Wednesday, 28 September 2011

G.F. & 88 others v Denmark [2011] ECHR 1331: Greece is the word

This one slipped under the radar a bit.  The case itself is not extensive.  Half-a-dozen paragraphs.   Indeed it’s not really a case; it’s the government of Denmark withdrawing from the case, because it is going to adopt a judgment that came earlier in the year – and which got ignored.
The earlier judgment is the case of M.S.S. v Belgium and Greece.  Application number 30696/09.  Decided in January.  Which, potentially, drives a coach and horses right through EU law on conflict of laws.
I’ve mentioned the Italian Missile on here before.  The argument that has not, as yet, been applied in the English courts is whether it is contrary to human rights legislation for a matter in the Italian courts being left for the Italian courts to decide, on the basis that the Sun might become a white dwarf before the matter gets decided.  After all, the Convention on Human Rights grants access to justice.  And justice delayed is justice denied.
The problem is that the EU orders all domestic courts to treat all court systems equally; a fiction that is convenient for Eurocrats but dreadful for those who have to deal with said courts.  Where is the incentive for improvement?  After all, the Court of Exchequer worked out a quick and accurate system for contract claims because the Common Law courts were achingly slow – and the court fees were appealing.  Which ultimately led to reform of the Common Law courts.  Took a few hundred years, admittedly, but still quicker than the average Italian case...
But does this EU fiction contravene human rights laws?  One other well-established principle is that asylum seekers should seek asylum in the first safe country they get to.  Unfortunately for one Afghan asylum seeker (an interpreter the Taliban were trying to kill for that supposed apostasy) that country was Greece.  The lot of an asylum seeker in Greece is fairly dreadful; locked up 20 to a room, no toilet access, no bed.  So he legged it to Belgium and sought asylum there.
The Belgians decided that the asylum seeker should have sought asylum in Athens and sent him back.  Where he was detained in a room with 19 others, no toilet access, no bed.  All pretty dreadful and all in breach of Greece’s international obligations.
So, the asylum seeker sued the Belgian and Greek governments for breaches of human rights.  The Belgian government was somewhat aggrieved by this; the Belgians had complied with their international law duties, there was no obligation on the Belgian taxpayer to support someone who had arrived in Europe via Greece, after all.  The problem was that the various conventions and treaties to which Belgium (and Greece) had signed up provided that asylum seekers should not be treated in a degrading manner – Greece certainly breached that – and that a seeker should not be deported to a country where such degrading treatment would be applied.  Belgium had done that, albeit under international law...
So, a conflict of international laws.  How to resolve?  Fairly easily.  The point of the legislation was to protect asylum seekers from adverse treatment.  Administrative convenience of dumping everyone in the first safe country they reach is overridden by the requirement to treat properly.  Belgium knew Greece treated asylum seekers shoddily; Belgium facilitated this treatment by delivering an asylum seeker right into Greek hands.  Belgium was therefore in breach.  It should have ignored international law giving Greece priority.
One dissenting judgment came from the British representative – Sir Nicholas Bratza – who pointed out that the decision in M.S.S. went against the court’s decision a few months before allowing repatriation to Greece.  Then again, precedent (one might argue principle) has never borne weightily on the minds of European judges.  As it is, however, perhaps the various articles giving power to decide civil cases to a court first seised may contradict human rights law; if a contract is in English, has English law provisions, an English jurisdiction clause and all damages are in England, why wait years for an Italian court?  Your human right to justice may demand an English court take it back...

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