“We have an ambitious agenda.” Cameron and the ECHR

On a late-night train to far-flung Udmurtia in my spring holidays last year, my compartment heaves with young people from Yaroslavl fresh from their first trip to Europe. They enthusiastically share their pictures of Prague, Berlin and Paris, especially so with a stoic, middle-aged man travelling to Novosibirsk. A late blooming court registrar, he had never travelled abroad nor betrays much interest in their tales, often laced with marvel at continental prices. He does though concede that if there were one place he would see in Europe, it would be Strasbourg. Home to the European Court of Human Rights, the pinnacle of his legal profession, the sole sight he deems worth seeing on a continent whose architecture he authoritatively claims is irrelevant.

Fast-forward ten months, and concluding a semester abroad in Strasbourg, I witness an infrequent public hearing at the European Court of Human Rights. The case heard today is Catan and 27 Others v. Republic of Moldova and Russia(Application nos. 43370/04, 8252/05 and 18454/06), brought forward by Moldovan nationals in relation to the prohibition of the use of Latin script in schools of the non-recognised “Moldovan Republic of Transdnistria.” The applicants’ counsel cites tales of ripped textbooks, militias on school grounds, arrests of teachers and school closures, as examples of violations of Article 8 (right to respect for private and family life), Article 14 (prohibition of discrimination) and Article 2 of Protocol 1 (right to education). It implicates the Russian military presence and its political and economic leverage over the Transdnistrian government, and accuses the Moldovan government of inaction on a matter lying within its jurisdiction, regardless of constraints to its sovereignty. The Moldovan agent decries its limited options in an occupied area of its territory, while the Russian defence downplays its level of influence over the region.

Later that day, I take my place in the public galleys of the Council of Europe’s Parliamentary Assembly to hear David Cameron set out the United Kingdom’s plans for its rotating chairmanship, namely reform of the ECHR. Despite all the warning signs in the build-up, he says surprisingly little wrong, other than frustrating me with his petty description of a “small claims court” and tentatively alluded to proposals. Upon returning to the ALDE office and learning of the true undertones of his speech in the Guardian’s extensive coverage, lobbied on the inside and unbeknown to most of us, does my wariness evolve into genuine discomfort and concern.

Prior to arriving in Strasbourg, my knowledge of European mechanisms for the protection of human rights was embarrassingly limited. But after a semester of sustained access to the city’s European institutions, including a traineeship within the Parliamentary Assembly, and appropriate studies at the University of Strasbourg, I can now claim to have furthered my understanding, and fundamentally, appreciation of the Court’s achievements.

In no small part was this due to Florence Benoit-Rohmer, President of the Robert Schumann University and leading expert on European law, who I had the privilege of being lectured by during my course on the European Convention of Human Rights. She described the latter as the “most accomplished model of international protection of human rights,” singling out its enforcer, the Court, as the only supranational tribunal in the world with the powers to sanction states for failing their citizens’ fundamental liberties. The Convention has induced a revolution in international legal practice, having safeguarded the right to individual recourse. Most significantly of all, she stressed that it was a document vivant, drawn in the midst of Europe’s totalitarian scourge yet continually evolving in tune with contemporary Europe, setting basic and uniform principles across the continent.

Ever since the introduction of Protocol 11 in 1998, suppressing the Commission on Human Rights and enshrining the right to individual petition, the Court’s status as the ultimate moral and legal guardian of Europe has been consolidated. The easing of constraints upon recourse, and more importantly the Council of Europe’s expansion into areas of the continent with markedly poorer political and legal conditions, have over the space of thirteen years multiplied by twelve the number of yearly applications and brought huge pressures to an institution running on a shoestring budget. A “victim of its own success” would say its supporters, among them Benoit-Rohmer and myself. But the stark reality of the backlog of cases, permanently and unfairly overshadowing the Court’s singular imprints on forty-seven varying societies and judicial traditions, does undermine transparency and the right to a fair and due process, the very values the Court is to exemplify. Unfortunately, the British chairmanship’s apparent proposals to speed up the efficiency drive all but intend to roll back the advances of the last fourteen years, in the interest of naked political gain rather than “enhance human rights, freedom and dignity” on a national and European level.

Not all of the United Kingdom’s proposals are without merit, tabled suggestions for strengthening the Committee of Ministers’ role in enforcing judgments and revamping national selection procedures for judges such examples. Otherwise, the agenda of its chairmanship since November has been flawed and misguided from the offset. On January 26th, David Cameron claimed the Court had simply “too much to do,” by which he appeared to insinuate two things. On the one hand, he wanted to tackle the Court’s notorious backlog. Early negotiations revolved around the idea of a sunset clause, which would have stricken off any unattended to application 1-2 years after its receipt, and allegedly, the notion of charging claimants. Now these appear to have been binned, in favour of a proposal to reduce the 6-month limit for applications. All of these though disregard the impact of Protocol 14, ostensibly introduced to reduce the pressures on the Court. Two years after its introduction, steady progress has been made towards clearing the backlog as scheduled by 2015. Nor do they acknowledge, particularly in connection to talk of revising admissibility criteria, that a significant reason for the pileup is that member states, particularly the easternmost ones, repeatedly ignore the Court’s rulings.

On the other hand, it is hard to adjudge the United Kingdom’s intentions as anything but political, seeking to diminish the Court’s standing. A central plank of the plans for the Brighton Conference is enshrining, in writing, subsidiarity and margin of appreciation at the heart of the Convention. At first this would seem irrelevant, given that such principles have always pervaded throughout the Court’s more sensitive rulings, as on abortion, homosexuality and role of faith. But as Cameron declared in the Parliamentary Assembly, “if an issue has been subjected to proper, reasoned democratic debate…and has also met with detailed scrutiny in national courts in line with the Convention…the decision made at a national level should be treated with respect.” On paper there is nothing wrong with this, for the Court safeguards the role of national judiciaries and may only be referred to at the final hurdle. However, as seen in leaked drafts for Brighton, the ECHR would only take on a case if a national court was found to have “clearly erred” in its judgment or clearly misinterpreted the Convention, otherwise providing its conclusions for national proceedings of relevant interest. To what degree a judgment may be defined as clearly errant or a misinterpretation of the Convention, and the appropriate extent to which a court would have to seek out the judges’ counsel, is as now stands up to anyone’s imagination, and in serious breach of Strasbourg’s autonomy to decide on a case’s admissibility and the right to individual recourse, available to anyone who has exhausted every possible judicial avenue at home. Cameron claims this would “free up the Court to concentrate on the worst, most flagrant human rights violations.” But by that, he would imply the ECHR concentrating on the likes of Russia, Turkey, Ukraine and Romania, who are accountable for the bulk of submitted requests, and exempting others such as Britain, with spotless judicial systems as he leads us to believe, for preferential treatment. This so-called “twin-track” system would doubtlessly undermine the notion of a Court, and Convention, for all of Europe.

So why, boasting a near-perfect record at implementing the Court’s rulings, would we be this hell-bent on rolling back its authority? After all, only 1% of all cases against the United Kingdom succeed, 97% are pre-dismissed and in 2011 it was condemned on only 8 occasions. As the rows over Abu Qatada and voting rights for prisoners show, we are determined to avoid the recurrence of those few embarrassing cases, illustrating all too well the shortcomings of even our courts, and ever so opportunistically exploited to tap into popular sentiment. Cameron alleges the Court is in danger of having a “corrosive effect on people’s support for human rights.” No, it is rather a jumble of the right-wing press fanning the flames of ignorance, our God-given insularity and love of all things foreign, especially judges, and eternal confusion over the Human Rights Act. The Prime Minister told the Parliamentary Assembly a “lively debate about the way human rights law works, and how our own national courts with Europe” was going on in Britain. Nonsense, who is it to say that British society is sufficiently informed, impassioned and engaged to form a valid answer to any of the two. A small claims court? One which has ruled on corporal punishment in schools, the indefinite retention of innocent citizens’ DNA records, handling of terror suspects, gays serving in the military, press freedom and lawfulness of counter-terrorism measures? It is easy to forget all and talk up ridiculous submittals such as the Bucharest-Madrid “reclining seat-less coach trip” and concoct wild tales of deportations being held up by the ownership of a cat. Perhaps it is a case of our common law being so sacrosanct; but the Court is not there to discredit it. It does not strive to construct a uniform judicial sphere stretching from London to Baku, but merely ensure the respect for basic and universal liberties within the Council of Europe’s limits. It is not an immigration tribunal nor a refund dispenser. Its decisions may not be palatable to us all, as a recent ruling on kettling showed to me. But it is a necessary and final manifestation of the rule of law in Europe.

Representatives from across the Council of Europe will gather in Brighton on April 20th to debate the Court’s future. Foreign ministers will meet the following month in Strasbourg. UK ministers are confident of thrashing out a deal, but it is hard to tell if the likes of Azerbaijan and Ukraine will be on board. What is most troubling, is that similarly to the discussions on a British Bill of Rights, the negotiations have been enveloped in a cloak of secrecy, relevant stakeholders such as civil society and press from across the continent shut out. On the cusp, most potentially, of a decision on the future of the single most important piece of human rights legislation in the world, backdoor, late-night deals may well depressingly swing the balance.

The United Kingdom was the first to sign the European Convention on Human Rights, and long one of its most faithful adherents. Suggestions have emerged that if Cameron were not to get his way, and the chance for reforming the Court along his lines thus evaporate for the foreseeable future, he could threaten to withdraw from the Convention at the next general election; some gift for Tory England. It would though be an unmitigated disaster, further diluting Britain’s international influence and trashing its so-deemed reputation as a foremost promoter of human rights, no matter how many Ken Clarkes will be at the cabinet table. It was Churchill who provided the inspiration for a supreme judicial authority of the “United States on Europe,” founded on values stemming from the Universal Declaration of Human Rights and holding European states to account. Cameron was quick to set off his address to the Parliamentary Assembly with some Winston, stating those gathered were”here not as representatives of our different countries or parties.” How unfortunate then that Cameron does his vision for Europe a disservice.

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