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.

To download a copy of this podcast, right-click the following link: HRM28 The way forward- Expanding Articles 3:8, 6 and 14 ECHR

Episode 27: Jesus Vélez Loor has a story worth turning into a film

No one human rights institution can deliver a perfect world. This is true even of the Inter-American Court of Human Rights which has been greatly praised in this series.

 

One weakness is that the Inter-American Court decides only a few cases a year. As a result only a limited number of victims find redress at San José. For example, Jésus Vélez Loor, whose case was discussed earlier, was extremely lucky that his case was processed up to the Court. But his complaints were not all accepted. Most importantly in his perspective, the Court did not declare he had been tortured.

The judgment also could not give him back his health or previous life. What Jésus would nonetheless have liked was to have his ordeal and the Inter-American proceedings turned into a film. But the Court did not order this to happen (although it ordered many other things).

Still, if there is any filmmaker interested out there, Jésus would surely love to hear from you!

To download a copy of this podcast, right-click the following link: HRM27 Jesus Vélez Loor has a story worth turning into a film

Episode 25: The stateless of Europe

All through the summer, the immediate needs of the unprecedented number of refugees arriving in Europe has held the media spotlight. We should not forget, however, that long term migrants can also face great difficulties. This episode draws attention to the plight of people who live in Europe without enjoying any status in law.

 

The law says their presence is not authorised. But the fact is that they are here. Granted no residence permit, they can neither work legally nor access social benefits. A great number of them cannot be returned to their country of origin. This can go on for years and for decades. They are de facto stateless. How can they live in dignity?

Strangely, the European Court of Human Rights has found that this situation does not raise any issue under the Convention. This is because of its past interpretations of Article 3, Article 8 and Article 6 ECHR.

In other words, by respecting the logic of its previous case law, the Court ends up reaching a conclusion that is entirely illogical from a human rights perspective …

To download a copy of this podcast, right-click the following link: HRM25 The stateless of Europe

 

Episode 24: Vainly knocking on the shut doors of Strasbourg

When a door is firmly shut, getting it to open can be very difficult. This image is useful to understand the effect of a finding by the European Court of Human Rights that a provision of the European Convention on Human Rights is either not applicable or not violated.

 

(If you have problems with the embedded player use this link to listen).

Strasbourg negative rulings are often categorical. They tend to get repeated from one case to the next, in a fairly automatic manner. They result in applicants being summarily rejected when they come knocking on the Strasbourg doors.

A violation verdict is less categorical. It effects an opening – but how wide this opening is typically needs to be tested over time.

Maaouia is an example of shut doors that was examined in the last episode. In this episode, I discuss other examples: Abdulaziz, Cabales and Balkandali (no right to family reunion), N. v. UK (return to an early death), and Saadi v. UK (immigration detention for administrative convenience).

To download a copy of this podcast right-click this link and choose ‘Download Linked File’ or ‘Save Link As…’.

Please note that the podcast will take a short break over the summer and return for the final six episodes in September.

Episode 23: When the Strasbourg doors are shut (Maaouia)

Lawyers like to discuss cases that offer openings and avenues of redress, but one cannot assess the benefits of the Strasbourg system without also considering its failures. This episode focuses on Maaouia v. France.

 

(If you have problems with the embedded player use this link to listen).

Maaouia established that immigration decisions were not subject to Article 6 ECHR, the provision of the Convention that lays down fair trial guarantees.

In concrete terms, this means that decisions related to e.g. asylum, expulsion, family reunion and residence permits can be taken by administrative authorities without the persons affected having a right, under the Convention, to have their claims heard by an independent judge.

This Grand Chamber decision was adopted in 2000, and it still holds to this day. Its effect was to shut the Strasbourg doors categorically in this respect, with tremendously negative implications for migrants’ rights.

To download a copy of this podcast right-click this link and choose ‘Download Linked File’ or ‘Save Link As…’.

Episode 22: Why MSS is so important

Episode 21 explained what happened in the case of MSS, but we still need to discuss why the case is so important.

 

(If you have problems with the embedded player use this link to listen).

One point is that it triggered a revision of the so-called ‘Dublin regulation’.

Another is that migrants often lose at Strasbourg because they cannot prove their allegations. MSS could not prove that he had personally suffered from the situation in Greece generally denounced by NGOs either. Still, the Court accepted his allegations.

Also, the Court was persuaded to overturn its own case law. Until then, the lead case of KRS v. the United Kingdom had meant that a transfer to Greece was never considered to entail a violation of the Convention. In a sense, MSS should have been declared inadmissible. However, the Court sided not with the states but with the applicant and civil society.

To download a copy of this podcast right-click this link and choose ‘Download Linked File’ or ‘Save Link As…’.

Episode 21: MSS sees Belgium and Greece condemned

In the sea of Strasbourg losses for migrants, MSS stands out as a resounding victory, which we start exploring in this episode.

 

(If you have problems with the embedded player use this link to listen).

The applicant was an Afghani national who had worked for the Allied forces. Fearing for his life, he left his country. He arrived in Europe through Greece. He then moved to Belgium where he claimed asylum. Belgium transferred him back to Greece. There he was subject to appalling conditions.

He kept in contact with his Belgian legal representative so that his transfer did not put an end to his Strasbourg application.

The Strasbourg Court found that Belgium and Greece had each violated the European Convention on Human Rights. This was on several counts, well worth detailing.

To download a copy of this podcast right-click this link and choose ‘Download Linked File’ or ‘Save Link As…’.

Episode 20: Tabitha’s story

It would be wrong to think that the European Court of Human Rights is incapable of finding immigration detention in violation of the European Convention on Human Rights.

For example, when a lone five year old was kept in a detention centre in Belgium for two months, the Court found violation after violation of the Convention.

However, this raises the question: how bad must the treatment of a migrant be before the Strasbourg Court reacts?

 

(If you have problems with the embedded player use this link to listen).

To download a copy of this podcast right-click this link and choose ‘Download Linked File’ or ‘Save Link As…’.

Episode nineteen: Immigration detention not to be resorted to lightly

In this episode, I discuss the judgment of the Inter-American Court in the case of Vélez Loor v. Panama.

 

(If you have problems with the embedded player use this link to listen).

The victim was a migrant who had been caught inexplicably wandering in the jungle by the Panamanian police. He was detained. At some stage, he thought he would die without his family ever knowing what had happened to him.

The government of Panama accepted responsibility regarding the material conditions of his ten-month detention but disputed other claims.

Amongst other things, the Inter-American Court ruled that immigration detention should only ever be used as a last resort.

As migrants are detained in their thousands in Europe, the judgment reminds us that immigration detention is not a phenomenon that goes without saying.

To download a copy of this podcast right-click this link and choose ‘Download Linked File’ or ‘Save Link As…’.