Balancing justice, national security and protecting the vulnerable under article 5 and 6 of the ECHR : a critical inquiry of the asylum framework in Malta

Abstract

In 1948, during the United Nations General Assembly of the Universal Declaration of Human Rights, profound words placed all human beings, to be at pari passu, regardless of their social and cultural backgrounds, gender identity and sexual orientation and this has since been accepted as a legal obligation both in International Law and European Law. The European Convention on Human Rights (ECHR) appears to have only sporadic significance to individuals seeking refuge in Europe since it contains no specific provisions pertaining to asylum, yet this is not so since the extensive corpus of legal guidance that resulted from the institutions of the Convention, norms and legal obligations were established for individuals seeking refuge and their rights throughout Europe. Asylum seekers need additional special protection to exercise their rights, both equally and effectively since they are often fleeing torture, degrading and inhumane treatment in their countries of origin therefore they should not endure criminal punishment for fleeing from persecution whilst trying to safeguard their and their loved one’s lives. They often depend on the protection of their host state under the principle of non-refoulment which can be said to be indirectly protected by Article 3 ECHR, however, they sometimes face more severe challenges and suffer human rights violations. Research, for instance, underlines how these risks are exacerbated in a detention context and well as pending the asylum procedure, however the manner in which they are treated throughout and within this procedure often raises concerns as to whether their dignity and protection are being guaranteed. Together with the protection and rights generally granted to every human being, this research will conduct a thorough assessment of Article 5 and Article 6 of the ECHR and determine their impact on the asylum framework especially in Malta. The dissertation shall not only contribute to the literature on asylum, migration and human rights but will also provide an interesting analysis and possibly, recommendations as to how asylum seekers’ may be treated better and hence have their fundamental human rights within Article 5 and Article 6 of the ECHR upheld.