The European Convention on Human Rights 1950 vs UN Convention on Status of Refugees - Article Example

PROTECTING ASYLUM SEEKERS The European Convention on Human Rights 1950 Versus UN Convention on Status of Refugees 1951". Introduction The provisions of European Conventions on Human Rights, 1950 vis-'-vis those in UN Convention on Status of Refugees, 1951 have been found to be more effective in providing protection for the asylum seekers within European countries. In most countries, an individual appeal to an international tribunal can only be done under provisions of European convention on Human Rights, 1950. This is the most effective safeguard for asylum seekers and refugees despite it giving priority to individuals over the state. Many principles laid down by the Court have played a significant role in securing the rights of individuals who are likely to face prohibited treatment in their original countries. Some provisions where there is specific advantage to individuals due to European Convention are discussed in sufficient details in following paragraphs. Alienated Individuals Geneva Convention provides protection to an individual under Article 1 only if he is outside the country of his nationality residence. European Convention provides a wider implication whereby even situations of denied asylum seeker's close family members hold nationality of such state are covered. Exile of such individuals would breach Article 3 (along with Article 8) if they were likely to face the risk of ill-treatment in the event of them accompanying such a denied asylum seeker. Similar clause shall also be applicable even in case of a country's citizens. Persecution - "Convention Reason" Geneva Convention becomes applicable in the event of an individual likely to face persecution due to reasons mentioned in Article 1 which include "race, religion, nationality, membership of a particular social group or political opinion." However, no such limitation applies under Article 3 of European Convention. The Convention applies equally to the process of extradition, removal of asylum seekers, those granted humanitarian status but not recognised as Convention refugees and those Convention refugees who have lost protection of Geneva Convention. What matters in European Convention is the actual risk of persecution, and the basis for such ill-treatment is not important. State Responsibility An important inherent feature of Geneva Convention's Article 1 is the State responsibility whereby it provides protection only to those individuals who have evidently lost the protection of the state for any known or unknown reason. Geneva Convention expects a refugee to fear persecution which is direct fallout of failure of state protection. However, court rulings have stated that absence of state authority is not related to risk likely to be faced by an individual (as in Ahmed Vs Austria) and thus protection is applicable to an individual. This argument has again been stated in various rulings that Geneva clause of lost state protection cannot be applied universally against individuals appealing under European Convention. Exclusion Clauses Exclusion clauses of Geneva Convention in Article 1(f) talk about non-applicability of protection provisions to individuals who have committed serious crimes against peace, a war crime, crime against humanity, serious non-political crime outside the country of his refuge prior to admission to that country as a refugee or those guilty of acts contrary to the purposes and principles of the United nations. Critics of this Article say that there is no reason for a person to be forever barred a refugee status if he has already been convicted of a serious crime and served his sentence. There seems no logical reasoning either to hold such prejudice against an individual for life. While Geneva Convention provides protection to only a privileged set of individuals and one can easily loose such protection under provisions of Geneva Convention, European Convention remedies this serious lapse. Danger to Security Geneva Convention Article 33(2) states that protection can be lost if there are justifiable grounds for regarding an individual as a danger to national security of the country in which he is or if he is convicted of a particularly serious crime or constitutes a danger to the society. However, protection accorded by Article 3 of European Convention is not limited in this manner. In Soering case, the court ruled that "It would hardly be compatible with the underlying values of the Convention['] were a Contracting State knowingly to surrender a fugitive to another State where there were substantial grounds for believing that he would be in danger of being subjected to torture, however heinous the crime allegedly committed." (Mole, 2002) The Court has subsequently even admitted that such acts may result in individuals seeking safe haven in European states, however, the Commission's view remains that the state has adequate means to deal with any potential threats since individual is always covered by ordinary criminal laws of the concerned state at any given point of time. Thus Article 3 of European Convention offers much wider protection than that provided by Articles 32 and 33 of Geneva Convention. The "Real Risk" Test The court has exercised assessment rights in determining real risk of ill-treatment based on all the material put forward by the state against the individual falling under Article 3, and if necessary the material can be obtained ex-proprio motu. This aspect is of particular value while affirming or rejecting the appreciation of applicant's fears. Since the Courts has taken adequate note of the history (Chahal and Ahmed cases), the present situation was more important for a verdict. Hence, but for the intervention of European Convention in such cases, the individuals would have been deported under domestic law. However, the Court's scrutiny of the existence of a risk of ill-treatment in breach of needs to be a strong one in view of unqualified nature of this provision and the fact that it enshrines one of the fundamental values of the democratic societies making up the Council of Europe. UN CAT Committee UN Convention against torture and other Cruel, Inhuman or Degrading treatment or Punishment has established new important principles. A consistent pattern of gross and massive violations of human rights should be given due considerations by state parties when discussing expulsion of an individual. If a country is not party to any Convention, the individual would lose protection of the Convention if returned to such a country and have no more legal possibility of applying to the Committee for protection. This is not just informative but also provides for a legal angle for European Convention. Article 5372 of the European Convention states that a provision may not be applied inconsistent with other international obligations of the state in question. The Other Articles Article 2 - The right to life. For the states which are parties to Protocol No. 6 to the Convention, the commission can consider it a breach of protocol to extradite a person to a state where he faces a definite risk of a death penalty. Any individual likely to face capital charges or execution on return is thus protected in states which have ratified this protocol no 6. No such protection is provided by the Geneva Convention. Article 6 - The right to a fair trial. In an event of fugitive facing unfair trial in the country of expulsion violating the provisions of Article 6 for the right to a fair trial, the Commission, while explicitly discouraging any imposition of their standards on third states or territories, states that contracting states are obliged to refuse their cooperation in the event of a clear indication of conviction being a result of deliberate denial of justice. This obligation is to be applied to cases where individual faces trial in a country which has a known history of blatant abuse of fundamental principles of fair trial. This however does not apply to asylum determination process in the receiving country. Article 7 - Freedom from retroactive criminal offences and punishment. The same reasoning of Article 6 logically applies to Article 7 of the Convention. The argument is further influenced by the fact that this provision cannot be derogated from even when conditions of national emergency or war exist. Article 4 of Protocol No. 7 - Prohibition on double jeopardy. The commission protects an individual in case of double jeopardy and trial or conviction for the same offence in the same jurisdiction. Article 4 of Protocol No. 4 - Prohibition on the collective expulsion of aliens. Collective expulsion is any attempt by an authority to compulsorily force aliens as a group to leave the country except when such action is taken on the basis of a rational and purposeful consideration of each individual alien in a group. European convention discourages any such act unless proven to be taken in national interest. Expulsion to "Safe" Countries Article 33(1) of Geneva Convention in parallel to Article 3 of the European Convention only considers the principle of non-refoulement which refrains state from expelling or returning refugees to territories where their lives would be threatened. In principle, however, there is no prohibition of sending an individual to an unsafe state. in practice they have been returned to third safe countries, which they passed through to reach the state where they applied for asylum. However, such expulsions have been systematically applied in European countries since 1990s. However, there is still no common footing on grounds which states need to consider before applying the criteria of safe third world country. Procedural Guarantees And The Right To An Effective Remedy The rights which have been guaranteed for a remedy need to be practical and effective, and not just meet theoretical requirements of the Convention. European states have consistently sought to deny entry to individuals with dubious claims and tightened regulations and procedures to reduce the incentives for asylum seekers, especially from areas of conflict by denying them access to full asylum seeking procedure itself. Those coming from safe countries are directly denied asylum procedures and repatriated. Strict Visa procedures have been implemented to the extent that even passengers in transit are now required to hold a transit visa in many European countries. Carrier liability has been imposed to limit arrival of asylum seekers arriving without valid papers by transferring the cost of returning refused passengers to their country of departure along with a fine. However, repeated bouncing back of asylum seekers is in contravention of European convention. Further, contravention of Article 3 or 33(1) of European or Geneva Convention also takes place when an individual is deported to third safe country. Fast track procedures deny asylum seeker access to independent agency capable to review the decision. Right to appeal or review and Article 13 Article 13 of the European Convention on Human Rights provides: Everyone whose rights and freedoms as set forth in this Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity. It follows that under the Convention an asylum claimant who has an arguable case must have access to both asylum (or other protection) determination procedures and a national remedy in the case of refusal and the consequent threatened expulsion. The fact that the claim may later be found to be "manifestly ill-founded" in European Convention on Human Rights terms is not sufficient to excuse Contracting Parties from satisfying this obligation. In European Convention this right exists and has been led to review of many cases by the Commission as in cases of Powell and Rayner. Further, effective remedy under national authority for those whose rights and freedoms have been violated need not be by judicial authority in all cases. The view has since been endorsed with many countries implementing new authorities for Article 13 based review. The subsidiary protection of the European Court of Human Rights The right of individual petition under European Convention under Articles 34 and 35 provide additional protection to refugees accessing their rights against states. However, there exists no international judicial mechanism to safeguard refused asylum seekers under Geneva Convention. The right to petition the Court as provided by the European Convention is an important safeguard against curtailment of protection available in international law to asylum seekers. Forced Eviction of Hesitant Deportees Article 3 and 8 cover not only the likely ill-treatment of an individual in his country of destination but also the manner in which deportment will be executed. Many instances have been documented by Amnesty international of life-threatening and even fatal ways used in carrying out forced expulsions. These include cushion treatment (to stifle protests) which risk (and have actually caused) suffocation, administration of drugs, taping over of mouth and nose, confinement in a straitjacket, handcuffing to a wheelchair or airline seat, and forcing adults to undertake long journeys wearing incontinence pads so that they do not have to be unshackled to use the toilet, are all in regular use. (Mole, 2002) The commission has described such handling as humiliating and debasing violating the spirit of Article 3. European Union has been asked to prepare a report on such forcible expulsions, means used to curtail them in future and remedial action being taken. Conclusion While both the UN Convention as well as European Convention provide for human rights protection to be exercised in the sensitive area of providing asylum to people from other countries/regions, it is apparent that European Convention provides for more opportunities and avenues to seek action against injustice meted out against them. The process of asylum is far more complicated under UN Convention due to lack of any uniform international law, while this aspect is looked after rather well in European Convention. Further, certain limitations or specific reasons applicable for protection against persecution in destination countries give an impression that Geneva Convention has some presupposed favourites who need to be considered on a special footing. An individual convicted for a crime in his previous life and having served the sentence cannot be prejudiced against for the rest of his life. This lapse of Geneva Convention has been adequately covered by European Convention. There are certain other exclusions and provisions which have a mystical outlook in Geneva Convention but have been attempted and corrected for by the European Convention. In future, with European Union countries getting more and more involved together in administration, judicial activism and human rights issues, it can be expected that more positive provisions favouring genuine and legitimate asylum seekers shall be implemented in future. Bibliography 1. Mole Nuala, 2002. Asylum and the European Convention on Human Rights. Retrieved from http://www.coe.int/T/E/Human_rights/h-inf(2002)9eng.pdf. 2. The European Convention on Human Rights and its Five Protocols. Retrieved from http://www.hri.org/docs/ECHR50.html. 3. Convention relating to the Status of Refugees. Retrieved from http://www.unhchr.ch/html/menu3/b/o_c_ref.htm. Read More