“The Strasbourg Human Rights Court has contributed to asylum chaos” – Former Belgian Constitutional Court President

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The European Court of Human Rights in Strasbourg (Copyright: By CherryX - Own work, CC BY-SA 3.0, https://en.wikipedia.org/w/index.php?curid=38007603 )

Em. Prof. Dr. Marc Bossuyt (University of Antwerp) is the former President of the Belgian Constitutional Court and former Belgian Commissioner General for Refugees. In 2023, he published the book “Right of asylum: between demagoguery and hypocrisy“. As Belgium’s leading asylum expert, he has taken a critical stance towards the jurisprudence of the European Court of Human Rights in asylum cases for years.

In the following interview, he comments the letter sent by nine EU leaders calling for a reinterpretation of the European Convention on Human Rights. They thereby urge the judges at the Strasbourg-based organisation to provide them with “more room” to “decide on when to expel criminal foreign nationals” and “more freedom” to track “criminal foreigners who cannot be deported.” They also say they “need to be able to take effective steps” against “hostile states” that are “instrumentalizing migrants.”

The nine EU leaders thereby accuse the Strasbourg Court of stretching the original scope and intentions of the European Convention too far, pointing out that “the world has changed fundamentally since many of our ideas were conceived. (…) We now live in a globalized world where people migrate across borders on a completely different scale. (…) We believe that the development in the court’s interpretation has, in some cases, limited our ability to make political decisions in our own democracies.”

The group of EU leaders authoring the letter — which includes the leaders of Italy, Denmark, Austria, Latvia, Lithuania, Poland, Belgium, Estonia and the Czech Republic — spans the width of Europe’s political spectrum, from S&D to ECR.  

 

Q: Fifteen professors responded in De Standaard and Le Soir, accusing the government leaders involved of painting a ‘repulsive caricature of European justice.’ Do they have a point?

Marc Bossuyt: ‘In my opinion, no. In their very nuanced letter, the politicians concerned demonstrate their commitment to a rules-based international order. The professors themselves also indicate that it is perfectly acceptable for states to engage in dialogue with the European Court of Human Rights and to express their dissatisfaction with the direction taken by the courts. But how politicians should do that, we can only guess.‘

’The professors also accuse the politicians of ‘pure disinformation’ with this letter. I dare to doubt that. I myself have been writing for fifteen years that the Strasbourg judges are on thin ice with their ‘dynamic interpretation’ of asylum law, without paying too much attention to what the states wanted when they became parties to the European Convention on Human Rights (ECHR).’

‘As early as 2011, the Committee of Ministers of the Council of Europe pointed out that the Court is not an appeal body for migration issues, nor is it a court of fourth instance. However, we must now conclude that, with its provisional measures, the Court is indeed interfering in the day-to-day management of asylum and migration policy.’

Q: Could you clarify this?

Marc Bossuyt: ‘By granting extraterritorial scope to Article 3 of the ECHR, the prohibition of torture, the Court holds the contracting parties – i.e. countries – responsible for the way in which other countries might treat expelled foreigners. Of course, no one may be expelled to a country where it is certain that they will be tortured. The question is, however, whether the Court is entitled to rule on this before a possible expulsion. In other words, is it not primarily up to the country concerned to assess that risk in advance?

‘In 2012, for example, the Court ruled that Belgium had violated the prohibition of torture because it had expelled an Iraqi who had been convicted of terrorism in Belgium to Kurdistan. However, there was no evidence that the man was mistreated upon his return. That same year, the then British Prime Minister Cameron also expressed his frustration with the Court’s activism. ‘There are circumstances in which we cannot sentence, detain or deport someone who does not have the right to live in our country and whom we are convinced wants to harm our country. We must find a solution to this together.’

Q: Why did Cameron react so strongly at the time?

Marc Bossuyt: The Court in Strasbourg had decided that the British deportation of terrorist Othman Abu Quatada – on the basis of a memorandum with the Jordanian government – did not violate Article 3 of the ECHR. But at the same time, it decided to grant extraterritorial effect to Article 6 of the ECHR – the right to a fair trial. It argued that there was a risk that evidence obtained through torture would be used during the trial of the terrorist in question. During the pro-Brexit campaign, one of the strong arguments put forward by the Brexiteers was that the European Court of Justice – the Court of Strasbourg was then confused with the Court of Luxembourg – was preventing the extradition of terrorists.

Q: You also pointed out earlier the important role played by certain judgments of the Court in Strasbourg in the major European asylum crisis of 2015.

Marc Bossuyt: ‘Indeed. I firmly believe that the combination of the M.S.S. ruling in 2011, which undermined the European Dublin Regulation, and the Hirsi Jamaa ruling in 2012, which opened the floodgates to migrants trying to reach Europe by sea, led to the asylum chaos of 2015. In my opinion, these rulings contributed even more to this than the Syrian civil war and Angela Merkel’s subsequent ‘Wir schaffen das’ policy.

‘Several other problematic rulings followed. In 2016, for example, there was the Paposhvili case. This concerned a Georgian who had been living illegally in our country for 17.5 years, after which the Court obliged the contracting parties and our country to provide a procedure for medical asylum.

‘In 2021, in the Savran judgment, the Court ruled that although the man’s expulsion would not violate the prohibition of torture, it would violate Article 8 of the ECHR, which guarantees the right to family life. Savran was a paranoid schizophrenic Turkish man who had been found guilty of assault resulting in the death of a man. Six judges in the minority spoke of an unfortunate evolution of case law, offering increasing protection to persons who have committed serious criminal offences.

Q: In your book Between Demagoguery and Hypocrisy, you also warned that the current asylum model exposes the EU to blackmail by a number of countries at its external borders. Does the case law of the Strasbourg Court contribute to this?

Marc Bossuyt: ‘I was referring specifically to the fact that our asylum model also exposes us to possible blackmail by, say, Italy by Libya, Spain by Morocco or Greece by Turkey. The EU must not condemn itself to such blackmail. It is high time that European public opinion, European politicians and, therefore, European judges realised this.’

‘Rather than reacting with “dismay” to the letter from De Wever, Meloni and co, the friends of the European Court of Human Rights should reflect on how that Court can continue to enjoy the trust of the people and governments of the 47 countries concerned. After all, the Court plays an important role as the guardian of human rights. It would be a mistake to think that those who did not sign the letter from the European presidents and heads of government do not share the concerns of those who did.

This interview was originally published by Flemish magazine Doorbraak and has been translated.

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