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 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 six: The different approach of the Inter-American Court of Human Rights

In this episode, we turn to another system of human rights protection and see that the Inter-American Court of Human Rights has made pronouncements which are intended to give rights to migrants.

 

I examine what happened more than thirty years ago, when Costa Rica was facing an influx of refugees from war-thorn neighbouring Nicaragua. This led the Inter-American Court seeming to distance itself from states subjecting naturalisation process to e.g. citizenship tests.

In contrast, the European Court of Human Rights keeps away from pronouncing on matters of nationality, even though these are issues that are of particular importance to migrants and refugees.

So why did the European Convention end up saying nothing about nationality? Could it be that this is because the authors of the Convention perceived the migrant as a threat who needed to be controlled by the state?

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Episode two: What did the Convention say?

In this episode, I go back to the early history of human rights law in Europe in order to understand the foundations of the Strasbourg migrant case law.

 

The European Convention on Human Rights was created in 1950 in the aftermath of the horrors of World War II. It was a remarkable development in the history of human rights and aimed to protect all citizens in Europe from a new descent into dictatorship.

In the process, the question arose as to who should benefit from the protection of the Convention. In particular, those who negotiated the Convention addressed the question of whether foreigners should have the same rights as citizens. The answer they gave was that, in at least two respects – freedom of expression and association and immigration detention – “aliens” should not have exactly the same rights as “citizens”.

It is difficult to think that this fundamental assumption did not impact the development of the Strasbourg migrant case law.

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