The Principle of "Non-Refoulement" and its Evolution in the Jurisprudence of the European Court of Human Rights

Abstract

The principle of non-refoulement provided for by Article 33 of the Geneva Convention constitutes a principle of international law with a significant role in the protection of human rights. This principle has been confirmed by the European Court of Human Rights, which has affirmed the state's responsibility for returning an asylum-seeker to a country where he risks being subjected to inhuman and degrading treatment or torture, in breach of Article 3 of the European Convention on Human Rights. Considering this reasoning, in the case of Hirsi Jamaa and others v. Italy, the European Court of Human Rights found the Italian State responsible for violating Article 4 of Protocol No. 4 for the collective refoulement of migrants without a procedure for assessing their individual situation in a state where they could face inhuman and degrading treatment, as well as for violating Article 13 of the European Convention on Human Rights, as the applicants had been denied the opportunity to appeal before the expulsion measure was carried out. Recently, the European Court of Human Rights' orientation has changed since, in the case of N.D. and N.T. v. Spain, the Court excluded the violation of both Article 4 of the 4th Protocol and Article 13 of the European Convention on Human Rights, stating that the collective rejections were due to the “applicants' own conduct”. This decision entails many perplexities regarding the protection of human rights.

Received: 24 January 2022 / Accepted: 19 March 2022 / Published: 5 May 2022