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Speech at the Prague Charles University Commemorating 70 years of the European Convention on Human Rights

Prague 27 November 2020
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Dear colleagues and friends,

I would like to congratulate and thank the Faculty of Law of Univerzita Karlova for organizing this event to commemorate the 70th anniversary of the adoption of the European Convention on Human Rights. It is a pleasure and honour for me to join so many distinguished speakers in addressing the conference.

I took over my current position of Special Representative of the Secretary-General of the Council of Europe on Migration and Refugees on 15 January this year. This position was established in 2016 in the wake of the migration crisis 2015-2016, and I am happy to state that the first Special Representative was a representative of the Czech Republic, my colleague and a good friend Ambassador Tomas Bocek.

I would like to start with short historical excursion into the refugees and migration agenda within the Council of Europe. It was not only because of the 2015-2016 crisis that the Council of Europe got involved more closely.

First resolution of the Committee of Ministers of the CoE concerning the refugees was adopted as early as of 4 November 1950.

On 12 December 1953, a position of the first Special Representative of the Committee of Ministers was established, and it may also surprise many that it was the Special Representative of the CoE for national refugees and over-population in Europe. French Politician Mr. Pierre Schneiter was the one who took over this position as of 1 February 1954 and held it for incredible 26 years.

In 1956, the Council of Europe Resettlement Fund for National Refugees and Over-Population in Europe, the first of the Council of Europe's Partial Agreements, was established, which is now known as the Council of Europe Development Bank, or CEB.

As you could see, there has been a between the Council of Europe and the refugees or migration agenda since the establishment of the CoE in 1949 and the subsequent adoption of the European Convention on Human Rights in 1950.

The European Convention on Human Rights (ECHR) and the 1951 Geneva Refugee Convention were drafted and adopted about the same period. Still then, the international legal community saw a distinction between human rights as a separate branch of international law from the from international refugee law. Also, the political landscape was quite different. In 50ties, the most of the refugees were Europeans, while majority of today’s refugees are from Asia or Africa.

The European Convention on Human Rights provides recognizes most of the rights set out in the Universal Declaration of Human Rights (UDHR) of 1948. It did not however contain any provision to reflect Article 14 of the UDHR, which guaranteed the right to seek and enjoy asylum from persecution.

However, International instruments are living documents, especially in the case where their guardians, judicial bodies (courts) or monitoring, often called also as quasi-judicial bodies, exist.

In the case of the European Convention on Human Rights (ECHR), the guardian organ par excellence is the European Court of Human Rights (ECtHR), in accordance with Article 19 of the Convention.

On the other hand, the Geneva Convention has no international supervision procedure. There is no right of individual petition to a judicial body comparable to that which exists under Articles 34 and 35 of the European Convention on Human Rights.

I should also add, although it seems to be obvious, that ECtHR has no jurisdiction over the 1951 Geneva Convention.

The right to political asylum is not contained in either the Convention or its Protocols.

  1. is not easy to find a correct answer why the right to asylum is not included in ECHR, and even travaux preparatoires give no clear answer. I assume that there was no appetite that time to interfere with the sovereignty of states, which comprises also the right to control the entry, residence and expulsion of aliens.

Authors of the of the 2010 publication Asylum and the European Convention on Human Rights, Nuala Mole and Catherine Meredith, 2010 Council of Europe Publishing are stating this on the subject:

"Although Article 14 of the UDHR expressly protects the right to “seek and enjoy asylum from persecution”, this right is not found in the texts of other general instruments of international human rights law such as the ICCPR or the ECHR. When those human rights instruments were drafted, it was thought that the Geneva Convention relating to the status of refugees would constitute a lex specialis which fully covered the need, and no express provision on aslyum was thus included"

The lex specialis relation between the ECHR and the 1951 the Geneva Refugee Convention was confirmed by the Court in Soering v. the UK case of 1989. The Court found that the application of the European Convention on Human Rights was not excluded by the existence of the other instruments, which expressly and specifically address the question of sending individuals to a country where they will be exposed to the risk of prohibited treatment (Including the UN Convention against the Torture) The existence of these specific treaties could not “absolve the Contracting Parties (of ECHR) from responsibility under Article 3. (Soering v. the UK 7 July 1989).

We may be say that this case set up a scene for the application of ECHR in the cases relating to the right to asylum.

The Court does not itself examine the actual asylum application, nor it verifies how the States honour their obligations under the 1951 Geneva Convention or European Union law (F.G. v. Sweden [GC], § 117; Sufi and Elmi v. the United Kingdom, §§ 212 and 226). However, the expulsion of an alien by a Contracting State may give rise to an issue under Articles 2 and 3, and hence engage the responsibility of that State under the Convention, where substantial grounds have been shown for believing that the person in question, if deported, would face a real risk of being subjected to treatment contrary to Articles 2 or 3 in the destination country.

An asylum seeker is an individual who has sought international protection and whose claim for refugee status has not yet been determined.

A refugee is a person who fulfils the criteria of the 1951 Convention.

Article 1A, §2 of the 1951 Convention, defines a refugee as someone who “owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such a fear, unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it…”.

Article 33, §1, of the 1951 Geneva Convention states: “No Contracting State shall expel or return (‘refouler’) a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion.”

Those are the definitions coming from the 1951 Geneva Convention.

However, with the time, a number of articles in the ECHR proved to be pertinent to asylum and refugee law:

    • Article 2 and 3 (and nw even 4) and the principle of non refoulement,
    • Article 3 cncerning reception/detention conditions
    • Article 5 cncerning immigration detention
    • Article 8 cncerning family reunification and respect for family life
    • Article 13 n effective remedies
    • Article 4 f Protocol 4 prohibiting collective expulsion

This list is quite impressive, if you bear in mind that substantive human rights are stipulated in the first 14 articles of ECHR.

We should not discount interim measures under Rule 39 of the rule of the Court. Interim measures have been requested mainly in immigration cases.

As I have already indicated, those articles were interpreted through the judicature of the Court. I will mention only few from the most relevant cases in this regard.

In one of the most often quoted cases is Hirsi Jamaa and Others v. Italy [GC], 2012, whereby articles 3, 13 of ECHR and article 4 of Protocol 4 were invoked. The Court dealt with so called pushbacks at sea. The applicants were part of a group of about 200 migrants, of Somali and Eritrea origin, departing from Libya, who had been intercepted by the coastguard of the respondent State on the high seas within the search and rescue area of another Contracting Party. The applicants were summarily returned to Libya under an agreement concluded between Italy and Libya, and were given no opportunity to apply for asylum.

The Court considered that the Italian authorities knew, or should have known, that the applicants, when returned to Libya as irregular migrants, would be exposed to treatment in breach of the Convention, that they would not be given any kind of protection and that there were insufficient guarantees protecting them from the risk of being arbitrarily returned to their countries of origin, Somalia and Eritrea. It reaffirmed that the fact that the applicants had not asked for asylum or described the risks they faced as a result of the lack of asylum system in Libya did not exempt the respondent State from complying with its obligations under Article 3 of the Convention. It also found violations of Article 4 of Protocol No. 4 of the Convention and of Article 13 of the Convention taken in conjunction with Article 3 of ECHR and Article 4 of Protocol No. 4 to the Convention.

The transfer of the applicants to Libya had been carried out without any examination of each applicant’s individual situation. The applicants had not been subjected to any identification procedure by the Italian authorities, which had restricted themselves to embarking and disembarking them in Libya.

There was also an interesting observation on the application of Article 4 of Protocol 4. The Court observed that neither Article 4 of Protocol No. 4 nor the travaux préparatoires of the Convention precluded extra-territorial application of that Article. Furthermore, limiting its application to collective expulsions from the national territory of Member States would mean that a significant component of contemporary migratory patterns would not fall within the ambit of that provision and would deprive migrants having taken to the sea, often risking their lives, and not having managed to reach the borders of a State, of an examination of their personal circumstances before being expelled, unlike those travelling by land.

I would like also to refer to the case M.S.S. v. Belgium and Greece, addressing access to asylum procedures and reception conditions. Here, the Court not only found a violation of Article 3 because of poor conditions of detentions, but also because of poor living conditions, when the applicant was living in the streets. Even the transfer of the applicant from Belgium to Greece, so within the EU and the Dublin system, was considered as a violation of Article 3, because of bad conditions that the applicant encountered in Greece.

 

In N.D. and N.T. v. Spain (Grand Chamber) the Court found that Article 4 of Protocol No. 4 was applicable to situations in which the conduct of persons - who cross a land border in an unauthorised manner, deliberately taking advantage of their large numbers and using force - is such as to create a clearly disruptive situation which is difficult to control and endangers public safety. It set out a two-tier test for compliance with Article 4 of Protocol No. 4 in such circumstances: whether the State provided genuine and effective access to means of legal entry, in particular border procedures, to allow all persons who face persecution to submit an application for protection, based in particular on Article 3, under conditions which ensure that the application is processed in a manner consistent with international norms including the Convention. Where the State provided such access, but an applicant did not make use of it, it must be considered whether there were cogent reasons for not doing so which were based on objective facts for which the State was responsible. The absence of such cogent reasons could lead to this being regarded as the consequence of the applicants’ own conduct, justifying the lack of individual identification. On the facts of the case, the Court found that there had been no breach of Article 4 of Protocol No. 4, but underlined that this finding did not call into question the obligation and necessity for Contracting States to protect their borders in a manner which complies with Convention guarantees and, in particular, with the prohibition of refoulement.

Where applicants can arguably claim that there is no guarantee that their asylum applications would be seriously examined by the authorities in the neighbouring third country and that their return to their country of origin could violate Article 3 of the Convention, the respondent State is obliged to allow the applicants to remain with its jurisdiction until such time that their claims had been properly reviewed by a competent domestic authority and cannot deny access to its territory to persons presenting themselves at a border checkpoint who allege that they may be subjected to ill-treatment if they remain on the territory of the neighbouring state, unless adequate measures are taken to eliminate such a risk (M.K. and Others v. Poland*, §§ 178-179).

In Sharifi and Others v. Italy and Greece, the applicants had entered Greece from Afghanistan and subsequently illegally boarded vessels for Italy. Upon arrival in the port of Ancona, the Italian Guide border police intercepted them and immediately took them back to the ships from which they had just disembarked and deported them back to Greece, without being given the possibility to apply for asylum, to contact lawyers or interpreters or providing them with any information about their rights. The Court found a violation by Italy of Article 3 with a view to their subsequent removal to Afghanistan and the risk of ill-treatment there, of Article 13 taken together with Article 3 of the Convention and of Article 4 of Protocol No. 4.

The Court has often dealt with cases concerning the removal of individuals deemed to be a threat to national security (see, for example, A.M. v. France). It has repeatedly held that Article 3 is absolute and that it is not possible to weigh the risk of ill-treatment against the reasons put forward for the expulsion (Saadi v. Italy [GC], §§ 125 and 138; Othman (Abu Qatada) v. the United Kingdom, §§ 183-185). The Court cannot rely on the findings of the domestic authorities if they did not have all essential information before them – for example for reasons of national security – when rendering the expulsion decisions (see X v. Sweden).

In conclusion, I would like to say that not only the Court was bringing refugee and asylum laws closer to the Council of Europe system. On 18 November 1977, Committee of Ministers of the Council of Europe adopted a Declaration on Territorial Asylum. It followed the UN Declaration on Territorial Asylum of 1967. The CoE 1977 Declaration is referring to the objectives contained in the Statute of the Council of Europe, while bearing in mind the ECHR. In the Declaration the member states of the Council of Europe reaffirm their intention to maintain their liberal attitude regarding persons seeking asylum on their territory. The member states of the Council of Europe, parties to the 1951 Convention relating to the Status of Refugees, reaffirm their right to grant asylum to any person who, having a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, also fulfils the other conditions of eligibility for the benefits of that convention, as well as to any other person they consider worthy of receiving asylum for humanitarian reasons. The member states of the Council of Europe reaffirm in the Declaration that the grant of territorial asylum is a peaceful and humanitarian act and shall not be regarded as an act unfriendly to any other state and shall be respected by all states. The latter part was of course the reflection of the Cold War era on Europe in 70ties.

I wanted to show in my contribution that ECHR, which just celebrated 70 years, is a living document, which can be adapted to the context and present circumstances. I also wanted to prove the CoE is not shy of the refugee and migration agenda and it has the role to play in it.


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