Slingenberg
393
2015: 522). The core threat to the range of options of the individual that is subjected to a
subsistence exchange contract is, however, independent of the proposer, according to
Ashford:
In cases of standard coercion, the threat that the coercion poses to enjoyment of other rights
arises from the coercer’s posing a specific threat of harm to the victim unless the victim
agrees to forgo another right. By contrast, the threat that destitution poses to the enjoyment
of other rights lies with the fact that the existing plight of the destitute is already completely
unsustainable. If forgoing another right is the only available opportunity for obtaining subsistence, then the choice not to forgo the right, which will lead to the continuation of the
status quo, is an unsustainable option. (Ashford, 2015: 527)
Ashford argues that regardless of whether or not subsistence exchange contracts are classified as coercion, the threat they pose to the enjoyment of negative rights is just as severe
as that posed by extreme standard coercion. The threat is just as severe, since the decision
to accept such a contract is just as non-voluntary. The key issue for assessing whether a
choice is voluntary is whether it is made only because of the ineligibility of the alternative
options. With ineligible options, Ashford means those that are not choice-worthy. In
cases of extreme coercion, the threatened harm is so severe that the option of refusing
is unsustainable – ‘not in the sense that it is beyond human capacity to endure, but in
the sense that anyone would have a desperate and ever-pressing desire to avoid it’.
A destitute individual agrees to a subsistence exchange contract only because the only
available alternative is inadequate subsistence, which is unsustainable in this respect as
well. So, independent of who or what causes the destitution (e.g. natural calamity,
general poverty, or action by an agent aimed to realize the predicament), what matters
is that refusing the conditions attached to the provision of subsistence is an unsustainable
option. Just as in cases of extreme standard coercion, the option of refusing is entirely
unsustainable. That is the reason why, according to Ashford, the threat to the enjoyment
of other rights is just as severe as the threat posed by extreme standard coercion.
The difference between cases of standard coercion and cases of a subsistence
exchange contract could clarify the case law of the ECtHR and other institutions
about the interpretation of the concept of deprivation of liberty. In their line of interpretation, the impossibility to leave a centre must be caused by the authorities, by either
locking the doors (at their side of the territory) or withholding permission to leave. If
there is an actual possibility to leave the centre during the day, migrants are not
deprived of their liberty, since they are not coerced to stay in the centre. This interpretation makes sense if coercion is seen as a necessary ingredient of a deprivation of liberty
(Allen, 2009). Providing reception to destitute asylum seekers in highly surveillanced
centres under the condition of complying with a curfew does not necessarily involve
coercion under the standard approach. After all, the state provides a way out of their
otherwise destitute situation (and did not create the destitute situation in order to
create harm). Since asylum seekers get something in return (food, shelter) for subjecting themselves to the freedom restricting conditions, these restrictions are not severe,
they are a ‘simple restriction de mouvement’. In that interpretation, residents of the
Greek CCACs are not deprived of their liberty.
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