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The Right to a Fair Trial in Immigration Law: A European Perspective

JURIST Guest Columnist Stefan Kirchner of HumanRightsLawyer.eu, a European human rights firm, says the only way for immigrants to the EU to be given equal protection of the law is to grant them the right to a fair trial under the European Convention on Human Rights...

Immigrants are in special need of legal protection since they are usually not well versed in the laws of their host country. While Article 6 § 1 of the European Convention on Human Rights protects the right to a fair trial in general, in 2000, the European Court of Human Rights (ECHR) in Maaouia v. France held that Article 6 of the convention must be interpreted:

in the light of the entire Convention system, including the Protocols. In that connection, the Court notes that Article 1 of Protocol No. 7, ... which ... contains procedural guarantees applicable to the expulsion of aliens. In addition, the Court observes that the preamble to that instrument refers to the need to take ... further steps to ensure the collective enforcement of certain rights and freedoms by means of the Convention ... Taken together, those provisions show that the States were aware that Article 6 § 1 did not apply to procedures for the expulsion of aliens and wished to take special measures in that sphere. That construction is supported by the explanatory report on Protocol No. 7 in the section dealing with Article 1 [of Protocol No. 7].
This view is further supported by the decision of the former European Commission of Human Rights in Agee v. the United Kingdom [PDF] in which it held that deportation proceedings are not covered by Article 6 of the convention. In Agee, the commission concentrated on the criminal law aspects of Article 6 § 1, although the term "civil rights" in Article 6 § 1 should be interpreted in accordance with the common meaning the term has usually, in line with Article 31 § 1 of the Vienna Convention on the Law of Treaties [PDF], the principles of which apply to the interpretation of the convention. The convention may be a self-contained regime under international law, but it is not so far removed from the main body of public international law that common rules of interpretation would no longer apply. To the contrary, the fact that 47 states already have ratified the convention highlights the need to take recourse to commonly accepted methods of interpretation, among the best established of which is the principle to interpret a text in accordance with its ordinary meaning.

Civil rights are not just rights under civil law (as opposed to criminal law), but human rights—and as such they are also at issue in immigration law cases. Ruling on a foreigner's residence status is sometimes a criminal law matter—but it is still comparable to the foreigner's "civil rights." The term "civil rights" has to be understood widely as to comprise not only rights under civil law, but also rights held, or at least claimed, vis-à-vis the state. Rights under public law, including immigration law, therefore have to be considered "civil rights" within the meaning of Article 6 § 1. A more narrow interpretation would be incompatible with the ratio legis, or underlying principles, of Article 6 § 1. If one were to exclude public law rights from the scope of Article 6 § 1, the door would be open wide for state parties to the convention to circumvent their obligations under Article 6 § 1 by simply declaring a matter of "civil rights" to fall outside the realm of the norm. This would allow states to define their obligations under the convention on their own terms, potentially even on a case-by-case basis. This would amount to an abuse which would be incompatible with general principles of international law, which need to be taken into account by the ECHR.

If the protection afforded by the convention is to be effective, the rights covered by Article 6 § 1 also have to include the rights of immigrants towards the host state. Although the ECHR often takes the case law of its predecessor into account, it is not necessarily bound by the Agee decision in the same way common law courts are bound under the doctrine of stare decisis. It is therefore possible for the ECHR to rule differently than the commission—were it not for Article 1 of Protocol No. 7. In Maaouia, the ECHR concluded that Article 1 of Protocol No. 7 prevents the application of Article 6 § 1 to immigration cases.

It has to be noted, however, that not all states which are parties to the convention have ratified Protocol No. 7. Germany, the Netherlands, Belgium, the UK and Turkey, countries which are major immigration destinations, have not ratified Protocol No. 7. Meanwhile, for example, Spain and Italy, both of which are dealing with a large number of refugees from Africa, have done so. Those five nonratifying states therefore cannot claim that Article 1 of Protocol No. 7 limits the rights of immigrants. Also, Article 14 of the convention prevents discrimination based on national origin. This not only constitutes a subjective right of the applicant, but a general principle of the convention's human rights law. Therefore immigrants must be given the fair trial guarantees which in other cases would be afforded in other proceedings. The only way to achieve this equal protection would be by granting the immigrants the right to a fair trial under Article 6 § 1.

The ECHR has only ruled on cases involving states which have ratified Protocol No. 7, which explains why its jurisprudence has consistently indicated that Article 6 of the convention would not apply to immigration cases. This could not be the case with regard to those states which have not ratified Protocol No. 7. Only Protocol No. 7 can provide a legal basis for finding that the convention does not provide protections in immigration cases. Currently, an immigrant does not have a right to fair trial under Article 6 § 1 if Protocol No. 7 applies. There is nothing to indicate that immigration cases never fall under Article 6 § 1, and immigrants must have a right to fair trial under this provision in those countries that have not ratified Protocol No. 7.

Consequently, Article 6 § 1 has to be considered applicable to immigration law cases in Germany, the Netherlands, Belgium, the UK and Turkey. A case against the Netherlands which is currently pending before the ECHR will give the court the opportunity to clarify this matter.

Stefan Kirchner is a human rights lawyer and has been admitted to practice law in Germany. He holds a course diploma in international humanitarian law, issued jointly by the University of Bochum, the German Red Cross and the International Committee of the Red Cross, for research on the enforcement of international humanitarian law in asymmetric conflicts. He also holds a diploma in international iaw, with distinction, from the University of Helsinki.

Suggested citation: Stefan Kirchner, The Right to a Fair Trial in Immigration Law: A European Perspective, JURIST - Sidebar, Aug. 9, 2011, http://jurist.org/sidebar/2011/08/stefan-kirchner-echr-immigration.php.

This article was prepared for publication by Jonathan Cohen, the head of JURIST's academic commentary service. Please direct any questions or comments to him at academiccommentary@jurist.org

Opinions expressed in JURIST Commentary are the sole responsibility of the author and do not necessarily reflect the views of JURIST's editors, staff, donors or the University of Pittsburgh.

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