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 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.

 

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

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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