Note to British MPs: think before criticising the European Court

A growing appetite to limit the jurisdiction of the European Court of Human Rights has emerged among British MPs. Their criticism is mistaken, and undermines the very important work the Court does in areas like Chechnya, says Philip Leach.

I cannot recall a time when the European Court of Human Rights has come under such intense criticism from senior politicians in the UK. The former Justice Minister, Nick Herbert MP, recently called for the UK’s withdrawal from the jurisdiction of the court (though this is not official Government policy). The majority of the Commission on a Bill of Rights (which reported in December) also believe that the time is ripe for a UK Bill of Rights. Two members, Baroness Helena Kennedy and Professor Philippe Sands, oppose it — the justifiable concerns are that such a move could in fact lead to a diminution in rights and that it would be, for some, a prelude to withdrawal from the European Convention on Human Rights.

Baroness Helena Kennedy at the Convention on Modern Liberty in 2009. Photo: (cc) Convention on Modern Liberty

What is more, the long-term stand-off over prisoner voting rights has led to the UK being in breach of the Human Rights Convention, having failed to implement judgments going back to 2005. It is also deplorable that leading Conservatives have made statements the effect of which is explicitly to negate the rule of law. Prime Minister David Cameron told the House of Commons in October that prisoners would not get the vote under his government. In November, the Lord Chancellor Chris Grayling MP told the Select Committee on the Constitution that parliamentary sovereignty ‘supersedes’ the rulings of the European Court.

‘In a number of countries, systemic human rights problems remain unresolved, in spite of repeated judgments from the European Court. What we certainly do not need is for political leaders to justify their failings with reference to the hostile British position.’

Much of the current criticism of the Court from British politicians is, in my view, misguided and exaggerated (and some of it downright mischievous). Moreover, there is an obvious danger that it will be picked up and used by other European Governments to justify their non-compliance with, or even outright rejection of, the European Court’s decisions. The concomitant risks of such criticisms damaging the UK’s reputation, and weakening the status of the Court, were discussed in a report published by the Equality and Human Rights Commission in 2012. In a number of European countries, large-scale systemic human rights problems remain unresolved over many years, in spite of repeated judgments from the European Court. What we certainly do not need is for political leaders in Europe to justify their failings with reference to the hostile British position.

Nowhere is this danger more apparent than in Russia. In January 2012, Russia became the subject of a second ‘pilot judgment’ from the European Court – one which explicitly recognises a widespread problem and calls for changes in the national law or policy to resolve it.  The case of Ananyev v Russia concerns the appalling state of Russia’s pre-trial remand centres. Going back ten years, since Kalashnikov v Russia, the Court’s first judgment against Russia, the Court has produced 80 similar judgments, and there are another 250 such cases pending. People held on remand have to suffer conditions that are simply inhuman – overcrowding, not having a place to sleep, little or no natural light or air and no privacy at all. In October, in response to the Ananyev judgment, the Russian authorities submitted an ‘action plan’ to the Committee of Ministers of the Council of Europe, setting out what changes to the penitentiary system it proposes to make. Although some reforms are envisaged for 2013, it seems that others will take a further four more years. This is distressing and unacceptable, especially given that these issues have been evident for so many years.

It is the Committee of Ministers whose role it is to ensure that judgments are implemented – an absolutely pivotal function, but one which too often, in the ‘difficult’ cases, fails. The system is based on peer pressure, and depends on the willingness of European states to exert concerted pressure, especially in the face of persistent recalcitrance. The current hostility towards the Convention system emanating from some British political leaders will only serve to further undermine this situation, and the result will be that victims of human rights violations in Europe will suffer for longer, and they may be denied justice and redress.

‘In spite of the huge obstacles which the victims’ families face, the European Court has consistently found in their favour, holding the Russian authorities directly responsible for violating the right to life or the prohibition against torture.’

It is not the European Court failing its mandate that is the problem (as some commentators in the UK would have us believe), but rather that European states are unwilling to fulfil their responsibility to act collectively to enforce the Convention (a duty which its preamble records). Take the case of Chechnya. Since 2005, the Court has produced more than 200 judgments which document a litany of grave abuses by the Russian security forces in the North Caucasus – notably, cases of torture, disappearances and extra-judicial executions. In spite of the huge obstacles which the victims’ families face in bringing their cases to an international tribunal, the European Court has consistently found in their favour, holding the Russian authorities directly responsible for violating the right to life or the prohibition against torture. In the last month, the Court published a landmark decision in the Aslakhanova case in which it explicitly recognised that there are widespread and systemic dysfunctions in the North Caucasus. Significantly, the Court called for the urgent implementation of ‘comprehensive and complex measures’ by the Russian authorities, concerning the ineffectiveness of domestic investigations and recognising the suffering of the relatives of the victims of disappearances in particular.

What of the follow-up to these appalling human rights violations in Chechnya? What is the response of other Council of Europe governments to disappearances and extra-judicial executions repeatedly being perpetrated by one of its members? These cases have come before the Committee of Ministers since 2005, but very little progress has been made, for example, in ensuring that such cases are now the subject of effective investigations. In the last year and a half, two NGOs, Memorial and the European Human Rights Advocacy Centre (EHRAC), have been pushing for the use of a new inter-governmental mechanism – infringement proceedings – to highlight this situation. However, as yet, no state seems to have the guts to challenge Russia over Chechnya.  

The impact of the European Court is felt most acutely in the undemocractic regions of the North Caucasus, where the Court has acquired almost mythical status. Photo: (cc) Flickr/Lorebonosi

The Court is doing its job, but governments are not, and the system needs to be reformed. The declaration agreed by Council of Europe governments in Brighton in April 2012 provides a clear mandate to strengthen the system to ensure that European Court judgments are fully and swiftly implemented. Although reforms have not yet materialised, it was encouraging that at a meeting in Strasbourg in November diplomats were acknowledging the need for change. We owe it to the subjects of secret rendition, to the victims of domestic violence and human trafficking, to people languishing in inhuman prisons, and many others, to ensure that we maintain a strong and independent human rights court for the whole of Europe.

 

About the author

Philip Leach is Professor of Human Rights Law at Middlesex University and Director of the European Human Rights Advocacy Centre