Blog post by Prof Eva Brems and Prof Ellen Desmet, Ghent University
Introduction
The procedure before the European Court of Human Rights (ECtHR) offers a direct way through which scholars can bring their research to the attention of the Court in the course of its deliberations on a particular case: the third-party intervention (TPI). Based on article 36 of the European Convention on Human Rights (ECHR) and article 44 of the Rules of Court, ‘any person concerned’ can request leave to intervene in a pending case, ‘not later than twelve weeks after the publication on the Court’s case-law database, HUDOC, of the information that notice of the application has been given to the respondent Contracting Party’.
The letter granting leave to intervene sets a deadline for the intervention and specifies that the maximum length of the intervention is 10 pages and that ‘these submissions should not include any comments on the facts or merits of the case, but should address only the general principles applicable to the determination of the case’.
TPIs are communicated to the parties, who have the opportunity to reply to them in their written observations. The Human Rights Centre at Ghent University has extensive experience in submitting TPIs. This blog post discusses our approach to TPIs, particularly those the field of asylum and migration, and considers the impact of our arguments on the Court’s reasoning.
TPI practice at the Human Rights Centre of Ghent University
Since 2011, the Human Rights Centre of Ghent University has submitted a total of 34 TPIs, all of which are available on our website. In addition, there have been two cases in which we were not granted leave to intervene. In of these cases, mentioned below, this was due to a friendly settlement being reached.
In three cases, we had Master students work on TPIs in the context of the course ‘Human Rights and Migration Law Clinic’. In all other cases, the work was done by an ad hoc team of staff members: professors, postdoctoral researchers and/or PhD researchers. We submitted most TPIs alone, yet in 13 cases, we collaborated with one or several partners.
Our TPI practice started as research valorization. With the team of an ERC Starting Grant project focused on ECtHR case law, we held bi-weekly meetings to follow up research progress and discuss recent case law. The bi-weekly case law discussions continued after the end of the project until today, as a ‘Strasbourg Club’. In one of these early meetings, we noticed that case of Konstantin Markin v Russia was being referred to the Grand Chamber. A PhD researcher had already written an extensive case note on the Chamber judgment, which we wanted to bring to the attention of the Court. In that conversation, someone raised the possibility of doing a TPI. We then did this, based on the case note. In our intervention, we put the emphasis on anti-stereotyping, and when this made it into the judgment, we were encouraged to do more of this type of work.
That first instance was a clear case of valorization of pre-existing research. There have been other cases like that, such as our interventions in cases regarding bans on religious dress for Muslim women (SAS v France; Lachiri v Belgium; Mikyas v Belgium; Missaoui and Akhandaf v Belgium). Yet in most TPIs, we valorize more broadly our ECtHR expertise, while conducting some research specifically for the TPI. This has included research into ECtHR case law, and into the case law of other supranational human rights bodies, as well as comparative national law research. In one case, we organized a survey for the specific purpose of a planned TPI.
Our practice is ad hoc; we have occasionally been invited to intervene by a partner (such as NGOs, research units or individual colleagues) or by the attorney of the applicant, yet more often we have taken the initiative after spotting a communicated case or a referral to the Grand Chamber that was of interest to us. Only recently we started systematically following up the communicated cases as part of our ‘Strasbourg Club’.
We cover many different topics, and the choice of cases in which to intervene often depends on available expertise and research interests. The broad field of migration and asylum has been the focus of four of our TPIs.
Non-refoulement of a seriously ill person
Our first intervention in this field concerned non-refoulement of a seriously ill person. At the time, the Grand Chamber judgment of N v UK (2008) used the criterion of “very exceptional circumstances” which was interpreted so restrictively that no applicant was able to pass the test (except D v UK back in 1997). This was widely criticized in the literature. In the case law in this field, there had been, between 2011 and 2015, a series of separate opinions calling for adjusting this criterion. We had been following this, and when a Belgian case of this type was referred to the Grand Chamber, we asked leave to intervene.
SJ v Belgium was the case of a Nigerian woman, a mother of three, who suffered from an advanced stage of AIDS, and who faced expulsion, with her children. In line with the criterion in N v UK, the Chamber had ruled that the expulsion would not breach article 3 because she was not ‘critically ill’ and was able to travel. While we were waiting for the letter granting leave to arrive, we had already started to write our intervention. Yet, when the letter arrived, it said that our request had become moot, because a friendly settlement had been reached between the parties. The applicant and her children were granted unconditional and indefinite leave to remain in Belgium (humanitarian regularization) and she received a compensation of 7000 EUR. Hence the case was struck from the role.
One month later, the Grand Chamber accepted to take on another Belgian case of this type, Paposhvili v Belgium. Mr. Paposhvili suffered from several illnesses, including hepatitis C and leukemia. He was a Georgian national who has lived in Belgium with his wife and children for around seventeen years. The Belgian government had regularized the status of all his family members. However, the applicant’s requests for residence permits (some of them on medical grounds) were rejected because of his criminal record (conviction of theft and involvement in a criminal organization). The Chamber had found no violation of Article 8 nor of Article 3 ECHR because his life was not in imminent danger and he was able to travel. The applicant nevertheless died while his application was pending before the Grand Chamber. Still, the Court did not strike his application out of the list. It found that ‘special circumstances relating to respect for human rights’ required its continued examination based on Article 37 § 1 in fine ECHR. This time, we were able to submit a TPI. This submission was entirely doctrinal and normative: we argued that the strict test in N v UK was incompatible with the absolute prohibition of Article 3, and in which we proposed an alternative test based on assessing the adequacy of the medical treatment the applicant would obtain in the receiving state, and the actual access to such treatment. We also proposed that – by analogy with extradition cases in which there was a torture risk – there would be a procedural duty on the state to obtain assures from the receiving state about access to treatment. The unanimous Grand Chamber in Paposhvili effectively found a violation of Articles 8 and 3. As the Court was manifestly ready to overrule its earlier case law, it is difficult to assess what the role of our TPI has been in this. What we can say is that several key lines of reasoning in the judgment follow what we proposed in the TPI.
One line is the argument that being medically stable and fit to travel as a result of the treatment received should not be a determining criterion in allowing an expulsion. We invited the Court to develop a less extreme approach, one that considered the difference between applicants’ suffering in the sending state and the suffering they would face in the receiving state. The aim, we submitted, should be to determine whether the reduction of applicants’ life expectancy and the deterioration of their quality of life would be such as to reach the level of severity required by Article 3.
We recognised this in the Court’s reasoning that
the “other very exceptional cases” within the meaning of the judgment in N. v. the United Kingdom (§ 43) which may raise an issue under Article 3 should be understood to refer to situations involving the removal of a seriously ill person in which substantial grounds have been shown for believing that he or she, although not at imminent risk of dying, would face a real risk, on account of the absence of appropriate treatment in the receiving country or the lack of access to such treatment, of being exposed to a serious, rapid and irreversible decline in his or her state of health resulting in intense suffering or to a significant reduction in life expectancy (para 183; emphasis added).
We also recognized our emphasis on actual access to treatment in the ruling: the Court said that in assessing the alleged risk of ill-treatment, the domestic authorities should verify whether the care available in the receiving state is ‘sufficient and appropriate in practice for the treatment of the applicant’s illness so as to prevent him or her being exposed to treatment contrary to Article 3’ (§ 189, emphasis added). The domestic authorities should also consider ‘the extent to which the individual in question will actually have access to this care and these facilities in the receiving State’ (§ 190, emphasis added). Referring to existing case law, the Court points to several factors to be taken into account: ‘cost of medication and treatment, the existence of a social and family network, and the distance to be travelled in order to have access to the required care’ (§ 190).
Finally, the paragraph that most clearly suggested to us that we had had an impact was where the Court took up the issue of ‘assurances’:
Where, after the relevant information has been examined, serious doubts persist regarding the impact of removal on the persons concerned – on account of the general situation in the receiving country and/or their individual situation – the returning State must obtain individual and sufficient assurances from the receiving State, as a precondition for removal, that appropriate treatment will be available and accessible to the persons concerned so that they do not find themselves in a situation contrary to Article 3 (…) (para 191).
Other TPIs in the field of asylum and migration
In 2018, Prof Ellen Desmet of the HRC worked together with colleagues from two French speaking Belgian universities and a Belgian NGO to submit a TPI in the non-refoulement case of Basra v Belgium. Mr Basra, an Ahmadi from Pakistan, had been refused refugee status because the mere fact of being an Ahmadi was not sufficient and because his statements contained contradictions making them not credible. During this appeal he submitted a document from the Ahmadi association of Belgium that confirmed that he had held certain functions in Pakistan that raised his profile in terms of risk of prosecution. Yet the Council for Alien Law Litigation refused to take this document into consideration without verifying its authenticity. The argument was that it had no probative value, in the sense that such a document could only support credible statements, but the statements of Mr Basra had been deemed not credible. This was a common line of interpretation for the Dutch-speaking chambers of the Council, as opposed to the French-speaking chambers, which would always examine the authenticity of the documents. This difference related to a difference in interpretation of an ECtHR judgment (Singh and others v Belgium).
The TPI focused on the large weight attached to the credibility assessment of asylum seekers in the Belgian asylum procedures, arguing that this may in certain cases impede the proper and thorough assessment of the fear of persecution and the risk of refoulement. The TPI presented an overview of Belgian case law, and comparative research into other COE states, as well as arguments integrating ECtHR case law with the work of other supranational human rights bodies such as the UN Human Rights Committee.
Yet the case was struck from the list after a unilateral declaration of the Belgian government guaranteeing that a new application would be considered on the merits; in the meantime the applicant had obtained a temporary residence permit on humanitarian grounds. So his individual problem was solved, but the structural problem addressed in the TPI remained in place.
Finally, there are two pending applications, which were submitted in 2022. The case of Barry v Belgium concerns the age assessment of unaccompanied minors. The applicant was not recognized as a minor (which would entail additional protection measures such as the appointment of a guardian) based on X-rays of her clavicle, teeth and wrist. She complains of a violation of Articles 8, 14 and 13. This TPI is a collaboration of the Ghent Human Rights Centre and the Centre for the Social Study of Migration and Refugees, also at Ghent University. It addresses the excessive and often exclusive focus on medical age testing in determining the age of unaccompanied minors in Belgium, thereby failing to take into consideration foreign birth certificates and other documents, even if their authenticity has been confirmed. The TPI shows that the case is exemplary for a pattern in Belgium. It summarizes the scientific conclusions about the lack of reliability of skeletal and dental age assessments. Then it presents relevant materials from comparative international human rights law, including from the Committee on the Rights of the Child and the European Committee of Social Rights. The final sections set out the impact of age assessments on private life and present a take on the state’s obligations under Articles 8 and 14 ECHR regarding age assessment.
The case of MA and ZR v Cyprus is about the summary return of two Syrian nationals to Lebanon, following the interception of their boat by the Cypriot Port and Marine Police. They complain under Article 3 about their treatment by the coastguards while on the boat, the refusal of access to the asylum procedure, and their return to Lebanon facing extremely dire living conditions with a serious risk of indirect refoulement to Syria. This is a TPI by Euro-Med Rights and KISA, two NGOs, jointly with two centres of Ghent University. The contribution of the Human Rights Centre is based entirely of the research conducted by a postdoctoral researcher, Jill Alpes, a legal anthropologist, who had conducted interviews in the spring of 2021 with 20 policy makers and practitioners in Lebanon and Cyprus, 13 displaced Syrians in Lebanon, as well as 26 Syrian and Lebanese nationals who were summarily removed from Cyprus to Lebanon. So this is a case of valorisation of pre-existing research, in which Jill’s material is used as supportive evidence for claims made also on the basis of NGO and IGO material, about the patterns and structural conditions in which the case of the applicants fit.
To conclude
A TPI is a text of maximum 10 pages that is practical rather than theoretical. If you set up a team of several persons with each writing/researching on a matter they are familiar with, it is very little work for each person. Our experience has been that many researchers really enjoy this type of work.
It is difficult to assess the actual impact of a TPI. Often the Court does not follow our lines of reasoning at all, and then we know we did not have the desired impact. But when the Court does follow our lines of reasoning, we do not know what our contribution was to that result. The Paposhvili case is an example where we strongly felt that we had contributed. And there are other examples, outside the field of asylum and migration. For us that is enough to keep doing this type of work.
The views expressed in this article belong to the author/s and do not necessarily reflect those of the Refugee Law Initiative. We welcome comments and contributions to this blog – please comment below and see here for contribution guidelines.