THE VALUE OF THE EUROPEAN COURT OF HUMAN RIGHTS

The European Court of Human Rights (ECtHR) is a supranational or international court established by the European Convention on Human Rights (EHCR). The Court is based in Strasbourg, France.

The ECHR provides European nationals, and others, a forum that transcends national court authority for adjudication of issues in instances where they believe their human rights, as guaranteed by the European Convention on Human Rights have been violated. 

An application can be lodged by an individual, a group of individuals, or one or more of the other contracting states. The Convention was adopted within the context of the Council of Europe, and all of its 47 member states are contracting parties to the Convention.  

A Value at the Individual Level

The individual justice model utilized by the ECtHR enables victims, once domestic remedies have been exhausted, to bring their application to the ECtHR to argue that their state has breached their rights under the ECHR.

Generally, nation states have been the final arbiters of most issues affecting their citizenry within their borders.

By treaty, the signatory nations of Europe have granted the ECtHR binding authority to decide cases affecting their citizenry and other persons subject to their authority.

In instances where state law is found inconsistent with an ECHR judgment, the nation at issue is obliged to amend its national law to comport with the ECtHR decision.

The following case illustrates the concept of what is increasingly being referred to as an evolving European supranational identity.

The facts

In February 2018, the Court ruled in a case known as M.A. v. France (application no. 12148/18)

The case concerned an Algerian national, born in 1985 who had settled in France in 2008 and obtained a 10-year residence permit.

In September 2015 he was sentenced by the Paris Criminal Court to a six-year prison term for his participation in a criminal conspiracy to commit an act of terrorism, together with an order of permanent exclusion from France.

The judgment indicated that the applicant had been, at least in 2012, wanted by the Algerian authorities.

Accordingly, he was notified in February 2018 of an order issued by the Prefect of the Loire district, indicating that he was to be deported to Algeria.

 But on 5 March 2018, A.M. lodged an application for urgent proceedings with the Lyons Administrative Court to obtain the immediate suspension of his deportation to Algeria.

However, the judge rejected his application on the ground that he had not produced any specific, recent or detailed evidence to show clearly that he would be exposed, in Algeria, to treatment prohibited by Article 3 of the Convention which bans the use of torture and inhuman or degrading treatment.

Under Articles 43 and 44 of the Convention, this Chamber judgment is not final. During the three-month period following its delivery, any party may request that the case be referred to the Grand Chamber of the Court. If such a request is made, a panel of five judges considers whether the case deserves further examination. In that event, the Grand Chamber will hear the case and deliver a final judgment. If the referral request is refused, the Chamber judgment will become final on that day.

Therefore on 12 March 2018, A.M sought the indication of an interim measure by the European Court of Human Rights, under Rule 39, to have his deportation to Algeria suspended.

On 13 March 2018 the Court granted his request and instructed the Government not to enforce the measure until the end of the proceedings before it.

Finally, Judgment was given by a Chamber of seven judges.

The Court observed that since 2015 there had been many institutional and legislative developments in Algeria. It took note in particular of the revision of the Algerian Constitution in 2016 and the better safeguarding of a certain number of fundamental rights and freedoms.

That same year the Intelligence and Security Department (DRS) was disbanded.

It had been designated in 2008 by the United Nations Committee against Torture as potentially being responsible for many cases of cruel, inhuman or degrading treatment.

The Court further observed that, since 2016, the Directorate General of National Security (DGSN) had regularly organized human rights training for police officers.

The Court found that most of the reports available on Algeria for 2017 and 2018 no longer mentioned any allegations that individuals linked to terrorism had been tortured.

The Court emphasized, on this point, that A.M. did not seem to be able to establish that any third party in a situation comparable to his own had actually been subjected to inhuman or degrading treatment in 2017 or 2018.

The Court further observed that the French Government had provided it with a detailed list of deportations to Algeria that had been ordered and implemented against Algerian nationals on account of their links to terrorist or radical Islamist factions.

None of those deportees had reported ill-treatment on the part of the Algerian authorities.

The Court also found noteworthy the fact that a number of domestic courts of Council of Europe member States, after an in-depth examination of the general situation in Algeria and the individual situations of those concerned, had recently concluded that there would be no violation of Article 3 of the Convention in the event of the return to that country of individuals linked to terrorism.

While certain features of Algerian criminal procedure could possibly raise doubts as to the guarantee in that country of the right to a fair trial, they did not in themselves show that there was a general risk of ill-treatment under Article 3 for any given category of individuals.

The Court concluded that the general situation as regards individuals linked to terrorism in Algeria did not, in itself, preclude the applicant’s deportation.

It took the view that there were no series or proven grounds to believe that if he were returned to Algeria the applicant would run a real risk of being subjected to treatment in breach of Article 3 of the Convention.  In conclusion, the Court went on to find, unanimously, that there would be no violation of Article 3 if the decision to deport the applicant to Algeria were implemented


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