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UK hails “substantial” reforms of Europe’s Human Rights Court: but what difference will they make?

By William Horsley, AEJ Media Freedom Representative

Brighton, 20 April 2012

Kenneth Clarke, the British Minister of Justice, has claimed success in winning the consent of the ministers of justice of all 47 states of the Council of Europe for a package of “quite substantial” reforms of the European Court of Human Rights (ECHR) in Strasbourg.

In effect the Strasbourg court has this week found itself in the dock, charged by European politicians with responsibility for (in Ken Clarke’s words) an “appalling backlog” of cases and “scandalous delays” in administering justice.

But the consequences of yesterday’s Declaration agreed in the English seaside town of Brighton are hotly contested, as are the merits of the reforms. So what really happened there, and what difference will it make to the 800 million Europeans living in countries where the Strasbourg court is the ultimate arbiter on human rights cases?

The Secretary-General of the Council of Europe, Thorbjorn Jagland, revealed his unease about the blatant hostility directed against the Strasbourg court in many recent public utterances by British public figures.

He insisted at a joint press conference with Mr Clarke that the real problem facing the court was not that the UK had been found in breach of its human rights commitments in a handful of cases.

It was rather that so many Europeans were forced to rely on appeals to Strasbourg because their own authorities were failing to comply with basic human rights standards under their national laws, and the ways in which those laws are enforced.

Mr Clarke declared that the reforms foreseen in the Brighton Declaration would mean fewer cases being heard in the court and that serious cases would be heard much more quickly, leading – he claimed – to better overall compliance by Council of Europe states with their legal obligations under the European Convention on Human Rights.

But the current (British) President of the Strasbourg court, Sir Nicolas Bratza, disagreed with that assessment. He said that the politicians’ planned reforms would make little difference. Significant procedural changes which are already being implemented, he insisted, were on the way to having the desired effect – including the use of "pilot" judgments and shortcuts for dealing with repetitive/similar cases.

What’s more, Sir Nicolas told the ministers to their faces, the judges of the Strasbourg court do not like the idea that governments can “in some way dictate to the court” how it should carry out the judicial functions conferred on it.

Who is to be believed? Amid all the sound and fury, what’s really going on?

Backdrop to the Brighton seafront drama

What seems clear is that the fundamental issue of how the workings of the court should be improved, to protect the civil and political rights of Europe’s citizens, have been much overshadowed by a series of open quarrels over the Strasbourg court’s handling of sensitive British cases – above all the highly controversial case of the British government’s so far failed attempts to deport a Muslim cleric, Abu Qatada, to Jordan.

Abu Qatada has been branded a “threat to national security” by the UK government but has so far not been convicted of any terrorism-related offences in Britain. If returned to Jordan he would face a re-trial there on terrorist charges for which he has once been convicted in absentia.

The Strasbourg court is currently still blocking the UK’s deportation bid unless credible guarantees are shown to exist that the cleric would not be at risk of being sentenced on the basis of evidence obtained by torture.

That ruling, and the legal chess moves surrounding it, has caused something like political apoplexy among British politicians, especially many in the governing Conservative party, who stridently demand that the European court should “respect” the will of national parliaments and “interfere” less after decisions are taken by national courts or parliaments.

So the UK government has tried to walk a tightrope during the past six months while it has held the chairmanship of the Council of Europe’s Committee of Ministers. It has attempted to steer the reform debate to meet a pre-set deadline of next month for a conclusion to tortuous negotiations that have actually gone on for several years.

The Strasbourg file

The Strasbourg court receives some 30,000 individual cases a year from citizens of European states who claim that their basic Convention rights – including the right to life and to freedom of expression, and safeguards against torture, arbitrary imprisonment or an unfair trial – have been violated.

The backlog of cases now stands at more than 150,000. As a rule, 90% of all applications are found to be inadmissible, so they are never heard. The majority of all pending cases have been lodged by people in a handful of countries, among them Russia, Ukraine and Turkey. Despite several innovations aimed at speeding up procedures, serious cases still routinely take six years or more to be heard.

As expected, during the negotiations many member states showed themselves unwilling to approve radical reforms that would expose them to more embarrassment from speedy rulings in Strasbourg, or to the risk of heavier penalties, including fines, for failure to comply with judgments made there.

The reality, as detailed in the latest reports by respected organisations such as the Open Society Justice Initiative and the Committee to Protect Journalists, is that many Council of Europe states are failing to meet their obligations to uphold basic human rights or to empower an independent judiciary to provide a reliable standard of justice in their domestic courts.

Last year, Council of Europe ministers endorsed new Europe-wide guidelines on eradicating impunity, acknowledging that in some states police and other state officials routinely escape any investigation or punishment for inflicting human rights abuses on their own citizens.

Soon after Dmitry Medvedev was elected Russia’s President in 2008, he publicly acknowledged that what he called a system of “legal nihilism” prevailed in his country, Few observers believe the situation has improved since then.

 

 

 

So British ministers have pursued an agreement among 47 highly sensitive governments to improve the ability of the European Court of Human Rights to enforce their obligations on human rights standards, while conducting an ostentatious campaign to demonstrate to their own followers and the public at home that they are rolling back the unwanted intrusions of a European court.

The Brighton Declaration: An Instant Guide

Here is a basic guide to some of the main changes foreseen from the Brighton Declaration, according to the UK Chairmanship’s summary:

(1) Amending the Convention to include the principles of “subsidiarity” and the “margin of appreciation” in the preamble. UK Attorney-General Dominic Grieve presented these as significant as guidance to the Strasbourg Court judges that they should not routinely overturn decisions made by national authorities, and they should also respect different “approaches” by particular states as legitimate. The original UK ambition, as outlined in January, to introduce “measures” to bolster subsidiarity is not confirmed in the final text. Critics of the final accord say inclusion of these references in the preamble is mere tokenism Some deplore the whole idea of giving more leeway to national authorities as a recipe for less respect for human rights, not more.

(2) Tightening the “admissibility criteria” so that trivial cases can be thrown out and Strasbourg’s focus can be on serious abuses. Critics of the court had been demanding sweeping changes in this area and are dismayed at what they see as trivial gains. The court’s defenders, including its President, say they are relieved that the changes will have limited impact, and insist it was always a myth that the court wastes time on trivia. A proposal to sharply reduce the number of cases the court can consider by establishing a regular system of non-binding “advisories” instead was heavily watered down in the final text.

 (3) Reducing the time limit for claims from six months to four. With the increasing use of internet communications, this is seen by many as justified provided it is flexibly handled. The right of individual petition has been preserved, but many human rights groups, including Russian ones, oppose any new restrictions on access to the court as evidence that states seek to evade their commitments.

(4) Improving the process of selecting judges. New rules say that judges should be no older than 65 when they start their single 9-year term of office. Countries are jealous of their privilege to nominate candidates to be their national judge, of whom one is selected for the post by the Council of Europe’s Parliamentary Assembly. Disputes over the quality of judges at Strasbourg look like continuing.

Coda: The British rage against Strasbourg

It looks very much as if the “Brighton reforms” are a bit of a damp squib. They should help somewhat to reduce the backlog of cases at Strasbourg but they will not make a great difference by themselves.

Changes (1) and (2) above will require parliamentary ratification in all 47 states and amendments to the constitutions of several – a process that at best will take a couple of years.

The other conclusion from the whole saga is more dramatic: the British have been whipped by their politicians into a fever against Strasbourg that could have unforeseen consequences.

A limited but growing number of Conservative MPs have called for the UK to withdraw from the jurisdiction of the Strasbourg court, or even from the European Convention itself.

Prime Minister David Cameron went on TV as the Brighton conference was meeting to say that he “sometimes wished he could put [Abu Qatada] on a plane and deport him to Jordan” himself.

Last year, he led his party’s outright rejection of a Strasbourg court ruling that questioned the UK’s practice of denying the right to vote to all convicted prisoners in the country’s jails, saying the prospect of giving prisoners the vote made him “physically sick”.

The UK was the prime influence in the original drafting of the European Convention, and down the years it has earned great respect for the quality of the jurisprudence of its courts in interpreting the Convention, which is now enshrined in British law in an exemplary way through the Human Rights Act.

So it is remarkable that Sir Nicholas Bratza, who is due to step down as President of the ECHR later this year, was impelled some months ago to express his personal dismay at the “xenophobic fury” directed at the judges in Strasbourg by, among others, senior members of the UK government.

Has the British political elite lost its head? Many backbench Conservative MPs are openly fuming about what they see as their government’s failure to tie the hands of the Strasbourg judges more tightly.

Yet a quick look at the most authoritative account of the UK’s current and historical relationship with the ECHR – a topical and painstakingly detailed research report for the UK Equality and Human Rights Commission – amply demonstrates the constructive and respectful nature of Strasbourg’s dealings with the UK down the years.

It also gives painful details of a substantial number of landmark cases where the judges in Strasbourg corrected gross miscarriages of justice and human rights abuses by British governments, from the mistreatment of jailed IRA prisoners and attempts to stop the Sunday Times’s exposure of the thalidomide drugs scandal to more recent policies to detain terrorism suspects without charge for long periods.

Against that background it is sobering and really quite worrying that much of the British media, including all too often the BBC, have allowed themselves to be caught up in what has often sounded like a national vendetta against this “foreign” court – and especially against one hate figure, that of Abu Qatada.

One BBC reporter, David Grossman, reporting on BBC TV’s “Newsnight” programme, characterised the sense of outrage as that of a nation that gave the world the Magna Carta and habeas corpus now having to submit its human rights cases for rulings by ”a bunch of Latvian and Moldovan judges”.

What has happened to the British sense of fair play, and its vaunted political maturity in times of stress?

The week of the Brighton seafront drama has given Britons and other Europeans a lot to think about.

 

 

 

 

References

Text of the Brighton Declaration

Council of Europe web page

Council of Europe press release

Sir Nicolas Bratza, UK Judge and President of the ECHR: Draft speaking notes for the Brighton Conference

Speech by Thorbjǿrn Jagland, Secretary General of the Council of Europe

UK Ministry of Justice press release

UK Commission on a Bill of Rights:

Options for reform of the ECHR

Interim advice to the government

Joshua Rozenberg (Guardian):

Yes, criticise individual cases but Strasbourg court should develop law