To learn from the atrocities committed during the Second World War and to avoid their reoccurrence was the declared aim of all nations after the WW II was over and the Axis powers had been defeated. Once and for all it had become clear that the protection of human rights could not be regarded as any nation’s internal affairs. In Europe, Nazi-Germany served as a deterring case how a national regime could impose progressively worse treatments (from discriminations to genocide) on certain minorities, if no outside control provided an ultimate safeguard.
The aim of the international law treaties signed inside Europe after WWII was to provide exactly such a safeguard and to integrate defeating and defeated countries into binding cooperation. One such cooperation took the form of the European Communities (most prominently the EC), another one the form of the Council of Europe (the organization drafting and controlling the European Convention on Human Rights (henceforth: convention)). In this paper using the issue of deportation of aliens I want to provide an overview on the position of a typical European country like Austria in regard to the obligation derived from the convention institution’s case law. ⇒ What is “deportation”? (Merriam-Webster’s Dictionary of Law). The removal from a country of an alien whose presence is illegal or detrimental to the public welfare. NOT: Exclusion: refusal of entry into a country by the immigration officials. NOT: Extradition: the surrender of an accused usually under the provisions of a treaty or statute by one sovereign (state or nation) to another that has jurisdiction to try the accused and that has demanded his or her return.
Which aliens enjoy welcome varies with different nations, the four problem categories below, however, serve as a general outline for understanding “unwanted immigration”.
i.) illegal aliens discovered on a nation’s territory
ii.) legal long-term aliens becoming illegal
iii.) legal aliens committing misdemeanors
iv.) 2nd generation immigrants (or later) committing misdemeanors
Table of Contents
I. Introduction
II. The Convention for the Protection of Human Rights and Fundamental Freedoms and the Court of Human Rights
1. Background
2. Compliance Mechanism
3. The Rights Enshrined in the Convention
III. The Relevant Case Law
1. The Prohibition of Torture
1.1. Character of Article 3
1.2. The threshold of severity test
1.3. Sorabjee v. UK and D. v. UK
2. The Prohibition of Collective Expulsion
2.1 Character of Art. 4 of the 4th additional protocol
2.2. Case law
3. The Right to Respect for Family and Private Life
3.1. Character of article 8
3.2. The article 8 test
3.3. Case law
IV. Influences on the Austrian Deportation System – Reflections
1. General Remarks
2. Specific Influences
Objectives and Core Themes
This paper examines the legal obligations imposed on European states, specifically Austria, regarding the deportation of aliens under the European Convention on Human Rights. The central research question explores how the jurisprudence of the European Court of Human Rights balances national sovereignty and security interests against the fundamental human rights of individuals facing deportation.
- The absolute nature of protection against torture under Article 3.
- The prohibition of collective expulsion and the requirement for individual case assessments.
- Balancing the right to respect for family and private life (Article 8) against public interest.
- The proportionality test applied to first and second-generation immigrants.
- The influence of international case law on domestic legislative reforms in Austria.
Excerpt from the Book
1.2. The threshold of severity test
Article 3 provides an extraordinary amount of protection, a kind of protection irrespective of the individual’s wrongdoings and irrespective of the state’s public needs. This extraordinary protection comes with a minimum level of severity test – the threshold of severity test – which was developed by the court in its case law.
The origins of the case law on article 3 in regard to the obligation of convention states not to impose indirect violations on aliens can be found in the Soering v. UK case. This extradition case concerned a German national detained in Britain and being extradited to the US for homicide charges. The applicant, then, appealed to the court and alleged that the “death row phenomenon”, the prolonged period of waiting for the execution of capital punishment that could take years of constant uncertainty, constitutes “inhuman or degrading treatment or punishment” in breach of article 3.
The court decided unanimously that the death row phenomenon constitutes an inhuman or degrading treatment and therefore barred the UK to extradite the applicant. Besides the considerations concerning the death row phenomenon itself, however, the court’s considerations about the UK’s responsibility coined the obligation under the convention to not even indirectly expose any person under their jurisdiction to violations of article 3.
Summary of Chapters
I. Introduction: This chapter introduces the historical context of the European Convention on Human Rights following WWII and outlines the scope of the paper regarding the deportation of aliens.
II. The Convention for the Protection of Human Rights and Fundamental Freedoms and the Court of Human Rights: It details the background of the Convention, its compliance mechanisms, and provides an overview of the specific rights protected.
III. The Relevant Case Law: This central chapter analyzes the judicial interpretation of Articles 3, 4 of the 4th protocol, and Article 8, focusing on how these articles limit state power in deportation scenarios.
IV. Influences on the Austrian Deportation System – Reflections: The final chapter evaluates the practical impact of the Convention's case law on Austrian legislative changes and the ongoing tension between national sovereignty and international human rights standards.
Keywords
European Convention on Human Rights, Deportation, Human Rights, Article 3, Article 8, Collective Expulsion, Alien Law, Austria, Case Law, Proportionality Test, Sovereignty, Immigration, Inhuman Treatment, Family Life, Strasbourg Court.
Frequently Asked Questions
What is the primary focus of this research?
This paper focuses on the legal relationship between European state deportation policies and the protections guaranteed by the European Convention on Human Rights.
Which human rights articles are central to this study?
The study primarily analyzes Article 3 (prohibition of torture), Article 4 of the 4th protocol (prohibition of collective expulsion), and Article 8 (right to respect for family and private life).
What is the main objective of the paper?
The goal is to provide an overview of how the European Court of Human Rights' case law restricts states in their deportation practices and influences national legislation, using Austria as a case study.
What methodology is employed in this research?
The author uses a legal analysis of landmark European Court of Human Rights judgments and compares these findings with the evolution of the Austrian Alien Act.
What does the main body cover?
It covers the historical background of the Convention, the interpretation of specific rights, the evolution of the proportionality test for different classes of immigrants, and the resulting pressures on national policy.
Which keywords best describe this work?
Core keywords include European Convention on Human Rights, Deportation, Sovereignty, Proportionality, and Alien Law.
How does the "threshold of severity test" apply to deportation?
It establishes that for Article 3 to be invoked in deportation cases, the individual must face a "real risk" of "sufficiently severe" ill-treatment in the receiving country.
Why is the Conka v. Belgium case significant for collective expulsion?
It is significant because it demonstrated that even if a government claims to treat cases individually, the surrounding procedural actions (such as mass notices and group transport) can still constitute a prohibited collective expulsion.
- Quote paper
- Arnold Ackerer (Author), 2004, The European Convention on Human Rights and its Case Law in Relation to the Deportation of Aliens, Munich, GRIN Verlag, https://www.grin.com/document/34493
