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ŠÁRKA OŠŤÁDALOVÁ
CYIL 6 ȍ2015Ȏ
and protection resulting from guaranteeing human rights (in particular with respect
to internally displaced persons escaping a war conflict but not crossing international
frontiers). This concurrence of potential areas of regulation primarily suggests that
recent international law has insufficiently responded for a solution of the issue.
Part four of the publication deals with the guarantee of the rights of refugees
and (forced) migrants within the existing international mechanisms of protection
of human rights, with special regard to the regional European subsystem. The latter,
particularly through the European Convention on Human Rights (“ECHR”) and
relating decision making powers of the European Court of Human Rights (“Court”),
is to supervise the observance of basic human rights of migrants and restricts the
freedom of states to regulate the entry and stay of migrants in their territories.
This helps to protect these persons and may, to a certain extent, fill in the legal gap
that may exist in the specific and targeted regulation with regard to the status of
“improper” refugees.
As suggested by the chapters dealing with this topic, there are two areas of legal
regulation emerging within the protection of rights of migrants and refugees coming
or living in the territory of European states. The first area is the protection relating
to the ban on torture, inhumane and humiliating treatment and punishment under
Art. 3 ECHR, whose basic contours are tackled by Ján Šikuta, along with examples of
the Court´s case law applicable to (forced) migrants. Protection provided under this
Article is absolute; it may be pursued in many ways within migration situations. One
type of violation of the Article is direct action by contracting states arising when the
conditions in detention facilities where improper migrants and refugees are confined
are unsatisfactory. In addition, a significant role is played in practice by rules for the
protection against
refoulement
–
i.e.
returning migrants (refugees) back to countries
where their rights guaranteed by Art. 3 ECHR would be threatened. This duty of
states, designated as
non-refoulement
, has been inferred within protection under Art. 3
ECHR by the case law of the Court; the consideration of this duty is evident in both the
return (expulsion, surrender) of persons staying in the territory of a European state and
the reaction of states against persons coming to the territory of any European state and
seeking protection there. As can be observed primarily with respect to newly-arriving
migrants and refugees, the practice of some states is aimed at insufficiently respecting
rights guaranteed by the Convention and their attempts are apparently to avoid their
duties towards migrants and their reception. The practical implementation of the
protection against
refoulement
of newly arrived migrants may be, due to insufficient
political will, barred by many obstacles, such as the case of
search and rescue
zones in
high seas, which is dealt with by Eliška Flídrová.
The second thematic area within the protection of human rights of migrants
and refugees is issues relating to the restriction or deprivation of personal liberty
connected with protection under Article 5 ECHR. Protection against arbitrary or