Academic journal article Suffolk Transnational Law Review

Collective Expulsion of Aliens: The European Court of Human Rights (Strasbourg) as the Island of Hope in Stormy Times?

Academic journal article Suffolk Transnational Law Review

Collective Expulsion of Aliens: The European Court of Human Rights (Strasbourg) as the Island of Hope in Stormy Times?

Article excerpt

I. Introduction

The European Court of Human Rights (hereafter: "ECtHR" or "Court") was established as a reaction to the atrocities committed in World War II. It decides the cases on the basis of the European Convention on Human Rights (hereafter: "ECHR"), adopted on 4 November 1950, (1) and has become over the decades the key player in the protection of human rights in Europe. It is sometimes referred to as the "Conscience of Europe" (2), an institution established by States which are, as the Preamble of the ECHR expresses, "likeminded and have a common heritage of political traditions, ideals, freedom and the rule of law". Forty seven (47) Member States of the Council of Europe, the mother organization of the Court, are currently under its jurisdiction. (3)

One of the cornerstones of the ECHR system is the right to individual application within the meaning of Article 34, according to which individuals can seek redress before the Court for violations of the rights set forth in the ECHR or the protocols thereto. (4) This direct access to an independent judicial body that is entitled to examine allegations of human rights abuses is unique in the world. Another reason for the Court's efficiency are the interim measures that the Court can impose on States Parties pending the resolution of a case in Strasbourg, in conformity with Rule 39 of the Rules of the Court. (5) This tool is almost exclusively applied in cases of expulsion or extradition and, therefore, very relevant in the cases examined in the present contribution. (6)

Expulsion and extradition cases are among the most important and most frequent cases of the Court. Traditionally, the key provisions in situations of expulsion and extradition have been Articles 3 (prohibition of inhuman and degrading treatment) and 8 (respect for private and family life). The former protects foreign individuals, in particular asylum seekers, against their return to a State where they face a real risk of torture or ill-treatment. One of the landmark judgments was Soering v. the United Kingdom1 in which the applicant, a German national, was facing extradition from the United Kingdom to the United States for charges of murder. In the Court's view, having regard to the very long period of time spent on death row in [such] extreme conditions, with the ever present and mounting anguish of awaiting execution of the death penalty, and to the personal circumstances of the applicant, the applicant's extradition to the US would have exposed him to a real risk of treatment going beyond the threshold set by Article 3. (8) The underlying logic of Article 8 in expulsion and extradition cases is to protect a foreign applicant against removal when he maintains family ties in the country of residence. (9) In addition, particular guaranties applicable exclusively in situations of removal of individuals from a State, but less important in practice than Articles 3 and 8, are Article 3 of Protocol No. 4 (Prohibition of expulsion of nationals) and Article 1 of Protocol No. 7 (Procedural safeguards relating to expulsion of aliens). It is important to mention that these protocols are far from being ratified by all the Member States of the Council of Europe. (10)

The provision which will be examined in more detail in the present contribution is Article 4 of Protocol No. 4, protecting aliens against collective expulsion. Protocol No. 4 having been adopted already in 1963, (11) the ECHR has found the first breach of this guarantee only in 2002, in the case of Eonka v. Belgium, that will be examined below. (12) More recently, this provision has been invoked more often and the Court has concluded on several occasions that a State Party had committed collective expulsions in breach of Article 4 of Protocol No. 4. (13)

The first chapter (I) will briefly explore the definition of "collective expulsion," its legal basis (Article 4 of Protocol No. 4) and summarize the preparatory work thereto. …

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