I need to set
out an ongoing
concern of mine. The European Court of Human
Rights made a decision that has
robbed non-citizens of their treaty right to a
fair trial for immigration
matters and deportation. That decision was
made in its Maaouia v France
case in 2000. That situation remains in 2020
and it contrasts with the decision
of the Inter-American Court of Human Rights
where all elements of the right to
a fair trial were found to apply.
I always
admired the European
Court. Built into the European Convention on
Human Rights and Freedoms (ECHR),
the Court pioneered giving effect to human
rights for refugees in its cases. It
found that deporting people would violate the
treaty if the right to life would
be put at real risk, or if there was a real
risk of torture or cruel or
degrading treatment or punishment, or if
family separation would be a
disproportionate consequence. The European
Court used the treaty obligation of
the country to provide the non-citizen facing
deportation with an effective
remedy to require an independent rigorous
scrutiny of the information before a
deportation with a potential for subsequent
torture – even when a state invoked
national security. Yet in the Maaouia
case the European Court found that
a restricted and more limited deportation
hearing set out in a later Protocol 7
to the ECHR had replaced the right to a fair
trial for non-citizens in
immigration matters.
I looked into
the details of the Maaouia
case decision. The circumstances are
informative about immigration proceedings
and their impact on non-citizens. Maaouia was
convicted of armed robbery
committed in 1985, he served a sentence and
was released in 1990. In September
1992 he married a disabled French citizen with
whom he had lived since 1983.
When he went to regularize his status in
October 1992, he discovered that in
1991 a deportation order had been made against
him without his being told. He
refused to leave. In November 1992 he was
sentenced to 1 year in prison and an
order excluding him from French territory for
10 years was made. In December
1992 he applied for judicial review of the
deportation order.
In 1993 he
appealed the exclusion
but was told he should have appealed the
deportation order, not the exclusion.
In 1994, he asked for a review of the 10-year
exclusion order, but his
application was dismissed. Then in 1994, after
the year in jail for not leaving
the country, the decision on the 1992 judicial
review of the 1991 deportation arrived.
The deportation order was quashed because it
had been improperly issued.
However, the
jail time had been
spent and the exclusion order remained.
Maaouia then sought to remove the
exclusion order. In 1995 he reminded the
office of his request for removal of
the exclusion order. In 1997 he was told his
case would be heard in 1998. In
late 1999 he was given a 10-year residence
permit. Meanwhile, he had opened a
European Court of Human Rights case in which
he complained that the 1994-1998
time required to hear his case was
unreasonable and contrary to ECHR Art. 6.1,
the right to fair trial in a reasonable time.
There is
important background here.
The European Court had made judgements on a
large body of complaints from
citizens in different countries concerning the
length of time needed to get the
promised Article 6 fair trial that requires
“in a reasonable time.” The right
to fair trial applies to civil rights and
criminal cases. In French law, the 1
year in prison and the exclusion order are a
criminal matter. A year in jail
and exclusion from entry into France for 10
years seems the kind of penalty
that would normally be considered criminal.
The process that Maaouia
experienced is a poster case for why
non-citizens should enjoy their right to a
fair trial (in a reasonable time) when
subjected to laws with penalty outcomes
in which they are vulnerable – like
proceedings linked to deportation.
In this
Maaouia case, the Court
found that the ECHR Art. 6.1 right to fair
trial in a reasonable time did not apply
to immigration proceedings. This had been a
position that the European
Commission on Human Rights had found since the
early days of the ECHR. Within
that decision, the Court determined that
immigration matters are not criminal
matters whether the country calls them that or
not. So there was no crime trial
and no requiring the right to a fair trial on
that account.
The rest of
the decision is equally
unconvincing. Additional protocols to human
rights treaties do not remove
rights. I looked at the origins of the right
to fair trial and the drafting
history of the European Convention right. The
intent going back to the
Universal Declaration of Human Rights was a
fair trial to adjudicate a right –
certainly in the words of the ECHR text it
should apply to a “civil right” like
the rights in the ECHR. The right to
protection from torture or protection of
family life or the right to asylum by way of
recognizing refugee status have
all been litigated by non-citizens before the
European Court of Human Rights.
The fair trial is to include a hearing before
an independent and impartial
court or tribunal in a reasonable time. And an
obvious reason why Maaouia
refused to leave France was that he had
married. The right to family life
should have protected him from deportation
under the ECHR that France had
ratified. So, in France, Maaouia had a year in
jail and a lot of hassles to get
the right to remain that his right to family
life called for. The right to a
fair trial should have applied in France on
that account. The European Court
determined that the right to family life was
not relevant in this case. The
case was limited to the right to fair trial in
an immigration matter.
I found from a
classic textbook on
the case law of the European Court (Van Dijk
et al,
Theory and Practice of the European
Convention on Human Rights, 5th
Ed., Intersentia, 2018) that the
Court had made an expansive use of the right
to a fair trial for a whole range
of issues other than civil rights or criminal
law that applied to citizen
social groups – like adjudicating military
pensions. The approach to
non-citizens that the right did not apply to
immigration matters that affect
them wasn’t the normal pattern that the Court
had followed for that right. The
decision was more than an error. It was a
discriminatory move against
non-citizens and their right to fair trial in
immigration matters with no
convincing rationale.
In contrast,
two dissenting judges
make convincing arguments after the majority
decision in the case. An
author (Nick Armstrong 18 Judicial Review
177, 2013) subsequently concluded that the
decision was wrong and led to
difficulties in the application of the
European Convention for legal aid in the
UK. Another pair of authors (Ian Bryan and
Peter Langford, 79 Nordic Journal of
International Law 457, 2010) showed the Maaouia
decision led to inconsistencies
within the Court’s case law.
In a UN report
on the human rights
of non-citizens that appeared in 2003, after
the 2000 Maaouia decision,
non-citizens were described as among the most
disadvantaged groups with respect
to human rights. That report called for equal
treatment of citizens and
non-citizens to the extent possible. This was
only the second UN report on the
human rights of non-citizens. The first report
was by Baroness Elles in 1980.
She expressed concern for ensuring
non-citizens rights and her report
recommended an attached Declaration on rights
for non-citizens. Her Draft
Declaration contained provision for a routine
deportation hearing for any
non-citizen that could only be waived for
compelling reasons of national
security. Her concern appears to be ensuring
some formal administrative process
in deportation. She explicitly did not aim to
take away any other rights – and
that would include a treaty right to a fair
trial. But that now 40-year-old
Declaration remains a draft.
The right to a
fair trial by an
independent and impartial tribunal is
different from other proposals like
Baroness Elles’ deportation hearing. The right
to fair trial is not constrained
by national security or illegal presence and
it requires an oral hearing by an
independent and impartial tribunal.
After the 2003
UN Report, it would
be expected that the vulnerability of
non-citizens to deportation would be
particularly clear, that all available
measures to reduce potential rights
violations in deportation would be used by
human rights treaty bodies, and that
an unrestricted right to a fair trial would be
given effect for non-citizens in
this vulnerable situation. But that has not
happened at the European Court so
far.
Other treaty
bodies have found
differently from the European Court. The
Inter-American Commission on Human
Rights in Mortlock v US, 2008, and in
Report on Immigration in the
United States – Detention and Due Process,
2010, and the Inter-American Court
of Human Rights in Pacheco Tineao v Bolivia,
2013, found that all
elements of the American Convention right to a
fair trial applied in
immigration matters that could lead to
deportation - and more elements as
needed – such as the right to a translator. In
Mortlock 2008, the
Commission argued that it would render the
right to a fair trial meaningless if
the elements of the right, even those normally
associated with a criminal
trial, did not apply to immigration matters
and in deportation. As Dame Elles
implied, deportation is an area of special
significance for non-citizens
calling for special measures.
The African
Commission on human and
peoples’ rights has maintained consistently
that the guarantees of due
process must be applied in the context of
proceedings on the expulsion of
migrants and refugees (Cf., inter
alia,
African
Commission on Human and Peoples’ Rights:
Communication 313/05 – Kenneth
Good
v. Botswana, 47th ordinary session, 12
to 26 May 2010, paras. 160-180;
...)
I am convinced
that the
Inter-American approach is the correct one for
a human rights instrument. It
takes into account the vulnerability of
non-citizens. It recognizes their
particular need for fair trial rights in the
immigration law area. It was the
intent of the Universal Declaration right to a
fair trial and it is consistent
with the various human rights treaties that
were built from that Declaration.
This is the approach that should have been
applied by the European Court of
Human Rights.
But for those
reader that need them
let me give more details of the thinking on
this.
The Universal
Declaration included
everyone – citizens and non-citizens. These
are the promises from which the
European Convention on Human Rights and
Freedoms the UN Covenant on Civil and
Political Rights and the American Convention
on Human Rights all claim that
they sprang. Universal Declaration Article 10
provides:
“Everyone
is entitled in full equality to a fair and
public hearing by an independent and
impartial tribunal, in the determination of
his rights and obligations and of
any criminal charge against him.”
This hearing
is for any right.
Nothing different applies to a criminal
charge. Clearly this applies when
determining the rights in the Universal
Declaration such as those relevant for
some non-citizens like Article 14, the right
to asylum or the right to work or
the right to protection from torture that
could be a consequence of a
deportation.
The Council of
Europe produced a
European Convention on Human Rights and
Freedoms in 1950 that involved civil
rights. The UN produced the 1951 Convention
relating to the status of refugees
that acts as a form of agreement around asylum
for non-citizens.
The European
Convention contains a
right to a fair trial for everyone in Article
6:
1. In the
determination of his
civil rights and obligations or of any
criminal charge
against him, everyone is
entitled to a fair and public hearing within a
reasonable time by an
independent and impartial tribunal established
by law. Judgment shall be
pronounced publicly but the press and public
may be excluded from all or part
of the trial in the interests 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 to
the extent strictly necessary in
the opinion of the court in special
circumstances where publicity would
prejudice the interests of justice.
2 Everyone
charged with a criminal offence
shall be presumed innocent
until proved
guilty according to law.
3 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 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.
Compared
with the Universal Declaration, this right to
a fair trial is restricted to
civil rights by name and because that is the
subject matter of the ECHR. This
would cover at least the rights in the ECHR.
But the right to asylum in the
form of the 1951 Convention relating to the
status of refugees is surely also a
civil right. So in the ordinary meaning of the
words, when the right to torture
or cruel or inhuman treatment or when the
right to family life are adjudicated
in deportation or when a form of right to
asylum as in the 1951 Convention is
adjudicated, this right to fair trial should
apply. The Inter-American
Commission on human rights has acknowledged
this to be the case.
Moreover,
the European Convention specifies in Article
53:
Nothing in
this Convention shall be
construed as limiting or derogating from any of
the human rights and fundamental
freedoms which may be ensured under the laws
of any High Contracting Party or
under any other agreement to which it is a
Party.
This
is normal. It means that additions to this
treaty cannot remove any of the
rights and freedoms that are already in it and
which a state has already
entered into by ratifying it. Additions have
arrived as Protocols, but by
Article 53 no signatory could ratify any
Protocol that did not maintain the
rights in the treaty that they had ratified,
including the right to a fair
trial for everyone. Yet in its Maaouia
2000 decision the European Court
argued, with no hard evidence, that states had
decided to replace the right to
a fair trial in the original treaty with a
restricted deportation hearing in an
additional Protocol 7. As Van Dijk et al
said in their book on the European Convention
cited above:
It is not
self-evident, to put it
mildly, that for the interpretation of a
provision of the Convention,
conclusions may be drawn from an instrument
which was adopted more than thirty
years later and has not yet been ratified by
all the States parties to the
Convention.(5th Ed, 2018, p.518.)
Treaties
are supposed to be interpreted by the ordinary
meaning of the words in their
treaty context. Beyond that, the preparatory
work may be used for interpretation.
The preparatory work on the European
Convention right to a fair trial is
available. I find nothing in the preparatory
work other than an attempt to
follow the intent of the Universal Declaration
right – a fair trial for
determining a right or obligation. The central
part of that is an independent
and impartial tribunal provided in law. The
intent does not seem restrictive –
merely to give treaty effect to the Universal
Declaration Article 10 – a fair
trial for a right or obligation. And the
dissenting judges in the Maaouia case
argue:
[T]he word
“civil” when examined in
the context in which it appears, [ECHR Art.6]
has the meaning of
“non-criminal”. … [T]he words “civil rights
and obligations” should be given
the broadest possible meaning which, in
accordance with their context and in
the light of the object and purpose of the
Convention should extend to all
legal rights and obligations of the individual
whether vis à vis other
individuals or vis à vis the State.
The special
provisions under
Article 1 of Protocol No. 7 furnish additional
special protection for the
persons liable to be expelled. The wording and
purpose of these provisions
clearly refer to procedural guarantees vis à
vis the administrative authorities
which do not in any way affect any judicial
guarantees that such persons may
already have under the Convention.
Moreover,
there is nothing to suggest why the provisions
added for the case of the
criminal charge should not equally be applied,
as necessary, for the
determination of a right or obligation such as
civil rights at issue in a
deportation hearing of a non-citizen or indeed
for other immigration matters.
That is the view that the Inter-American
Commission and Court of Human Rights
adopted in their jurisprudence. The European
Court of Human Rights Maaouia
decision is wrong.
Since
the Court has adopted an expansive application
of the right to a fair trial for
a range of issues involving citizens, the
ruling against the application of the
right to non-citizens in immigration
proceedings and deportation where they are
particularly vulnerable is discriminatory.
Similarly, when citizens have
enjoyed the right to a fair trial in a
reasonable time, the failure to grant
the right in a reasonable time in the case of
a non-citizen was discriminatory.
To
leave this 2000 position in place after a 2003
UN report finding that non-citizens
are a particularly vulnerable group with
respect to human rights is
discrimination; and after the jurisprudence
from the Inter-American Commission
and Court of Human Rights it is extraordinary.
Does
it matter? Has the European Court given
guidance on due process in deportation
by findings on the right to an effective
remedy like its impressive MSS vs
Belgium and Greece? Yes, it matters.
Look at the Maaouia story in the case
decision. A lot goes on in “immigration”
proceedings that can put someone in
jail for a year, bar him from the country for
a decade and keep him trying to
regularize his residence with his wife for 7
years. This is not deportation
with probability of torture and the court said
family life was not at issue.
Whatever right is or is not at issue in a
deportation, non-citizens need that
right to a fair trial in a reasonable time.
Moreover, a shifting list of
suggestions for an effective remedy over a
number of deportation cases does not
add up to the right to a fair trial.
I
concede that in times past the use of the
right to an effective remedy by the
European Court may have been a strategy to
more painlessly persuade ECHR
signatories to improve their due process in
deportation proceedings. That work
has been done. In any event the right to fair
trial in immigration matters
remained on the books for non-citizens until
2000. Exile used to be the
ultimate penalty for a citizen. Now exile is
banned for the citizen. Deportation
remains for non-citizens and it is a serious
penalty. Surely a non-citizen
should not face deportation without the treaty
fair trial.