How to use the European Court of Human Rights in Refugee and Asylum cases or Related Violations

1. Making an individual application alleging a violation of human rights
2. Requesting interim measures to be taken to prevent irreparable harm.

1. Making an individual application alleging a violation of human rights

The European Court of Human Rights enforces the rights guaranteed in the European Convention on Human Rights (ECHR) and its Protocols.

a. Who can make an application to the Court?

‘Any person, non-governmental organisation or group of individual claiming to be the victim of a violation’ of human rights can make an application to the Court (article 34 ECHR). This includes any person who risks suffering from a future violation (Soering v United Kingdom).

b. What human rights can the Court protect?

An application to the Court must allege a violation of any right protected by the European Convention on Human Rights and its Protocols.

 Examples of rights protected by the Convention include:

-Right to life
-Prohibition of torture, inhuman or degrading treatment. This includes returning a person to a country where he or she would face such treatment (Chahal v United Kingdom)
-Right to liberty
-Right to a fair trial
-Right to private life
-Freedom of religion
-Freedom of expression
-Freedom of association and assembly
-Right to an effective remedy
-Non-discrimination
-Prohibition of collective expulsions

c. What rules must be observed before an application can be made?

• Exhaustion of domestic remedies

An individual should first seek protection from the national courts. The European Court of Human Rights should only intervene when all possible means for protection in the host country have been exhausted (article 35(1) ECHR).

However, this rule is applied flexibility (Ringeisen v Austria). As a result, an individual is not required to bring their claim up to the highest national court if the remedies are not effective, for instance, if the host country’s authorities show complete indifference to his claim (Selmouni v France).

• 6-month time-limit

An application must be submitted to the Court within 6 months from the date of the decision challenged. However, if the application concerns an ongoing violation against which there is no remedy, such as detention, the rule is not strictly applied (Akdivar v Turkey).

• Serious disadvantage

An application is rejected if the individual has not suffered a ‘serious disadvantage’ (article 35(3)(b) Protocol 14 ECHR). This condition is usually satisfied in refugee and asylum cases.

• Anonymous or abusive applications (article 35(2) ECHR).

The Court does not admit applications that are:
-Anonymous
-Repetitive (exactly the same as a previous application)
-Manifestly ill-founded or abusive

2. Requesting interim measures be taken to prevent ‘irreparable harm’

The Court can indicate provisional (interim) measures which the State is obliged to follow (Rule 39 of the Rules of the Court). These urgent measures will be ordered by the Court when there is an ‘imminent risk of irreparable harm.’

An expulsion or extradition decision qualifies as an imminent risk of irreparable harm. Accordingly, interim measures are used very frequently in cases concerning refugees and asylum seekers to prevent expulsion or extradition orders taken by a State (see for example Abdollahi v Turkey).

It is important to know that the Court cannot:
– consider a case against a State that is not a party to the ECHR (click here for the 47 State Parties to the ECHR)
– undertake immigration procedures, or process the granting of visas or political asylum.

Click here for more information on the rules for making an application to the Court.

Written by Minos Mouzourakis (minosmouzourakis@gmail.com)