The European Convention on Human Rights and its Case Law in Relation to the Deportation of Aliens

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

References

The European Convention on Human Rights and its Case Law in Relation to the Deportation of Aliens

Arnold Ackerer

Citation:

Ackerer, A. (2004). The European Convention on Human Rights and its Case Law in Relation to the Deportation of Aliens, Unpublished Paper, Hiroshima: Hiroshima Univ.

I. Introduction

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.

- Area of conflict:

A nation’s sovereignty defined as freedom from external influence (the possibility to decide who may enter and reside inside the nation is a core issue of sovereignty) v. the supremacy of human rights.

= refusal of unwanted immigration vs. the human rights of aliens

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Figure 1: Net total number of immigrants for selected European countries between

1985 and 2000 (Source: http://www.migrationinformation.org/).

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Figure 2: Alien population in percentage of total population for selected European

countries in 1991 and 2001 (Source: http://www.migrationinformation.org/).

- Identifying “unwanted immigration”:

Clearly it is no state’s intention to deport her alien population just for the sake of reducing the number of aliens inside the country. As the definition of the term deportation above already suggests, however, certain groups of aliens are not welcome in the host state. 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

In each of these four cases there are warranted public interests in the deportation of the respective aliens such as the interest in a working border control, the upholding of the alien law itself, economical reasons, reasons of public security … etc. Additionally the deterrence of future unwanted immigrants became a major motive for stricter border controls and more efficient deportation procedures in Europe during the 90s. All these public interests, however, stand in opposition to the human rights of the individual aliens which, ultimately, are protected by the European Court of Human Rights.

II. The Convention for the Protection of Human Rights and Fundamental Freedoms and the Court of Human Rights

1. Background

Drafting the convention to foster the understanding for human rights and the firm establishment of the rule of law in the nations representing the contracting parties (henceforth: convention states), the convention is also understood as a direct consequence of reflections on the atrocities committed during WWII and a rather disappointing Declaration of Human Rights by the U.N. (disappointing in regard to its protective mechanisms). Not only the lack of respect for human rights in general but the lack of competent institutions for individual complaints after national institutions had proven meaningless (due to taking a positivistic approach to laws) in particular left individuals helplessly. Two apparent and interrelated differences to the UN Declaration of Human Rights are the smaller number of rights guaranteed in the convention and the enforcement mechanism that also allows for the complaint of individuals.^[1]

As a first step after WWII, the Council of Europe was created in 1949 and soon afterwards (November, 5th 1950) the convention was opened for signature and entered into force in September 1953.^[2] As of October, 2004, forty-six states have ratified the convention making it applicable in such diverse countries as Georgia in the East, Iceland in the North, Greece and Turkey in the South and Ireland and Portugal in the West.

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Figure 3: The member states to the Council of Europe ≈ the area of jurisdiction for the

Court of Human Rights.

An additional characteristic that greatly influences the convention’s efficiency concerns the incorporation of the convention into the single national legal systems of its member states. The convention states not only differ in their way to incorporate international treaties in national legal systems (namely according to the monistic v. the dualistic theory), but also in the rank they assign to the convention in their respective legal systems.^[3] Figure 4 shows some of the possibilities used by the different member states. For a more detailed description see Chryssogonos (2001).

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Figure 4. The convention’s rank and some country examples.

2. Compliance Mechanism

Like the material provisions (rights and freedoms), also the compliance mechanism and the proceedings of the conventions changed over the course of time. Originally three institutions, the (1) Commission of Human Rights (established 1954), (2) the European Court of Human Rights (established 1959) and (3) the Committee of Ministers of the Council of Europe, reviewed complaints against states invoked by other parties to the convention or invoked by individuals, if the blamed state had accepted the individual complaint procedures.^[4] This original procedure emphasized the search for friendly settlements with the commission trying to negotiate such a settlement before a case was further pursued in the committee and eventually might have been decided in the court.

A dramatic change resulted from the implementation of protocol no. 11 and placed the court in the center of all human rights complaint. The protocol entered into force on Nov. 1st, 1998, with a transitional period of one year.

The most significant changes were:

(a.) the now mandatory character of the individual complaint mechanism
(b.) the part-time court was replaced by a full-time court
(c.) the commission was abolished
(d.) the role of the Committee of Ministers was restricted

Through these changes political influence was marginalized and judicial procedures – the rule of law as it was the convention’s aim back in 1950 – now dominate the complaint mechanism. While the commission was completely abolished, the role of the Committee of Ministers was reduced to a supervisory body for the implementation of the ECHR’s decisions.^[5] The ever more important role of the court is maybe best recognizable from the number of cases heard and decided by the court:

60s – 10 decisions

70s – 26 decisions

80s – 169 decisions

90s – 746 decisions^[6]

2001 – ca. 14,000 new applications registered (!)

– ca. 900 judgments, 9,000 rejections

3. The Rights Enshrined in the Convention

As mentioned before, the mere number of rights is rather small compared to more comprehensive works such as the International Covenants for Human Rights or modern constitutions which contain social rights as well. The following table provides a short overview of the rights enshrined in the convention.

[...]

^[1] Social rights were not seen as liable for trial in a court and therefore mostly excluded from the original convention. Thus, the compliance mechanism was strengthened because it only had to deal with the hard core of human rights.

^[2] The convention was ratified by 22 members of the Counsel of Europe in this first stage.

^[3] Art. 13 of the convention guarantees the right to an effective remedy before a national authority concerning the rights and freedoms of the convention. This was interpreted as a duty to incorporate the convention into the national legal systems because only after such an incorporation the national authority could use the (incorporated) convention as a basis for its decisions.

^[4] By 1987 all parties to the convention had acknowledged this mechanism.

^[5] In more detail, the complaint by an individual is first reviewed by a rapporteur, who either transfers the complaint to the competent chamber (thus, admitting the case) or to a committee of three judges that can reject a case. In cases that call for interpretations of the convention or a change from the existing case-law, the chamber relinquishes the jurisdiction in favor of the Grand Chamber. Decisions in the Grand Chamber are always final, decisions in the chambers can be reviewed by the Grand Chamber under certain circumstances. All ECHR’s decisions are binding.

^[6] For the time from 1.1.1990 until 31.7. 1998.