Paper circulates plan to halt ECtHR ‘overreach’
A Belgian legal expert has said that European governments should nominate more conservative judges and revise key asylum rules.
Marc Bossuyt is former president of Belgium’s Constitutional Court and Commissioner General for Refugees for nine years.
His 10 August opinion paper, which discusses the possibility of ECtHR overreach, was written at the request of the office of Belgian Prime Minister Bart De Wever, the London Times reported (20 September).
'Quietly circulate'
The newspaper reports that the Belgian PM wanted to quietly circulate the confidential paper among European leaders, and set out a plan to end the court’s role as a barrier to effective border and asylum policies.
Last week, Belgian officials sent the opinion paper to governments, including in Germany, the Netherlands and Greece, as well as some other countries that earlier this year accused the European Court of Human Rights of overreach.
In May, an open letter challenging the ECtHR was drafted by Italy and Denmark, and signed by Austria, Belgium, Czech Republic, Estonia, Latvia, Lithuania, Poland, and Hungary.
The letter said that the ECtHR in Strasbourg in recent rulings was leaning too much toward individual rights at the expense of national security.
The letter said that Strasbourg court had “limited our ability to make political decisions in our own democracies” by creating barriers to fighting illegal migration.
a “new and open-minded conversation” about how the European Court of Human Rights interprets the European Convention on Human Rights.
Alain Berset, secretary general of the Council of Europe, that “debate is healthy, but politicising the court is not.
“In a society governed by the rule of law, no judiciary should face political pressure. Institutions that protect fundamental rights cannot bend to political cycles.”
Bossuyt wrote in his paper, however, that states should not be deterred from questioning judgments on the grounds that doing so threatens the rule of law.
“States are the ultimate masters of the treaties they are parties to, and governments are their representatives,” he said.
Derailing of deportation
The London Times reports diplomatic sources as saying that a wider group of countries, including France and Germany, is engaged in finding ways to stop the derailing of the deportation of failed asylum-seekers, and those who have committed crimes.
Bossuyt’s paper argues that one step would be to nominate judges to the Strasbourg court who favour judicial restraint over those who, in his opinion, advocate “activist interpretations” of human-rights law.
The former chair of the UN Commission on Human Rights suggested that governments should appoint “better candidates” to the bench of the court.
“National judges known for their judicial restraint should be given preference over academics,” he said.
He said that governments should intervene collectively to make judges aware of the importance attached to the “issues at stake”.
Bossuyt also urged governments to push for amendments to the convention, EU asylum regulations, or the Schengen Agreement on freedom of movement, rather than attempting to influence court precedents directly.
Catalogue rulings
He encouraged states to catalogue rulings that have complicated returns policy under existing rules.
Few judges, he wrote, had been elected with personal experience of asylum procedures.
Bossuyt particularly criticises the case law surrounding article three of the human-rights convention: “the prohibition of torture, inhuman, or degrading treatment or punishment.”
Article three case law is being used in British challenges to the deportation of migrants to France on the grounds their safety will be endangered.
“Britain is considered responsible for what will happen to these people sent to this horrible country called France. In my opinion, that is going too far,” he said.
“A crucial question is whether the obligation to take care of asylum seekers has the same absolute character as to what was originally intended by the prohibition of torture,” he wrote in the document.
“A lack of decent reception for asylum seekers is clearly not of the same order as whipping. In none of the EU member states, there is a real risk that asylum-seekers will be whipped.”
Governments should not be held responsible for the treatment of migrants once they are transferred to another EU country, Bossuyt states.
He said that planned European Commission measures to speed up the removal of rejected asylum seekers were critical to restoring what he described as a proper balance between humanitarian obligations and controlled borders.
Open to involvement
Bossuyt told news site Euractiv that he did not know how his opinion paper would be used, but made clear that he was open to future involvement on such issues.
“It’s the first time, I must confess, that a high politician really relied on my writings,” he said.
“For many, many years, I had the impression I was preaching in the desert. Now more and more people are joining me in the desert.”
A spokesman for the ECtHR said it had no comment on the matter.