Updated: Nov 7, 2020
"On its 70th anniversary we call upon the Governments and the people of Europe to celebrate its achievements and preserve its crucial potential, not just for our present fellow citizens but also for future generations. We owe it to them."
4 November 2020 marked the 70th anniversary of the signing of the European Convention on Human Rights (“ECHR”). Signed on 4 November 1950, the ECHR emerged as the answer to the desire to prevent the recurrence of the atrocities of World War II. This was to be achieved through a system that would ensure the protection of the most basic human rights and the respect for the rule of law, as well as through a closer political union between European states. In this context, the signing of the Universal Declaration of Human Rights (“UNDHR”, 1948), fuelled the motivation to achieve a more effective protection at a European level with the signing of the ECHR. The means of being more effective was through making the ECHR the first legal instrument to give human rights and fundamental freedoms legally-binding force.
Inspired by the UNDHR but proving that the ECHR is a “living legal instrument” which evolves together with society, shortly after the signing of the Convention negotiations re-opened to debate the rights which had been omitted from the original text. This was the origin of the so-called Protocols to the ECHR –i.e. additions to the initial text of the ECHR. They supplemented the rights contained in the Convention and provided for additional procedural rules, which the Member States had the choice whether to ratify, or not. Thereafter, further Protocols have been supplemented and elaborated, providing for the guarantee of additional rights.
Initially signed by twelve countries, the ECHR is now enforceable by all 47 European States that form part of the Council of Europe (“CoE”). The reliability of the rights and fundamental freedoms enshrined in this legally-binding treaty is ensured by the oversight of the European Court of Human Rights (“ECtHR”, 1959), an independent and international court which forms an integral part of the Council of Europe. In this sense, the ECtHR has jurisdiction to rule as the ultimate court above any other –national or supra-national. The ECtHR can make a determination on any claim brought by individuals or by the Member States of the CoE themselves, on a potential violation of the ECHR committed by any of those 47 Member States. However, while the Court has the power to issue final judgments on such cases, it does not have the power to enforce them. This is one of the most critizised shortcomings of the Convention system, as it relies heavily on the willingness of the Member States to implement the judgments.
Nevertheless, to date, with over 20,000 judgments decided by the ECtHR, the ECHR and its casuistic development serves as guidance for Member States as to how decisions should be made, be they legislative, judicial, or executive, thereby helping to raise standards of human rights protection around Europe. Moreover, it acts as a compass for the development of human rights standards in States or political unions which have not formally ratified the Convention (e.g. the European Union). It is also worth noting that the ECtHR itself has become the model inspiring other regional human rights courts, such as the African Court on Human and Peoples’ Rights (2006) and the Inter-American Court of Human Rights (1979).
“[t]he Convention system is precious and unparalleled. In these challenging and fast-moving times its relevance as an instrument for peace and stability has never been greater”.
The Court’s ability to execute Rule 39 interim measures which are essentially, urgent measures where there is an imminent risk of irreparable harm, is a powerful tool to protect migrants at risk of being expelled to their country of origin or extradited. The interim measure usually results in a suspension of the applicant’s expulsion or extradition for as long as the application is being examined.
The most common kinds of cases are those where expulsion or extradition would result in the applicant fearing for their lives (which engages Article 2 ECHR (right to life)) and/ or they would face ill-treatment, such as torture or inhumane or degrading treatment (thereby engaging Article 3 ECHR (prohibition of torture or inhumane or degrading treatment)).
Rule 39 interim measures have been used for a range of cases in this regard. This includes preventing the expulsion of an asylum seeker who could face persecution for religious, ethical or political reasons, or face ill-treatment due to their sexual orientation. It has been used to prevent the applicant being removed from the host country, where they would face sexual exploitation, as well as being subjected to female genital mutilation (FGM). In the case of Jabari v. Turkey, the interim measure was used to prevent the applicant being deported from Turkey to Iran, from where she had fled, having feared that she would be convicted of adultery. If deported, she would have faced being stoned to death or flogged.
It has even been used in Article 8 ECHR cases (right to respect for private and family life), where there is a potentially irreparable risk to private or family life. To name one example, in Amrollahi v Denmark, the applicant alleged that his deportation to Iran would sever his family relationship with his Danish wife, two children and daughter-in-law, since they could not be expected to follow him to that country. The Court applied Rule 39 to prevent his expulsion until his application had been fully examined. Ultimately, it was held that deporting him would amount to a violation of Article 8.
Thus it is clear that these interim measures have the power to save lives, prevent suffering and keep families together. Sadly, this international mechanism is much needed. As the European Legal Network on Asylum stated in its research on Rule 39, “Rule 39 interim measures provide the European Court of Human Rights with an avenue to ensure that applicants will not be subjected to Member State action in possible contravention of their Convention rights before their cases can be heard before the Court.”. As one Ukrainian lawyer put it in that report, “The Court’s interim measures are sometimes the only way to make national authorities adhere to international standards and respect human rights".
The recognition of the value of the ECHR and the ECtHR by the international community
After 70 years, the European Convention on Human Rights and the European Court of Human Rights continue to be highly valued by the international community. As the saying goes, actions speak louder than words.
During 2020, Europe was severely affected by COVID-19, leading numerous countries to declare national states of emergency, which resulted with the restriction of certain fundamental rights. However, barely any State resorted to applying Article 15 ECHR which allows Member States to derogate from their obligations enshrined in ECHR “In time of war or other public emergency threatening the life of the nation”, with exception to the obligation towards the right to life, prohibition of torture, prohibition of slavery and forced labour, and no punishment without law (Article 15.2 ECHR). As of today, during 2020, only 10 out of the 47 Member States of the CoE chose to apply Article 15 ECHR. There could be various reasons why States chose not to derogate from the ECHR; some might believe the Convention gives leeway to limiting rights under the pretext of public safety, others might think that even during a pandemic one must not turn away from the obligations and values framed within the ECHR. One thing is for sure, if rights enshrined in the ECHR were infringed and no derogation under Article 15 ECHR had been communicated, the State would open itself up to various cases before the ECtHR which in return would make sure the rule of law and the values of human rights prevail.
On the other hand, international organisations demonstrate how important they believe ECtHR judgments are by submitting third party interventions through Article 36 ECHR. The United Nations High Commissioner for Human Rights, the United Nations High Commissioner for Refugees (UNHCR), the CoE Commissioner for Human Rights, the European Union Agency for Fundamental Rights, amongst other actors, have intervened before the ECtHR in cases they had a particular interest in given the effect the judgment might have on legislation across Europe. The Court’s judgments are binding on the Member State concerned; however, the judgments ultimately create jurisprudence of the Court which in turn, can affect all Member States or even the European Union (“EU”).
An example of when the effect of the Court’s judgment was noticed, was when the EU repealed its Dublin II Regulation a few months after the ECtHR ruled on MSS v. Belgium and Greece, a case UNHCR, amongst other organisations, intervened in as a third party. The Court found that both countries had violated Article 3 ECHR, amongst other Articles, when sending back an Afghan applicant through the Dublin II Regulation, from Belgium to Greece, given the latter's inadequate asylum conditions. Thus, assisting the Court with making accurate judgments through third party interventions is key for many international organisations that seek to uphold the human rights of migrants, asylum seekers, and refugees.
The ECtHR and migration
The ECtHR has made great strides with its jurisprudence on topics concerning migration and forced migration. Cases such as Hirsi Jamaa and Others v. Italy come to mind. Italy was condemned for violating Article 3 ECHR as well as Article 4 Protocol No. 4 (Prohibition of collective expulsion), amongst other Articles, for conducting a pushback of migrants intercepted on the high seas. “The Italian authorities should have ascertained how the Libyan authorities fulfilled their international obligations in relation to the protection of refugees"  and were also condemned because of the lack of "guarantees ensuring that the individual circumstances of each of those concerned were actually the subject of a detailed examination.”  In Saadi v. United Kingdom the Court found that for cases concerning immigration detention, “the length of the detention should not exceed that reasonably required for the purpose pursued.” . The Court is currently dealing with MA v. Denmark, an important case analysing the legitimacy of a difference in waiting time to seek family reunification for those who are recognised as refugees and those who receive protection but not as UN Convention Refugees. These were just a few of the numerous cases concerning migration the ECtHR has dealt or is dealing with.
At times the Court has not been able to give solutions, however in those cases it reminds Member States that they have the power to protect the rights of migrants and refugees. This can be noticed in M.N. and Others v. Belgium, which concerned a Syrian family whose request for humanitarian visas before the Belgian Embassy in Lebanon, to then be able to formally seek asylum in Belgium, was rejected. Although the Court found the case to be inadmissible, it “notes that this conclusion does not prejudice the endeavours made by the States Parties to facilitate access to asylum procedures through their embassies and/or consular representations.” 
The ECtHR, has without a doubt contributed greatly to affording protection to vulnerable persons. However, at times it has handed down judgments which might not have reflected the true realities of asylum seekers. An example of this was through the creation of the “own conduct” doctrine that was established in case N.D. and N.T. v. SpainI, that involved two applicants; a Malian (who sought asylum to then have the application rejected) and an Ivorian, who scaled a fenced border between Spain and Morocco with numerous migrants. Once they touched Spanish soil, the Spanish authorities handcuffed them, took them back to Morocco and handed them to the Moroccan authorities. The ECtHR established that “the applicant’s own conduct is a relevant factor in assessing the protection to be afforded under Article 4 of Protocol No. 4 [...] the same principle must also apply to situations in which the conduct of persons who cross a land border in an unauthorised manner, deliberately take advantage of their large numbers and use force, is such as to create a clearly disruptive situation which is difficult to control and endangers public safety”  - . The ECtHR went on to analyse whether the “State provided genuine and effective access to means of legal entry” . However, during their analysis, the Court pointed out that it did not have to take position on whether or to what extent the State would have brought the applicants within their jurisdiction, if they had sought international protection there, and whether the State would thus also have been capable of providing the applicants with the required level of access.  Therefore, the Court failed to fully appreciate the complexities that asylum seekers face when attempting to enter countries. This can often include difficulties in entering through legal means. The consequence, as was the case in N.D and N.T, is that the asylum seeker is penalised for illegal entry, when the grim reality is that it was the only means available to them.
Another example of an ECtHR case which fell short in protecting migrants is the case of Ilias and Ahmed v. Hungary. In that case, the true meaning of detention was questioned. The case concerned two applicants, who crossed through Serbia to then seek asylum in Hungary. During the asylum interview, the applicants were asked why they did not seek asylum in Serbia. They answered that they believed that the possibility to seek asylum in Serbia was non-existent or ineffective. They were denied asylum because Serbia was considered a safe third country due to a Government Decree. The applicants spent 23 days in Röszke transit zone, at the Hungarian-Serbian border, while waiting for their appeal to unfold. Their asylum claims were rejected and they were served with an expulsion order.
The Chamber of the ECtHR held that the applicants being held in the transit zone with Serbia being their only exit did not rule out the possibility of an infringement of liberty, as it potentially amounted to refoulement (i.e. repression) . However, the Grand Chamber subsequently held otherwise. The Grand Chamber held that it was not a deprivation of liberty, despite the applicants’ fears that they would not be able to access asylum procedures in Serbia, and there was a consequent risk of chain-refoulement. The Court of Justice of the European Union (“CJEU”) on the other hand found, in a case with similar facts, “that their being placed in the sector of the Röszke transit zone reserved for third-country nationals whose applications for asylum have been rejected constitutes detention contrary to the provisions of EU law applicable to them.”  It seems as though the CJEU was closer to understanding the realities that many asylum seekers are essentially stuck between Hungary and Serbia once their asylum applications are rejected in Hungary due to the assumption that Serbia is a safe third country.
Migration has become a highly politicised topic throughout the world. However, through the cases presented before it, the ECtHR attempts to establish legal limitations to the anti-migration political rhetoric that pushes for policies that would infringe on human rights established and recognised for well over 70 years. We hope the ECtHR keeps up its groundbreaking work and it continues to not succumb to the political pressures that surround the issues it deals with.
NMM wants to wish the ECHR a very happy birthday and celebrate what has been achieved so far. This binding instrument has helped to solidify the rights of many, including migrants, asylum seekers and refugees. It provides invaluable oversight and calls out Member States who violate these rights. The powers at the ECtHR's disposal can significantly shape the course of an applicant's life, indeed in some cases, it can be the difference between life and death. We say, that's 70 years well spent. Here's to many more years of the ECHR.
Both Imogen and Marie previously worked at the European Court of Human Rights, whilst Chiara Maria worked close by at the UNHCR Representation to the European Institutions in Strasbourg.
Find out more about Rule 39 interim measures: https://www.echr.coe.int/documents/fs_interim_measures_eng.pdf
Find out more about the ECtHR case law on migration matters: https://www.echr.coe.int/Documents/Guide_Immigration_ENG.pdf
What has the ECHR ever done for us video - Courtesy of Guardian News & Media Ltd
 While the EU has not yet ratified the convention –although multiple initiatives have brought this possibility forward-, all EU MS have ratified the Convention. Moreover, the fact that the EU considers the ECHR as the ground the democratic backbone of European society can clearly be felt from the fact that the judgements handed in by the EU Courts, whenever dealing with the Charter of Fundamental Rights of the European Union, are mandated to take inspiration and guidance from both the ECHR and the case-law by the ECtHR. Abdollahi v Turkey, (no. 23980/08); F.H. v. Sweden (no. 32621/06); Y.P. and L.P. v. France (no. 32476/06); M.A. v. Switzerland (no. 52589/13); W.H. v. Sweden (no. 49341/10); F.G. v. Sweden (no. 43611/11)