Nine European leaders last week called for a reinterpretation of the European Convention on Human Rights in a bid to accelerate deportations. The signatories have been admonished from all angles for their unprecedented attack on a bedrock human rights text.
Last Friday, an open letter signed by the leaders of Denmark, Italy, Austria, Belgium, the Czech Republic, Estonia, Latvia, Lithuania and Poland said the European Court of Human Rights (ECHR) was "limiting" their ability to make "political decisions" about deporting "criminal foreign nationals" from their respective territories.
Credit: Belga / Nicolas Maeterlinck
The ECHR is the legal arm of the Council of Europe (CoE), the continent's largest human rights organisation. The Court is tasked with ensuring that all 46 CoE Member States comply with the 1950 European Convention of Human Rights by upholding fundamental rights and freedoms.
The letter argues that the universal values enshrined by the Convention are still relevant but that migration today is occurring on "a completely different scale". "Some [irregular migrants] have not contributed positively to the societies welcoming them and have chosen to commit crimes [...] Although this concerns only a minority of immigrants, it risks undermining the very foundation of our societies."
They call for "more room" to decide on when to expel "criminal foreign nationals", "more freedom" when tracking those who cannot be deported and more steps to counter the instrumentalisation of migrants at borders.
The CoE has publicly responded to the letter, stating that "Debate is healthy, but politicising the Court is not".
"Institutions that protect fundamental rights cannot bend to political cycles," said CoE Secretary-General Alain Berset. "The Court must not be weaponised – neither against governments, nor by them."
Belgian reaction: Court prevents torture
Prime Minister Bart De Wever. Credit: Belga/Hatim Kaghat
Belgian Prime Minister Bart De Wever was one of the letter's signatories, a move that has provoked widespread concern across domestic civil society.
In a statement published on Monday, Belgian academics reminded the Federal Government that "Belgium knows all too well" that ECHR rulings allow for nuance, citing the El Aroud and Soughir judgment that permitted a "wide margin of error" when deciding to deprive an individual of Belgian nationality.
However, article three of the Convention bans torture, thereby preventing the deportation of people to countries where this is a possibility. "No individual, not even a drug trafficker or terrorist, can be deported to a country where he or she risks, for example, having a confession extracted by cigarette burning, electric shocks or waterboarding."
A separate statement signed by seven public institutions asked the government to reaffirm its commitment to the ECHR and to guarantee that the institution would not come under political pressure. In addition, the rule of law and security must not be pitted against each other and the prevention of torture is "inviolable".
'In line' with De Wever's policy
De Wever's signature is "in line" with his domestic policy, refugee and immigration lawyer Benoit Dhondt told The Brussels Times.
Firstly, De Wever has been critical of human rights texts in the past (he criticised the Geneva Convention for offering too much protection to refugees in 2015).
Secondly, the current Federal Government's coalition agreement details some "extremely worrisome" attempts to curtail the independence of the judiciary. Judges will no longer be nominated for life and will have their mandates renewed every five years. The CGVS/CGRA (the state body that processes asylum applications) will be subject to interventions from the Asylum and Migration Minister.
Immigration lawyer Cécile Taymans has also expressed concern at these developments.
"At the moment, the last line of defence on asylum is still the judge or even the CGRA," she told The Brussels Times. "The government agreement says that refugee status is being granted too much [...] But it is not the Minister's job to say that. The CGRA analyses case by case. There is a real desire to control the asylum authorities and tell them what to do."
Rule of law already eroded
Dhondt and Taymans both highlight the depth of the rule of law crisis in Belgium. There are over 12,000 court rulings condemning the Belgian State and reception agency Fedasil for failing to adequately welcome international protection applications.
In June 2023, a labour court imposed a daily penalty fee on the State for non-compliance with rulings. Asylum and Migration Minister Annelees Van Bossuyt (N-VA) confirmed to The Brussels Times last week that the State has no intention of paying the daily fee.
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The ongoing rule of law and reception crises have been repeatedly condemned by Amnesty International and the CoE.
Because the crisis predates the Arizona government, Dhondt says it is "very difficult" for opposition parties to criticise De Wever's cabinet for failing to resolve these issues. The Human Rights League flagged this challenge last year, stating that "If democratic parties can allow themselves to flout the most basic elements of the rule of law with impunity, the path is clear for the far right to do the same if it comes to power."
Taymans warns that the rule of law crisis will not remain contained to immigration law. "What will force the Belgian State to comply with rulings, since they've already started to stop enforcing them?" she asks.
