Determining the Extent of Procedural Safeguards in Expulsion Proceedings – A Study of the Scope and Compatibility of the Guarantees Set Out in Article 1 of Protocol No. 7 ECHR

University essay from Lunds universitet/Juridiska institutionen; Lunds universitet/Juridiska fakulteten

Abstract: It is the sovereign prerogative of the state to regulate the presence of aliens within its territory. This right, however, is not without limits. Article 1 of Protocol No. 7 to the European Convention on Human Rights ensures procedural safeguards relating to the expulsion of aliens. These safeguards must be considered in expulsion proceedings by those Member States having ratified the protocol. Up until recently, little guidance on how to interpret the article was to be sought in the case-law of the European Court of Human Rights. However, in October of 2020, the Grand Chamber of the Court delivered its first judgment in which it found a violation of the article. The case, Muhammad and Muhammad v. Romania, has been described as groundbreaking and is the first case where the court deals with the provision substantively. This thesis aims to better understand the guarantees set out in Article 1 of Protocol No. 7 to the Convention, focusing on how these procedural rights relate to the idea of state sovereignty and the procedural safety of the individual. Moreover, the current interpretation of the article is analyzed in relation to how it fits into the broader Convention system. As a basis for the examination, critical legal positivism is used. To summarize the findings of the thesis, the court establishes a new method of legal problem solving in Muhammad and Muhammad v. Romania that should be followed when determining whether the procedural safeguards of the article have been violated or not. In the end, a fair balance between state sovereignty and individual protection of the alien subject to expulsion is required. However, different views on what constitutes a fair balance make the issue a very complex one. Using critical legal positivism, one is also to remember that the majority’s judgment in the case does not reflect any “truth” when it comes to how the provision is to be understood.

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