Member states should respect ECHR decision on forced expulsions of Iraqis

The European Court of Human Rights has recently confirmed its decision to suspend forced returns to Iraq in a number of individual cases against the Netherlands, the UK and Sweden, until further notice. In many cases an application for an interim measure (Rule 39) before the European Court of Human Rights is the only effective remedy to prevent removal.

ECRE has spoken to Thorbjørn Jagland, Secretary General of the Council of Europe, about returns to Iraq and compliance of Member States with the Court’s decisions, and also about Europe’s responsibility towards refugees and the role of the Council of Europe.

The question of returns to Iraq is high on the agenda with Sweden cancelling a flight a couple of weeks ago and the UK stating recently that they consider Iraq safe enough to return people to. What is your position on forced returns there?

Member States have the right to control the entry, residence and expulsion of foreigners. And I fully understand their difficulties in this area. In doing so, however, they should not undermine the rights guaranteed by the European Convention on Human Rights. The decision to return a person to a country where he/she faces a real risk of being subjected to torture or to inhuman or degrading treatment or punishment may give rise to an issue under Article 3 of the Convention. My position on this is that Member States should take their obligations under the European Convention on Human Rights into consideration when returning foreigners to their countries.

What do you think about the trend from some countries not to comply with the decisions of the European Court of Human Rights?

Requests made by the Court not to return applicants to their countries until the Court has the time to examine the merits of the case should be respected by Member States. The respect of such an interim measure, taken on the basis of Rule 39 of the Rules of the Court, is necessary to ensure the effectiveness of proceedings before the Court. It does not mean that the Court will find a violation of the Convention by the country concerned. Failure to comply with Rule 39 will however in all probability lead to a finding of a violation of the right to bring an application.

Generally these requests made by the Court are respected by Member States.

“The respect of interim measures is necessary to ensure the effectiveness of proceedings before the Court”

Is Europe taking its fair share of the global responsibility towards refugees?

Europe should work hand in hand with UNHCR which is trying to resettle refugees who, often, have survived violence and torture. It appears that annual quotas of European countries should be increased. I know that the capacity to receive refugees for resettlement depends on a number of factors but I also believe that Europe has a duty to give support to refugees.

What are the main challenges for people in need of international protection who manage to reach Europe? Today, as a general rule, asylum seekers have to get their claims for international protection examined in the first country they entered in Europe. Is this working?

The “Dublin” system in the EU is designed to prevent “asylum shopping” and, at the same time, to ensure that each asylum applicant’s case is processed by only one Member State. I am not in a position to judge whether this system is working or not. I can however inform you that there are currently 1000 cases pending before the European Court of Human Rights concerning the application of the “Dublin” system to asylum seekers. They are mostly applications lodged against Belgium, the Netherlands, Finland and France. The EU countries of destination concerned are mainly Greece and Italy. The Court's Grand Chamber is currently examining the issues raised by the Dublin system in a case against Belgium and Greece.

“There are 1000 cases pending before the European Court of Human Rights concerning the application of the “Dublin” system, mostly lodged against Belgium, the Netherlands, Finland and France, and concerning transfers of asylum seekers to Greece and Italy.”

How do you see the role of the Council of Europe in ensuring protection for people in need of international protection in Europe?

All Council of Europe Member States are committed under the European Convention on Human Rights to protect those within their jurisdiction in need of international protection because they are in real danger of persecution, torture, inhuman or degrading treatment or punishment if returned to their home country. The role of the Council of Europe is to assist Member States to give full effect to this commitment.

“The role of the Council of Europe is to assist Member States to give
full effect to their commitment under the European Convention on Human Rights to protect those in need of international protection”