Implementation of standards of the european convention on human rights regarding forced removal of aliens in the European Union law

• Main Authors: E. A. Torkunova, K. G. Zharinov
• Format: Article
• Language: English
• Published: Moscow State Institute of International Relations (MGIMO) 2020-12-01
• Series: Московский журнал международного права
• Subjects: european convention on human rights; european court of human rights; eu law; removal of aliens; common european asylum system; dublin system; european arrest warrant
• Online Access: https://www.mjil.ru/jour/article/view/377

INTRODUCTION. The global migration crisis taking place in the world and especially within the European Union provokes debates regarding the necessity to change the current approaches to the regulation of migration issues. Thus, extensive work has been done in the recent years on the new future reform of the Area of Freedom, Security and Justice of the EU including the Common European Asylum System. Besides that, the Lisbon Treaty, which entered into force in 2009, provides that the European Union shall accede to the European Convention on Human Rights. Despite the failed attempt of accession in 2014 blocked by the Court of Justice of the EU, the European Union still must fulfill its obligation, which is bound to happen sooner or later. That is why the topic of the present article is of particular interest at the moment. However, it is important to clarify the understanding of certain terms used in the heading of the article. In particular, it should be noted that the term “aliens” in relation to the European Union legal order covers nationals of states that are not EU-members and do not apply the European Union law concerning migrants on other grounds (for example, due to the membership in the European Economic Area) and stateless persons as well. Further, the reader should take into account that the European Convention on Human Rights as an international treaty is not, strictly speaking, a source of EU law per se as the EU is not a party to the ECHR, at least so far. Therefore, the European Union is not directly obliged under international law to implement the ECHR. Nevertheless, the provisions of the Convention formed the basis for one of the most significant sources of the EU law – the so-called “general principles of the EU law”. Most of them were later codified in the Charter of Fundamental Rights of the European Union, which expressly stipulates that the meaning and scope of the Charter rights which correspond to rights guaranteed by the ECHR shall be the same as those laid down by the ECHR. It means that today the EU already shall comply with the Convention standards regardless of its non-accession to the ECHR as a collective party. Due to objective limits of the text volume the present article concentrates on implementation of the key substantive Convention guarantees concerning forced removal. Consequently, it does not cover the procedural standards laid down by Article 13 of the ECHR. Moreover, the research does not touch upon the general standards of Articles 3 and 8 of the Convention applied not only in the context of removals of aliens but also in other situations (e.g., regarding the conditions of detention). The aim of the present article is to evaluate the implementation of standards of the European Convention on  Human Rights regarding forced removal of aliens in the European Union law and to suggest measures to ensure compliance with the Convention guarantees in case of detecting any problematic issues.MATERIALS AND METHODS. The research refers to the provisions of the European Convention on Human Rights, the primary and secondary EU law, the case-law of the ECtHR and the CJEU, the recent works of Russian and foreign scholars and also the Council of Europe handbooks. The methodological basis of the research consists of general scientific methods (analysis and synthesis, deduction and induction, classification, systematization, prediction) and special legal methods (comparative legal and formal-legal methods).RESEARCH RESULTS. Today the EU law thoroughly regulates such areas as granting international protection to third country nationals; determination of the member state responsible for examining an application for international protection lodged in one of the member states by an alien and his/her subsequent removal to this member state; removal of illegal immigrants to third countries and also the legal status of third country nationals who are family members of an EU citizen. The provisions of EU legal acts in this regard were formulated inter alia on the basis of the case-law of the ECtHR. Although the ECtHR has found violations of the Convention by the EU member states in a number of cases concerning the application of the EU law in the migration context (for example, within the framework of the Dublin system), all these violations were rather caused by exercising of discretionary powers by the member states than resulted from the content of the EU law itself. Moreover, the human rights-based approach used by the CJEU in the interpretation of certain potentially problematic legal acts (in particular, the Framework Decision on the European arrest warrant) contributed to the fact that the ECtHR has never come to a conclusion that the presumption of equivalent protection granted by the EU law (formulated in «Bosphorus Airways v. Ireland» in 2005) was rebutted in any cases regarding forced removal of aliens. Besides that, as of today in many aspects connected with migration the EU law provides broader protection that the Convention.DISCUSSION AND CONCLUSIONS. The standards of the European Convention on Human Rights regarding forced removal of aliens have been success-fully implemented in the European Union law despite certain originality of how the Convention guarantees are incorporated to the EU legal order in general. This is confirmed, among other things, by the fact that the ECtHR has never come to a conclusion that the presumption of equivalent protection granted by the EU law was rebutted in any cases regarding forced removal of aliens. However, the theoretical possibility of rebuttal of the said presumption in future cannot be excluded and the whole concept of such presumption has been occasionally criticized. The time will show whether the future EU legal acts (in particular, those adopted in the course of the ongoing reform of the Area of Freedom, Security and Justice in response to the escalation of the migration crisis) will fully comply with the European Convention on Human Rights.