Migrants’ avoidance of the European Court of Human Rights concerns us all

This post was published by the Strasbourg Observers earlier today. I am grateful for their permission to re-publish it here.

Every year towards the end of January, the President of the European Court of Human Rights holds a press conference that takes stock of the previous year. This year, President Raimondi reported in his speech that the situation of the Court was ‘generally satisfactory’. Can we be so sure?

Performance even in as sensitive an area as human rights is now often measured in quantitative terms. In line with this trend, the President noted that over 45,000 cases were decided in 2015. Whilst in 2011 the backlog stood at an all-time high of 160,000 pending cases, this has now been reduced to 65,000 cases. Better still, it looks like it will be possible to reduce the backlog further in 2016. The end of the press conference reserved some words for the migrant crisis. Having gripped Europe since the summer, so far, the crisis has not put the Court under strain, although a plan of action is in place in case an influx of Rule 39 requests suddenly materialises.

First an explanation: Rule 39 allows an applicant to request an interim measure. If granted, the Court orders the defendant state to do something during the time it takes for the merits of the applicant’s complaint to be ruled upon. Thousands of migrants have resorted to Rule 39 over the years. They typically ask the Court to order a European state to stay the execution of their removal to their country of origin or another country with which they have links. Many lawyers used to regard Rule 39 as their last chance to ensure that their clients were not taken to a place where they would face torture or possibly even be killed. To cite a famous case, the journalist Gebremedhin would have been removed to Eritrea in 2005, had the Court not ordered France to wait. A Rule 39 interim measure has no incidence on whether the removal will ultimately be ruled to be contrary to the European Convention on Human Rights in the main proceedings. This question is addressed by the Court in due time, after both parties have submitted their arguments and proper deliberation by the judges.

In his recent press conference, Judge Raimondi noted that 24 requests for the application of Rule 39 had been received in 2015 regarding removals to Hungary. These requests emanated from Afghans, Palestinians, Syrians and others who were refusing to be returned to Hungary by states such as Austria, Slovakia, France, Finland or Sweden. Nine of these requests were granted. The latest statistics of the Court indicate that would-be returnees to Hungary were not the only persons to have made Rule 39 requests in 2015: about 1,500 requests were received by the Court (without information being readily available as to how many originated from migrants). Out of these, 161 interim measures were granted. The Court has confirmed to me that half of these (about 80) concerned removals. The other half was mostly about the situation in Crimea and Eastern Ukraine.

The figures are astonishing and thus worth repeating in a slightly different form: migrants are now experiencing such a low rate of success in their Rule 39 requests that not even 100 managed to persuade the Court to stay their removal in 2015. The situation was rather different in 2010. Then, 1,440 requests were granted – out of 3,680 requests made (almost exclusively by migrants). It would be nice to think that the staggering five-year drop in Rule 39 requests made by migrants on the one hand and accepted by the Court on the other is due to migrants having become far more welcome, thereby alleviating their need to seek and receive support at Strasbourg. Unfortunately, a more convincing explanation is that the Court has purposively discouraged migrants from resorting to Rule 39 by instigating internal policy changes that lead it to refuse requests more systematically.

As migrants encountered more and more difficulties in Europe, they increasingly turned to Strasbourg. And as Rule 39 increasingly came to act as a life line for migrants, it also became the bane of the Court. Things came to a head in January 2011. The Court had received 2,500 requests in the previous four months, and it looked like numbers would keep mounting if nothing was done. The Court described the situation as ‘alarming’. This was not in order to denounce the difficulties experienced by migrants but in order to highlight its own case processing difficulties. In response, the Court said it was not an immigration tribunal and therefore could not be expected to intervene, bar in truly exceptional cases. The great majority of the thousands of requests it had recently received were obviously considered run-of-the-mill rather than exceptional.

Judge Costa, the then President of the Court, issued a statement which urged governments to provide effective and fair national remedies that were suspensive. This had no discernible effect on the situation on the ground. For example, to this day, few expellees are informed well in advance of the details of the flight on which the authorities plan to remove them. The President’s statement also addressed applicants and their representatives. They were told they must provide the Court with all the necessary documentation and in good time if a Rule 39 request was to have any chance of success (as if it was their slack work that was generally responsible for last minute and incomplete applications). Coupled with a transformation in the procedure followed to deal with these requests (on which, see my book, p. 435), this changed everything. Suddenly request after request was refused. Learning their lesson, migrants’ legal representatives have virtually stopped lodging Rule 39 requests, triggering the number of Rule 39 requests to drop. The result is the 2015 statistics.

The Court is happy: it can function properly. But is it really functioning as it should? The policies put in place by the Court may be an unmitigated success from a case management perspective. But from a human rights perspective?

The unprecedented number of refugees currently in Europe raises serious challenges for European states and populations. One would wish that the European Court of Human Rights was joining the chorus of voices who affirm that we must remain driven by a sense of common humanity. For a variety of reasons explored in my book, since its inception the Court has tended to side with the state rather than with migrants. Who would say this is not a regrettable and dangerous orientation?