N.D. AND N.T. v. SPAIN - 8675/15 (Judgment : Grand Chamber) [2020] ECHR 142 (13 February 2020)
Citation: N.D. AND N.T. v. SPAIN - 8675/15 (Judgment : Grand Chamber) [2020] ECHR 142 (13 February 2020)
Rule of thumb 1: If a person is being subjected to persecution in their home country, but not actual degrading conditions, is it a violation of their human rights not to offer them ‘asylum seeker’ status? No, it is not a human rights violation for a person not to be offered ‘asylum’ seeking status – there is no human right to asylum and ‘asylum’ is a matter for national countries to determine - this right at least is not one of the typical human rights entrenched by western countries.
Rule of thumb 2: Are the human rights people possess set in stone? No, there is a continuous debate on whether the number of human rights have evolved or if they should be expressly differently.
Judgment:
The basic facts of this case were that the an immigrant sought to apply for asylum in Spain but Spain did not want to grant this. The Court held that the ‘human right to asylum’ is not a human right which is acceded to by many countries. They further held that it was only based on the right to degrading treatment of torture that an “alien” may not be expelled from a country. This case shows that in order to rely firmly on a right then it has to be checked whether it has been acceded to. The Court did however hold that parties were entitled to make reference to other human rights as part of their arguments and the Courts did have to consider these meaning that other human rights are recognised – the Court made reference to human rights charters being living instruments, ‘13.5. The Committee also notes the State party’s argument that the communication is inadmissible rationae materiae because it refers to the author’s right to asylum, which is not covered by the Convention. The Committee notes, however, that the present communication concerns alleged violations of the author’s rights under articles 3, 20 and 37 of the Convention and not his right to asylum. The Committee therefore finds that the communication is admissible rationae materiae. ... 188. The Court would also emphasise that neither the Convention nor its Protocols protect, as such, the right to asylum. The protection they afford is confined to the rights enshrined therein, including particularly the rights under Article 3. That provision prohibits the return of any alien who is within the jurisdiction of one of the Contracting States for the purposes of Article 1 of the Convention to a State in which he or she faces a real risk of being subjected to inhuman or degrading treatment or even torture. In that respect, it embraces the prohibition of refoulement under the Geneva Convention.... (opinion of the Court) ... 13. As the Court has acknowledged in the past, the engagement undertaken by a Contracting State under Article 1 is confined to “securing” the listed rights and freedoms to persons within its own “jurisdiction” (see Soering v. the United Kingdom, 7 July 1989, § 86, Series A no. 161, and Banković and Others v. Belgium and Others (dec.) [GC], no. 52207/99, § 66, ECHR 2001 XII). In other words, the obligations arising for the Contracting States under the Convention are not intended to apply for the benefit of persons outside their jurisdiction. Furthermore, the Court has also acknowledged that the “living instrument“ doctrine cannot serve to widen the scope of Article 1, which is “determinative of the very scope of the Contracting Parties’ positive obligations and, as such, of the scope and reach of the entire Convention system of human rights’ protection” (see Banković and Others, cited above, §§ 64-65). 14. Secondly, the Convention - unlike, for example, the European Union (EU) Charter of Fundamental Rights (see Article 18 of the latter) - does not include provisions concerning the right to asylum or international protection. Ensuring access to asylum procedures for aliens wishing to enter the jurisdiction of a State Party is therefore not a matter falling under the Convention, and consequently not a matter for the Court’s supervision. The extent to which the Convention regulates matters relating to asylum and international protection is limited to the obligation of non-refoulement, as encompassed in Articles 2 or 3, that is to say, a duty for the Contracting States not to remove or surrender anyone within their jurisdiction to another jurisdiction where the individual concerned would be subjected to a real risk of treatment prohibited under those provisions. (partly dissenting Judgement of Judge Koskello)
Warning: This is not professional legal advice. This is not professional legal education advice. Please obtain professional guidance before embarking on any legal course of action. This is just an interpretation of a Judgment by persons of legal insight & varying levels of legal specialism, experience & expertise. Please read the Judgment yourself and form your own interpretation of it with professional assistance.