The European Court of Human Rights has been widening its remit in asylum and immigration cases by a controversially liberal interpretation of its powers under the European Convention of Human Rights. This undermines the separation – and, indeed, the balance – of powers between the legislative, executive and judicial branches on which democratic government is based.

The Court’s generous decisions have attracted a growing number of asylum and immigration cases and contributed to its heavy workload. It is doubtful if time pressure permits judges to give each case the required consideration.

There are indications of over-reliance on less qualified and more passionate staff members, which inevitably reflects on the quality of judgments. This can be illustrated by the Court’s decisions against Malta on July 23, 2013, in the Suso Musa and Aden Ahmed cases.

The Court’s backlog led to three high-level conferences which brought together the Council of Europe’s 47 member states and the Court – in Interlaken, Switzerland (2010), Izmir, Turkey (2011) and Brighton, United Kingdom (2012).

The Interlaken conference stressed “the subsidiary nature of the supervisory mechanism established by the Convention” and the fundamental role played by national governments, courts and parliaments in protecting human rights at the national level. It called “for a strengthening of the principle of subsidiarity” and invited the court to “avoid reconsidering questions of fact or national law that have been considered and decided by national authorities”.

The Izmir conference recalled that the subsidiary character of the Convention mechanism is fundamental and that “the Court is not an immigration Appeals Tribunal or a Court of fourth instance”.

It also specifically invited “the Court, when examining cases related to asylum and immigration, to assess and take full account of the effectiveness of domestic procedures and, where these procedures are seen to operate fairly and with respect for human rights, to avoid intervening except in the most exceptional circumstances”.

The Brighton conference agreed that: “States Parties enjoy a margin of appreciation in how they apply and implement the Convention, depending on the circumstances of the case and the rights and freedoms engaged.

Maybe next time the Strasbourg Court should let the lawyers draft the judgment too

The Convention system is subsidiary to the safeguarding of human rights at national level and national authorities are, in principle, better placed than an international court to evaluate local needs and conditions. The role of the Court is to review whether decisions taken by national authorities are compatible with the Convention, having due regard to the State’s margin of appreciation.”

It further welcomed “the development by the Court in its case law of principles such as subsidiarity and the margin of appreciation” and encouraged it “to give great prominence to and apply consistently these principles in its judgments”.

In the Suso Musa and Aden Ahmed judgments, the Court threw to the wind the principles of subsidiarity, margin of appreciation and exhaustion of domestic remedies and decided on cases that had never been considered – much less decided – by Maltese courts. In addition, there are instances in the judgments where the Court expects evidence to be produced by the Maltese government, as the defendant, rather than by the failed asylum seeker at the origin of the case.

It is understandable that Maltese lawyers should try to bypass the local courts (including the Constitutional Court), which know local conditions best, and prefer instead to go to a foreign court, which depends on selected secondary sources. It is more surprising that the Strasbourg Court should acquiesce to such methods.

Aden Ahmed, a Somali who “entered Malta irregularly by boat”, had her asylum application turned down. She escaped to the Netherlands, was returned to Malta and pleaded guilty before a Maltese court to escaping from a detention centre, giving false information and making use of forged documents.

She claimed before the Strasbourg Court that her detention had amounted “to torture or to inhuman or degrading treatment or punishment”. The Government objected that she had not exhausted all the remedies provided by Maltese law.

The Court decided this rule “must be applied with some degree of flexibility and without excessive formalism” and that the delay in proceedings before the Constitutional Court made domestic remedies ineffective.

Suso Mula, “allegedly” a Sierra Leone national, had “entered Malta in an irregular manner by boat”. He was condemned by Maltese courts for taking part in a riot in the Safi detention centre. His application for asylum was turned down. He claimed that the Maltese legal system did not provide him with a speedy and effective remedy against his detention.

The Strasbourg Court held that the Maltese constitutional courts “would have been competent to examine the applicant’s detention” but “constitutional proceedings in Malta are rather cumbersome” and “do not ensure a speedy review of the lawfulness” of his detention.

Everybody knows that courts in Malta and elsewhere are slow. But while an ordinary Maltese citizen has to lump it, a failed asylum seeker staying illegally in Malta has express and direct access to Strasbourg.

In addition, the Strasbourg Court gives an increasingly elastic meaning of “degrading treatment” and relies on the say-so of applicants and their lawyers and allies who have a well-known agenda.

For example, in Ahmed’s case the Court indulges in a longwaffle to conclude that “in view of the above-mentioned circumstances taken as a whole” and “in the light of the applicant’s specific situation, the cumulative effect of the conditions complained of aroused in her feelings of anguish and inferiority capable of possibly breaking” her resistance. How can one possibly prove or disprove such statements?

The quality of the sources cited is also problematic. In the Musa case, they include two Council of Europe bodies that the Maltese government has already debunked – the Committee for the Prevention of Torture (CPT) and the Commissioner for Human Rights. In its reply to the CPT report on its latest visi,t the Maltese Government wrote: “Visits have followed a pattern. Illegal immigrants in detention centres, whether spontaneously or not, go on a riot which is quelled by the forces of law and order. The NGOs, through the media, exaggerate any injuries suffered by the rioting illegal immigrants. Then the CPT says it received information about the incidents. The accounts of and comments on the incidents in the CPT reports are unashamedly biased. They systematically try to minimise the responsibility of the rioting illegal immigrants while maximising the responsibility of the forces of law and order.”

In reply to the Commissioner’s latest report, it wrote: “The Government respects the Commissioner’s independence but regrets his bias. In singling out only one aspect of human rights in Malta – that concerning asylum seekers, refugees and illegal immigrants – he ignores those aspects that affect most closely the Maltese people. Thus he regrettably missed an opportunity to contribute to the further improvement of human rights protection in our country. Furthermore, he makes generous recommendations on improving conditions for refugees, asylum seekers and illegal immigrants without considering the costs of their implementation and without even attempting to assess their political, social and economic impact on Malta.”

The sources used by the Court in the two judgments include also Amnesty International and the International Commission of Jurists, which further indicate an inside job. But what takes thebiscuit is a reference to Jesuit Refugee Service publications in the case of Ahmed, who was represented by two JRS lawyers. Maybe next time the Strasbourg Court should let the lawyers draft the judgment too.

The European Convention on Human Rights is a landmark in the progress of civilisation. The Strasbourg Court should be a beacon of light for all. But it would be a pity if this beacon were placed atop an ivory tower inhabited only by NGOs and their extended families.

The Court’s judgments – even those involving small countries – should be the result of prudence, discretion, objectivity and thoughtful impartiality. Were they to become the by-product of boisterous and rumbustious militancy, they could push the Court onto the slippery slope that would turn it into a kangaroo court for asylum and immigration cases. Nobody wants that.

joseph.licari@gmail.com

Joseph Licari was Malta’s Ambassador to the Council of Europe (1999-2013).

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