European Convention on Human Rights - Essay Example

?Article 6 of the European Convention on Human Rights s that “everyone is en d to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law.”1 While the precedent and application of this right domestically in criminal law proceedings is well established under Common Law precedent among EU members and other nations that have signed and ratified the ECHR, there exists currently an area of dispute concerning the applicability of this right to immigration and deportation hearings that operate outside of the courts of traditional Common Law institutions. This division is largely jurisdictional, based on the differences between immigration law and criminal law, as well as being technical in founding the division on the notion of difference between the rights of a citizen and non-citizen. The nature of human rights is for them to apply to all people regardless of race, nationality, sex, or ideology. However, the legal precedent regarding the applicability of human rights to aliens and immigrants in deportation hearings largely excludes Article 6 from applicability based on the rulings that these are administrative hearings and not criminal trials or charges. Despite the fact that fundamental human rights are being decided and discussed in immigration and alien extradition proceedings, the courts have allowed little extension of the ECHR in this realm of legal practice. Article 6 of the European Convention on Human Rights additionally sets requirements for a public hearing and announcement of the verdict, while accepting that this can be retrained in certain instances of “the interest of morals, public order or national security in a democratic society, where the interests of juveniles or the protection of the private life of the parties so require, or the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice.”2 The procedural safeguards found in this section of Article 6 have been determined to be not applicable to administrative decisions, based not on any of the reasons stated therein, but rather in the jurisdiction of the proceedings for the expulsion, deportation or extradition of aliens. In this regard, the current state of the law can arguably be said to be based in outmoded aspects of identity that are inconsistent with globalized society and modern forms of mass-transportation. Populations and economies are much more dynamic in the 21st century than in the early era of modernity when the rights of sovereignty of nation-states and the fundamental rights of individuals were first developed into human rights accords. Human rights are designed to protect fundamental liberties of the individual against intrusion by the State in recognition of the inalienability of the stated rights. Thus denying them by fact of the temporary “alien” status of the petitioner or a jurisdictional element of law seems to point to the circumvention of the intent of the founders in this instance. Article 6 of the European Convention on Human Rights also states that, “everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law. Everyone charged with a criminal offence has the following minimum rights: (a) to be informed promptly, in a language which he understands and in detail, of the nature and cause of the accusation against him; (b) to have adequate time and the facilities for the preparation of his defence; (c) to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require; (d) to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him; (e) to have the free assistance of an interpreter if he cannot understand or speak the language used in court.” 3 The application of this statute to questions of immigration, detention, deportation, and extradition of aliens because fundamental rights of liberty, as expressed in the basic right to travel, live, and work where one wants without oppression are not being upheld in these cases. In stating that this is an administration issue without legal recourse to rights charters for defendants is to establish a precedent that would allow for mass bureaucracies that are equipped with police and judiciary powers, but cannot be constrained. For example, these bureaucracies may have the power to arrest, imprison, and sentence a person unjustly, causing massive harm to the individual’s own path of self-determination and family livelihood, simply because the courts refuse to recognize the individual rights of the “alien”. This issue is seen not only in cases related to Article 6 of the ECHR, but also in United Nations accords revolving on the same issue of international law. For example, as the UNHRC writes: “Asylum-seekers and refugees have successfully resorted to the European Court of Human Rights (the Court) to prevent their return to territories where they fear torture, inhuman or degrading treatment or punishment and to secure additional rights such as family reunion or procedural guarantees in situations of detention. The Court has delivered a number of important Judgements on these various issues, demonstrating the links that exist between international human rights and international refugee law. The basic international legal text for the protection of refugees and asylum-seekers is undeniably the 1951 Convention Relating to the Status of Refugees and the 1967 Protocol to that Convention. In the face of more restrictive policies and practices put in place by States, lawyers have also been able to turn to the protections afforded by international human rights instruments, including the ECHR.”4 The United Nations suggest that ECHR does in fact apply to aliens at all times, and other rights guaranteed in the charter are viewed as inalienable, but that the binding international law concerning aliens has been established in the Convention Relating to the Status of Refugees in 1951. Appeals to the ECHR in courts are constructed by attorneys as an additional route of appeal when other challenges to existing law or practice through domestic statute and UN protocols have failed. Another reason for this is the fact that ECHR case law has a well established precedent and a large number of nations honoring it in civil and criminal cases. This highlights another factor concerning the application of Human Rights statutes in domestic jurisdictions, namely the status of treaty law as it is accepted and applied through domestic legal institutions. It is doubtful that more fundamental rights violations would be acceptable from bureaucratic sources legally when regarding to aliens as their abuse would fall under statutes of domestic criminal law and not require an appeal to treaty aspects of international law. The extent of the applicability of the ECHR via treaty accords in domestic case law may vary tremendously on the culture and customs of the host country. As Lambert writes: “The law of the European Convention on Human Rights relating to aliens has grown significantly over the last twenty years. The Council of Europe now comprises 46 members, including Bosnia and Herzegovina, Serbia and Monaco as the last three countries to have joined the Organisation on 24 April 2002, 3 April 2003 and 5 October 2004, respectively. All 46 members have ratified the European Convention on Human Rights (Monaco being the last country to have done so on 30 November 2005). Supplementary rights and freedoms to those guaranteed in the European Convention on Human Rights are provided in Protocols Nos. 1, 4, 6, 7 and 13.”5 English case law can be taken as generally binding and accepted as the standard application of Common Law precedent for the purposes of analyzing the applicability of ECHR statutes in alien deportation and other immigration hearings. For example, in Birdi v. Secretary of State for Home Affairs (1975), in deciding an extradition amnesty case, the UK court decided "the provisions of Article 6, Paragraph 1, entitling a person to 'fair and public hearing' in the determination of his civil rights or in criminal charges brought against him, did not apply to administrative procedures or licenses such as immigration procedure."6 However, it is important to note that this precedent has also been upheld in other countries, such as in S.T. v. France (1993) and Sejdovic and Sulejmanovic v. Italy (2002). In looking exclusively at cases decided by the ECHR, Heckman describes the process in which the limited applicability of its statues became accepted in legal precedent in international law, citing Ahani v. Canada,: “In Ahani v. Canada, the United Nations Human Rights Committee considered the procedural and institutional rights conferred by the International Covenant on Civil and Political Rights on aliens who face deportation on national security and other grounds. By ‘reading in’ some of the due process protections reflected in article 14 of the Convention, the decision gave meaningful content to an alien’s article 13 right to submit reasons against his expulsion and to have his case reviewed by a competent authority. These include the right to sufficient notice of the case so that the alien can resist removal, accompanied by appropriate disclosure, and the right to reasons for the final removal decision. Unfortunately, the decision failed to determine whether article 14 applied directly to immigration decision-making, entitling aliens to a hearing before an independent and impartial tribunal.”7 Dijk, Hoof, Hoof, & Heringa reviewed the case law related to the application of Article 6 in immigration and deportation hearings regarding aliens as decided by the European Human Rights Commission, citing Ahani v. Canada as well as: + Mohammad Alam v. the United Kingdom (1967) – where the European Human Rights Commission considered the right to appeal for aliens in immigration & deportation hearings. + Peschke v. Austria (1982) - the European Human Rights Commission ruled on the question that detained people may have a right to be present at immigration & deportation hearings. + Knechtl v. the United Kingdom (1970) - the European Human Rights Commission discussed special arrangements for accused detainees in instances where bias or malice on behalf of authorities is evident.8 All of these cases upheld the limitation of applicability of Article 6 of the ECHR in cases related to “aliens” on the grounds previously cited relating to the administrative nature of the proceedings and the non-citizenship status of the petitioners. The latest case to challenge this limitation and precedent is Maaouia v. France (2000). Helene Lambert describes this case in "The position of aliens in relation to the European Convention on Human Rights,” published in 2006. The case involved a combined instance of criminal law related to armed robbery and assault committed by an alien without technical citizenship rights in France. The defendant was imprisoned a second time following his imprisonment for the crimes for failing to abide by a deportation hearing and leave the country. “The applicant complained that the length of the proceedings for the rescission of the exclusion order was unreasonable, and therefore in breach of Article 6 (1) of the ECHR. The Commission found the application admissible and, for the first time, decided to refer such a case to the Court. In a restrictive judgment, the Court simply confirmed the classical case law of the Commission that Article 6 (1) does not apply to such proceedings.” “In their dissenting opinion, Judges Loucaides and Traja expressed the regret that ‘both the Court and the Commission have shown great reluctance to interpret in a liberal way the concept of ‘civil rights and obligations’’. In the absence of a definition of the word ‘civil’ in the ECHR, they decided to refer to Article 31 (a) of the Vienna Convention on the Law of Treaties as tools for interpretation, and they suggested that, in the context of Article 6 (1), the word ‘civil’ simply means ‘non-criminal’. They pointed to the fact that the Court itself has been willing to extend the concept of ‘civil rights and obligations’ to matters falling outside the strictly defined private law sphere, e.g., claims for social security and social assistance, judge’s pension. Thus, in the light of the object and purpose of the ECHR, Article 6 (1) should be given the broadest possible meaning; the principle of good faith supports this approach.”9 The result of this, as Lambert writes, is that immigration and detention cases regarding aliens are still unable to appeal to the courts of member ECHR nations under basis of Article 6 due to the “limited guarantee of procedural due process in cases of expulsion.”10 Furthermore, this results in a situation of “Qualified rights (for example, by the engagement of other rights, or by the needs of society, e.g., Articles 8-11) or limited rights (i.e., only in defined circumstances and ways, e.g., Articles 5 and 6), according to which states are entitled to restrict the enjoyment of these rights on the ground of concepts to be defined by the states (e.g., necessary in a democratic society, in the interest of the community, with a view to deportation.)”11 The consequence of this precedent is that administrative bureaucracies with police powers such as enjoyed by Immigration authorities as allowed by this interpretation of the ECHR can thus deny fair and public hearings, as well as the required independent and unbiased judicial review of justice, simply on the basis of the arbitrary distinction between administrative and criminal proceedings. Bibliography: Council of Europe (1950), The European Convention on Human Rights and its Five Protocols, HR-Net (Hellenic Resources Network), Rome, 1950, Web, viewed 9 January 2011, . Drzemczewski, Andrew Z. (1999), European human rights convention in domestic law: a comparative study, Cambridge, Oxford University Press, 1999, Web, viewed 9 January 2011, . Dijk, Pieter & Hoof, Godefridus J. H. & van Hoof, G. J. H. & Heringa, A. W. (1998), Theory and practice of the European Convention on Human Rights, Martinus Nijhoff Publishers, 1998, Web, viewed 9 January 2011, . Lambert, Helene (2006), The position of aliens in relation to the European Convention on Human Rights, Strasbourg: Council of Europe, December 2006, Web, viewed 9 January 2011, . Mowbray, Alastair R. (2007), Cases and materials on the European Convention on Human Rights, Cambridge: Oxford University Press, 2007, Web, viewed 9 January 2011, . UNHCR (2006), UNHCR Manual on Refugee Protection and the ECHR, REFUGEE PROTECTION AND THE EUROPEAN CONVENTION ON HUMAN RIGHTS, April 2003, Updated February 2006, Web, viewed 9 January 2011, . Van den Wyngaert, Christine (1990), Applying the European Convention on Human Rights to Extradition: Opening Pandora's Box?, The International and Comparative Law Quarterly, Vol. 39, No. 4, pp. 757-779, Oct., 1990, Web, viewed 9 January 2011, . Weil, Gordon L. (1963), The Evolution of the European Convention on Human Rights, The American Journal of International Law, Vol. 57, No. 4 pp. 804-827, Oct., 1963, viewed 9 January 2011, . Read More