The European Court of Human Rights has not had a good press in this country lately, and for very good reasons, many would say. Mostly, we don’t in this country see the need for any judicial system but our own to defend our human rights. Some of the ECHR’s recent rulings, notably those connected with the Abu Qatada case, reduce many of us to a condition of impotent fury. The court’s proceedings take for ever. It is grossly inefficient. Half its judges have no previous judicial experience, and the other half only at a junior level. And on and on.
I have, all the same, found myself reporting one or two cases in which it handed down sensible decisions, notably its March 2011 judgment that crucifixes may be displayed in Italy’s public schools. Fr Federico Lombardi said that the Holy See had received the ruling “with satisfaction”, calling it historical, and opining that the decision recognised “that the culture of the rights of man must not be in opposition to the religious foundations of European civilisation, to which Christianity has made an essential contribution”. Well, maybe that was going a bit far, but it was a good decision all the same, and the kind of thing the ECHR ought in an ideal world to be doing.
So occasionally, such decisions, on behalf of the citizen and against a nation’s own courts, do seem even to such as me occasionally to justify the court’s existence. In fairness, therefore, ought we to look a bit more closely at this train of thought? The most convincing argument seems to be that the Council of Europe, whose member countries recognise, in theory, the Court’s authority, includes some countries where the government itself regularly inflicts on its population quite gross human rights violations, and where the ECHR is the only hope, in many cases, of getting some kind of redress. If, by the reforms we want, we weaken it substantially; or if we start ignoring its judgments as many Tory MPs (and often people like me too) would like, that would greatly weaken the court’s authority internationally (only 2.4 per cent of the court’s judgments after all have to do with this country), and deliver whole populations into the hands of tyrannical governments, who would simply say, well, if the Brits ignore the court, why shouldn’t we?
This argument was put this week in The Independent newspaper by Tara Lyle, Policy Adviser to Amnesty International UK, who asks firstly whether the Court is really the villain it is being presented as, and secondly, “what are the implications of crippling the power of the Court for the 800 million individuals for whom it is the last recourse against governments with dismal records on human rights eclipsed only by their appalling records on accountability?” She highlights the example of the Russian Federation:
More than 25 per cent of cases come from Russia. This February, the court found Russia responsible after police took a man from his cell into a forest where they beat, kicked and throttled him to force a confession to murder. The Court found that the authorities routinely failed to investigate police crimes and to bring those responsible to justice. If we are looking for someone to cast as a villain, perhaps we need to look at the people in the dock, rather than the dock itself.
Russia is bad: but it falls way behind Turkey in the court’s caseload. According to the ECHR itself, between 1959 and 2009 Turkey was “by far the worst violator of human rights” among the 47 signatory states of the European Convention on Human Rights. There is, however, a parenthetical query here: could that be because under the Soviet Union, most people had no chance at all of getting anywhere near the ECHR?
However, Turkey’s record remains, to this day, utterly dismal. In 2009 alone, Turkey yet again topped the list of violations of articles of the European Convention on Human Rights, as it always does. Three hundred and fifty six cases out of a total of 1,625 put the country in the “worst violator” class. Russia followed Turkey in 2009 with 210 judgments against it.
So, is the ECHR doing a good job, after all, bringing justice in the face of tyranny and oppression? Well, maybe not. The European Convention on Human Rights, drafted in 1950 (which Turkey signed) placed Turkey under the jurisdiction of the ECHR. But Turkey still hasn’t fully ratified all articles of the Convention, despite signing them. And even though Turkey has according to the ECHR, “made some progress on the observance of international human rights law”, the ECHR also found that there are still ECHR judgments which have been “an outstanding issue for several years”. In other words, if they don’t like an ECHR judgement, the Turks just ignore it.
Meanwhile, we are all saddled with a dysfunctional institution which is so choked up by its own incapacity to perform what it has undertaken that it is effective only in its capacity to get in the way. There is a backlog of more than 150,000 cases with 5,000 new cases arriving every month: it will take three years for the backlog to be cleared.
Another major issue is the quality, or lack of it, of the ECHR’s judges. About half of the judges do not have any prior judicial experience: and of course many of them come from countries with a worse than dismal record on human rights. Among those who do have judicial experience, it is normally at a junior level. One of the few exceptions is Dr Vincent de Gaetano who served as Chief Justice of Malta from 2002-08, after five years as the Deputy Attorney-General and eight as a judge, and who taught Criminal Law and Sociology at the University of Malta. Dr Gaetano’s distinction highlights the utter lack of distinction of most other former national judges, including Sir Nicolas Bratza, the British president of the ECHR, who has never held a senior judicial position in Britain: he is now, however, a more powerful figure in our legal arrangements than an English Supreme Court judge with many years of judicial experience at a senior level.
If we are to carry on like this, we must, surely, have a major overhaul of the court’s operations: but that, it is becoming clear, isn’t going to happen. Nor are the oppressive regimes which (probably for propaganda purposes) signed up to the European Convention on Human Rights showing any signs of respecting the Court’s judgments as we so conscientiously always do. So that really does weaken the argument against our either pulling out of the whole thing or at the very least taking legislative powers to allow our own Supreme Court under certain circumstances to overrule the ECHR’s judgments, or neutralise its capacity inordinately to delay our own legal processes.
None of this, of course, will happen, as long as there is a coalition with the Lib Dems. I don’t have much time for Mr Cameron at the moment; but it may be that if he wins the next election he will still be sufficiently fed up with the ECHR to do something about this. It looks like the only hope for something sensible to emerge from this frightful mess. The triumph of hope over experience, maybe. But what else is there?
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