She Shoots… She Misses … Again – Theresa May Off Target on ECHR Goalposts!

By Richard A. Edwards. ILHRU. UWE, Bristol.

Yesterday the Home Secretary, Theresa May, gave a speech to ‘Conservative Home’ in which she repeated one of her favourite ECHR canards:

… We should also consider very carefully our relationship with the European Court of Human Rights and the Convention it enforces. When Strasbourg constantly moves the goalposts and prevents the deportation of dangerous men like Abu Qatada, we have to ask ourselves, to what end are we signatories to the Convention?

Mrs May had made a same point before, albeit in a somewhat more sophisticated manner:

It is also deeply unsatisfactory that the European court of human rights continues to move the goalposts for governments trying to deport dangerous foreign nationals. The Court has longstanding case law in relation to Article Three of the European Convention – prohibiting torture and inhuman or degrading treatment – and successive British governments have secured deportation with assurance agreements with other governments so deportations can proceed in accordance with the law. But the court’s unprecedented ruling in January – in relation to article six, the right to a fair trial – has added yet another barrier to deportation.

Has the European Court of Human Rights really moved the goalposts?

The leading case is of course Soering v UK [1989] ECHR 14038/88. Soering, where the goalposts did move, is long standing authority for prohibiting expulsion/extradition to jurisdictions where there is a real risk of being subjected to treatment contrary to Article 3 ECHR in the receiving country. The expulsion/extradition can only proceed if effective guarantees against ill-treatment can be secured. However, in the same judgment the European Court noted that Article 6 might also act as a bar to extradition in certain circumstances: 

113.  The right to a fair trial in criminal proceedings, as embodied in Article 6 , holds a prominent place in a democratic society. The Court does not exclude that an issue might exceptionally be raised under Article 6 by an extradition decision in circumstances where the fugitive has suffered or risks suffering a flagrant denial of a fair trial in the requesting country. However, the facts of the present case do not disclose such a risk.

The European Court affirmed this view in Mamatkulov and Askarov v. Turkey [2005] ECHR 46827/99. Here the Grand Chamber held that it was arguable that the applicants did not enjoy a fair trial after their extradition to Uzbekistan. However, in this case the Grand Chamber was unable to conclude whether there had been a ‘risk of a flagrant denial of justice’ when the applicants were returned, because there was insufficient information before the court.

Thus it has long been apparent that Article 6 ECHR may apply in expulsion/extradition cases. The goalpost was firmly planted on the European pitch in 1989. Thus there was always a chance that in a suitable application that the European Court would apply the ’risk of a flagrant denial of justice’ under Article 6. Qatada was therefore nothing remarkable, save in the finding of a violation of Article 6.


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