“The European Court of Human Rights is exceedingly transgressing its competence in asylum matters. The Court takes decisions on behalf of the national authorities, it enforces provisional measures despite not having the competence to do so and demands their immediate execution. It has granted property rights on unemployment benefits and has thus realized something that Karl Marx never could. The Court is being buried under new cases, partially caused by the fact that it has sneakily broadened its own competences.” Thus starts an interview with Marc Bossuyt, President of the Constitutional Court of Belgium, published by the Belgian newspaper Gazet van Antwerpen on 11 May 2010. Marc Bossuyt, also a Professor of International Law at the University of Antwerp and former Commissioner-General for Refugees in Belgium, was interviewed in connection with the upcoming release of his book “Strasbourg et les demandeurs d’asile: des juges sur un terrain glissant”. The original interview, in Dutch, can be found here. Below we will present a translation in English of the most important excerpts of a strong critique of the European Court of Human Rights, in asylum cases and beyond. We invite all of you to discuss the arguments raised by Marc Bossuyt!
Which evolutions have you noticed?
The Strasbourg jurisprudence in asylum matters has exhibited three important evolutions over the past five years. First and foremost, there has been an enormous explosion of the amount of judgments. In the sixteen years between 1989 and 2004 there were 16 judgments; in the four and a half years from 2004 to June 2009 there were 45. That means a multiplication by tenfold on a yearly basis. The first period I refer to as the ‘reserved’ period; the second as the ‘activist’.
More judgments are also being pronounced unanimously: half of the judgments in the first period, 86 percent in the second. The unanimity appears to me to be insincere and can mostly be explained by the lack of time Judges have, due to the overloaded state of the Court.
The third evolution is the most important one: while the Court used to adapt a rather understanding attitude towards the governments, its positions is now much more beneficial towards the interests of the asylum seekers.
How is this evolution shown?
We notice this especially in the jurisprudence on art. 3 ECHR. Prior to 2004 the Court found in favor of the applicant in 33% of the cases in which a violation of this provision was being claimed. Starting from 2004, the Court decided in this manner in 80% of the cases. Or, put differently: in the first period the Court found a violation once every four years, in the second one every two months.
Sometimes the Court also finds ‘procedural’ violations of article 3 nowadays, as was the case in Hussain v. Romania of 14 February 2008. The Court was of the opinion that the police had not sufficiently investigated the case of a man complaining about the violence suffered at the hands of his former girlfriend, and that the case had unjustly not been brought before the national courts. In many countries such cases and their not appearing before the courts is a daily phenomenon. The Court’s approach holds the danger of resulting in banalization of and indifference towards violations of art. 3, despite those being the most ‘infamous’ human rights violations.
Do you also sense these exaggerations in Belgian cases?
Definitely. For instance in the judgment Mubilanzila Mayeka and Kaniki Mitunga of 12 October 2006. (In this case concerning a five year old Congolese girl, Tabitha, who was travelling through Belgium to her mother who was in the middle of asylum proceeding in Canada, the Court held Belgium in violation of arts. 3, 5 and 8 ECHR for detaining the girl in a closed detention centre not adapted to the situation of minors and for her unsupervised return to the DRC; own clarification).
Apart from a just satisfaction of € 25,000 to Tabitha, her mother was also awarded € 10,000 for having experienced “a deep fear” during Tabitha’s stay in the centre. Well, Tabitha was barely treated differently from a child entrusted to a day care facility. The Court states this herself in paragraph 37! Moreover, the mother had herself left her three year old twins behind in Kinshasa for two years. Should Belgium have entrusted the girl to an 18-year old woman whose father had been arrested for sexual offences involving minors, as suggested by her lawyer at the time? The Belgian state did not spare any efforts to obtain permission from Canada for Tabitha to be able to join her mother. Six days after her repatriation to Kinshasa, she was transferred to Canada on Belgium’s costs, following interventions by the Belgian prime minister at the address of his Canadian colleague. (Personal note: paragraph 33 of the judgment in my opinion shows that the Belgian authorities had acted too hastily in repatriating Tabitha. The day following her return to Kinshasa, the Belgian authorities were informed by the Canadian embassy in The Hague that her mother had been granted refugee status and indefinite leave to remain in Canada with a work permit in 2002 and was consequently entitled to have her family join her.)
What is the problem now?
The Court increasingly puts itself in the place of the national asylum authorities, also in the appraisal of the facts. In N. v. Finland of 26 July 2005 two judges even visited Finland to ascertain the credibility of a Congolese asylum seeker, which had been questioned by three consecutive Finnish instances and by the Dutch government. The Congolese had given four different names and did not even speak the language of the tribe to which he claimed to belong. The Court found him credible nonetheless.
To determine the credibility of a Congolese adequately, it is perhaps more useful to go to Kinshasa rather than to Helsinki. This way the Court does not only judge human rights violations in the 47 member states (of the Council of Europe, own clarification), but also starts speculating about the human rights situation in many other states of the world to which asylum seekers are extradited.
The judgment in Mamatkoulov v. Turkey (Mamatkulov and Askarov v. Turkey, 4 February 2005, own addition) went even further. Turkey was judged for not complying with a provisional measure by the Court, even though no violation of art. 3 had been established. States usually respect such provisional measures, even if the Court has held in Cruz Varas and others v. Sweden, and also in Conka v. Belgium, that they are not legally binding. The ECHR does not contain any provision regarding provisional measures, let alone about their binding nature.
Such requests for provisional measures are now often ruled upon within 24 hours without the State party concerned even receiving the opportunity to be heard. The presumption of innocence and the rights of defense are not granted to the states, and definitely not to states who are not a party to the Convention.
The consequences of the Mamatkulov judgment have not waited to materialize. In 2007 the number of applications had risen to around a thousand; 260 were granted. In 2008 there were 3,200, of which 750 were granted. The Court is over encumbered, but it is itself developing jurisprudence that can only increase its caseload substantially.
The Court should limit itself?
The Court cannot lose sight of the fact that its task is of a double subsidiary nature: it comes after the national legislator, which is the sole politically responsible entity, and after the national courts. However, the Court wants to bring all regulations that have a human rights aspect attached to it within its competence, even if the contracting parties did not want this. The Court has now assumed four functions, only one of which belonging to its core duty. The Court sometimes behaves as a fourth instance court and in other times as a court of cassation (in asylum matters for what concerns art. 5) by verifying whether a State party has correctly applied its own legislation. Since the judgment in Mamatkulov it is also ordering provisional measures. Its actual task is to assess whether the national legislation of a State party and the judicial procedures followed are compatible with the ECHR. That is why the Strasbourg Court was founded.
How do you explain this change?
Probably because there exists way too much restraint to criticize the Strasbourg Court. Its judgments are regarded as unassailable and not open to criticism. Lawyers of asylum seekers and those protecting their interests cheer, while states veil themselves in silence. Strasbourg locuta, causa finita. When the doctrine expresses criticism, it is nearly always because a judgment should go even one step further. Those who are seldom criticized, run the risk of thinking that all is permitted to them.
Is this change also present in other branches of law?
The Court also fulfills its mission in a rather activist manner in socio-legal cases. Those cases normally do not pertain to the competence of the Court. But it has evoked them because they include a human rights aspect. The Court even goes so far, that one may speak of a “judicial revolution”. In Koua Poirrez v. France of 30 September 2003 the Court determined that the disability allowance granted to a person who had never paid contributions to the social security system and did not have the nationality of a country with which France had concluded a bilateral agreement, was a property right nonetheless! If social support has become a property right, then the Judges in Strasbourg have succeeded in making an owner of he who owns nothing. Even Marx had not been able to do that!
Are you alone in your vision?
I do not think so. The British Lord Hoffmann has, at his goodbye speech as Senior Law Lord of the United Kingdom in 2009, expressed very sharp criticism on the way in which the Court works, ánd on the manner in which the Judges are elected. He also lashed out at the sneaking manner in which the Court is expanding its competences. He referred to the judgment in Hatton against his own country, in which the Court held – with a mere reference to the right to private life of art. 8 – that in the end judges should be able to decide where an airport will be located and which flying routes should be used at London Heathrow. While he assumed that was why politicians were elected. That criticism merits attention.