The European convention on human rights and the protection of refugees: Limits and opportunities

Refugee Survey Quarterly

Volumn 24, Issue 2, 2005, Pages 39-55

  Lambert, Hélène ^a  

^a UNIVERSITY OF EXETER   (United Kingdom)

Author keywords

[No Author keywords available]

Indexed keywords

REFUGEE;

AFRICA; EASTERN HEMISPHERE; WORLD;

EID: 21344436587     PISSN: 10204067     EISSN: None     Source Type: Journal    
DOI: 10.1093/rsq/hdi025     Document Type: Review

References (148)

1. Extract of Article 1A(2) of the UN Convention Relating to the Status of Refugees (1951) and Protocol (1967).
2. Article 1F, Refugee Convention.
3. Article 33(2), Refugee Convention.
4. Note that in the context of this article, expulsion is used as a generic term to mean also deportation, refoulement and extradition.
5. (1996). The most comprehensive source of ECHR jurisprudence may be accessed through the HUDOC portal .
6. (1997).
7. (1995).
8. To read more on this issue, see H. Lambert, "Protection Against Refoulement from Europe: Human Rights Law Comes to the Rescue", 48 ICLQ (1999), 515-544.
9. Other provisions may also be relevant, e.g., Articles 2, 5, 9, but will not be dealt with here because of lack of space. See N. Mole, Asylum and the European Convention on Human Rights, Human Rights File No.9, Council of Europe (2000).
10. Article 2 of the ECHR and Article 1 of Protocol 6 have had little use in comparison.
11. Soering v. UK (1989), paras.86.
12. Ibid, para.91.
13. A v. UK (1998),
14. Osman v. UK (1998). This obligation also involves an implicit duty to provide an effective investigation (under Article 3 and/or Article 13) and more generally to provide a right to an effective remedy.
15. N. Blake QC, Keynote presentation, Proceedings of the 2nd colloquy on the European Convention on Human Rights and the protection of refugees, asylum-seekers and displaced persons, Council of Europe (2000), p.83.
16. Ireland v. UK (1978), para.162.
17. Separate Opinion by judge Zekia in Ireland v. UK (1978).
18. (2002).
19. Ibid, para.52.
20. (2001), para-74.
21. (2003), para.220.
22. Chahal v. UK (1996).
23. Tanko v. Finland (1994).
24. Fadele v UK (1990).
25. (1997), paras.53-54.
26. (2001), paras.38-40.
27. See also Arcila Henao v. Netherlands (2003), similar in facts to D. but declared inadmissible by the Court because the situation of the applicant although serious was not of an exceptional nature.
28. Jabari v. Turkey (2001).
29. D. v. UK (1997) in its narrowest interpretation (para.53).
30. Nsona v. Netherlands (1996).
31. 13th General Report (CPT/Inf (2003) 35). E.g., Ribitsch v. Austria (1995).
32. T.I. v. UK (2000).
33. East Africans Asians Cases (1981),
34. Abdulaziz, Cabales and Balkandali v. UK (1985),
35. Cyprus v. Turkey (2001).
36. HLR v. France (1998), para.40,
37. and Ahmed v. Austria (1996), paras.42-47.
38. A v. UK (1998), para.24.
39. Pretty v. UK (2002), paras.50-51. See below on the duty of States to protect the health of persons deprived of liberty and on the duty of States to provide an effective investigation into an alleged violation of a right protected under the ECHR.
40. D. v. UK (1997), para.53-54
41. and Bensaid v. UK (2001), para.34.
42. Vilvarajah and Others v. UK (1991), para.111
43. and HLR v. France (1997), para.42.
44. Kalashnikov v. Russia (2002).
45. Chahal v. UK (1996).
46. H. Lambert, "The European Court of Human Rights and the Right of Refugees and Other Persons in Need of Protection to Family Reunion", 11 IJRL (1999), 427-450;
47. N. Rodgers, "Immigration and the Right to Family Life: Has the European Court's Jurisprudence finally turned the corner?", AIRE Centre.
48. (2001).
49. Ibid, para.46.
50. Ibid, para.47.
51. D. v. UK (1997).
52. Such right was recently recognised by the House of Lords in R (on the application of Razgar) v SSHD, 17 June 2004.
53. Soering v. UK (1989), para.113.
54. (1992), para.110.
55. (2000).
56. Voulfovitch and Oulianova and Voulfovitch v. Sweden (1993),
57. S. T. v. France (1993),
58. Sulejmanovic and Sultanovic v. Italy (2002),
59. and Sejdovic et Sulejmanovic v. Italy (2002).
60. Article 1(2). Davies et al. v. la Roumanie (2003).
61. Explanatory Memorandum to Protocol 7.
62. A similar duty has been recognised by the Court under Article 2, Article 5 and Article 8: Assenov and Others v. Bulgaria (1998), para.102;
63. M. C. v. Bulgaria (2003), paras.152-153;
64. and Ipek v. Turkey (2004), paras. 169 and 187.
65. See also A. Mowbray, "Duties of investigation under the European Convention on Human Rights", 51 ICLQ (2002), 437-448.
66. Assenov v. Bulgaria (1998), para.102.
67. (1998), para.92, referring to Ribitsch v. Austria (1995).
68. This implied duty of investigation was confirmed in Sevtap Veznedaroglu v. Turkey (2000), a case of torture and ill-treatment of a female student by the police whilst in custody.
69. Assenov v. Bulgaria (1998). The same conclusion was reached in Sevtap. Note that in Assenov, the Court further concluded that Article 13 also had been violated for the same reasons.
70. See also Ipek v. Turkey (2004), in which the Court also found a violation of both Article 3 and Article 13 for the same reason: lack of an effective investigation.
71. This was a case of severe head injury at the hands of the police whilst in custody followed by a lack of proper medical care, (2000) para.92.
72. See also, Aksoy v. Turkey (1996),
73. Aydin v. Turkey (1997),
74. Bilgin v. Turkey (2000),
75. Gennadyi Naumenko v. Ukraine (2004).
76. E.g., Kmetty v. Hungary (2003),
77. Poltoratskiy v. Ukraine (2003),
78. Kuznetsov v. Ukraine (2003),
79. Sadik Onder v. Turkey (2004),
80. Iorgov v. Bulgaria (2004),
81. G.B. v. Bulgaria (2004),
82. Toteva v. Bulgaria (2004).
83. (2003).
84. It also recognises that rape "infringes not only the right to personal integrity (both physical and psychological) as guaranteed by Article 3 but also the right to autonomy as a component of the right to respect for private life as guaranteed by Article 8". Ibid, para.166.
85. Ibid, para.177.
86. See also Separate Opinion of Judge Sir Nicolas Bratza in Poltoratskiy v. Ukraine (2003)
87. and his Partly Dissenting Opinion in Kuznetsov v. Ukraine (2003).
88. Osman v. UK (1998),
89. Pretty v. UK (2002).
90. See also R (on the applications of Adam, Tesema and Limbuela) v SSHD Court of Appeal, 21 May 2004, para.77, [2002] EWCA CIV 540, [2004] All ER (D) 323 (May).
91. Silver v. UK (1983), para.109.
92. Note that Article 5 has its own procedural guarantee proviso. However, Article 13 remains relevant because the content of Article 13 is wider than the requirement for an investigation under Article 5. Kurt v. Turkey (1998), para.140.
93. Silver v. UK (1983), para.113. Recommendation No. R (98) 13 of the Committee of Ministers of the Council of Europe.
94. Aydin v. Turkey (1997), para.104.
95. Silver v. UK (1983), para.113.
96. Aydin v. Turkey (1997), para.103.
97. Chahal v. UK (1996), para.151.
98. (2000), para.40.
99. Ibid, para.49.
100. Commission's report on Plattform "Artze fur das Leben" v. Austria (1988).
101. See also Recommendation No. R 98 (13) of the Committee of Ministers of the Council of Europe, Explanatory Memorandum, para.16. In this regard, the denial to asylum-seekers of the right to legal assistance or the right to basic subsistence could be in violation of Article 13 in conjunction with Article 3, by preventing an asylum-seeker from appealing. See, R. v. Secretary of State for Social Security, ex parte Re B and Joint Council for the Welfare of Immigrants (JCWI), [1997] 1 WLR 275.
102. Soering v. UK (1989), para.123.
103. (2002), paras.81-83.
104. Aksoy v. Turkey (1996), para.98
105. and Aydin v. Turkey (1997), para.103.
106. Aydin v. Turkey (1997), para.103.
107. And not under Article 3 nor Article 6 as contended by the applicant. (1997), para.102.
108. Ibid, para.108.
109. But see Partly Concurring, Partly Dissenting Opinion of Judge Pettiti who considers that "the responsibility for this lack of effectiveness is to some extent a shared one, so that it would appear that the requirements for the application of art 13 have not been satisfied". See also, the Court's findings in Gennadiy Naumenko v. Ukraine (2003) that «en l'absence de coopération de la part du requérant, on ne peut pas reprocher au procureur de ne pas avoir mené une enquète efficace» (para.138).
110. Aydin v. Turkey (1997), para.109, and Joint Dissenting Opinion of Judges Golcuklu, Pettiti, De Meyer, Lopes Rocha and Gotchev.
111. Peers v. Greece (2001), paras.74-75.
112. Note that Article 5 of the Convention is not concerned with the legality of the "conditions" of detention but with the legality of the "deprivation" of liberty, see H. Lambert, The Position of Aliens in Relation to the European Convention on Human Rights, Human Rights File No.8, Council of Europe (2001), 18-21.
113. Since Chahal v. UK (1996), international terrorists may not be deported, however, in certain countries such as the United Kingdom, they can now be detained indefinitely without trial on the ground that the country is in a time of emergency (Anti-Terrorism, Crime and Security Act 2001). The UK Civil Contingency Bill is to extend the circumstances in which powers of emergency can be used. What constitutes "emergency" will be a challenge for the Court in the years to come.
114. (1994).
115. Para.38.
116. Ribitsch v. Austria (1995).
117. Yankov v. Bulgaria (2003).
118. Tomasi v. France (1992), para.115.
119. (2001), para.75.
120. (2002), para.95.
121. See, in particular, 7th General Report (CPT/Inf(97) 10).
122. Iorgov v. Bulgaria (2004), para.83.
123. Assenov v. Bulgaria (1998), para.135.
124. Para.40. See also, McGlinchey and others v. UK (2003), in particular Concurring Opinion of Judge Costa.
125. Toteva v. Bulgaria (2004).
126. Ahmed v. Austria (1996).
127. (1999).
128. I b i d.
129. See also, Separate Opinion of Mr Cabral Barreto to the Commission's report in B.B. against France (1998).
130. In the UK, the Court of Appeal recently upheld an earlier ruling that the law on banning some asylum-seekers from housing and other benefits was in breach of Article 3 ECHR, R (on the applications of Adam, Tesema and Limbuela) v. SSHD, Court of Appeal, 21 May 2004, [2002] EWCA CIV 540, [2004] All ER (D) 323 (May).
131. (2000), p.18.
132. E.g., D. v. UK (1997)
133. and Pretty v. UK (2002).
134. E. v. UK (2003), para.88.
135. See also, X and Y v. Netherlands (1986),
136. Pretty v. UK (2002),
137. M.C. v. Bulgaria (2003), para.150,
138. Toteva v. Bulgaria (2004).
139. Note that Article 6(1) of the ECHR is also relevant in safeguarding the basic rights of refugees present in the territory of a Contracting State. In this regard, entitlement to state welfare benefits has been held to amount to civil rights (Feldbrugge v. Netherlands (1986),
140. Deumeland v. Germany (1986)
141. and Salesi v. Italy (1993)).
142. Relating to certain aspects of the laws on the use of languages in education in Belgium v. Belgium (1968), pp.33-34.
143. See also, Koua Poirrez v. France (2003).
144. (1985).
145. Belgian Linguistic case (1968), p.34.
146. Koua Poirrez v. France (2003), para.49.
147. H. Lambert, The Position of Aliens in Relation to the European Convention on Human Rights, Human Rights Files No.8, Council of Europe (2001), p.14.
148. Protocol No 12 requires ten ratifications before it enters into force.