The European Court of Human Rights (ECtHR) is one of the icons of democracy, liberty and respect for individuals in Europe. The issues of the Court’s jurisdiction are so important that it is a requirement for countries that want to become member states of the European Union to fulfill and respect the rights and obligations recognised in the European Convention of Human Rights (ECHR). The UK has nevertheless drafted a number of proposals that apparently have the aim of boycotting the ECtHR and making it difficult for individuals to bring cases before it.
According to Diogo Pinto, the secretary-general of European Movement, an NGO based in Brussels, these proposals intend to weaken the ECtHR and give to the national courts the power to decide which cases are to be reviewed by the Court and to the governments greater freedom in applying its verdicts. Mr. Pinto, interviewed by EU Observer in April, expressed his worries that this would violate Article 34 of the European Convention on Human Rights, which gives individuals the right to apply to the court. According to Article 34: “The court may receive applications from any person, non-governmental organisation or group of individuals claiming to be the victim of a violation by one of the High Contracting Parties of the rights set forth in the Convention or the Protocols thereto. The High Contracting Parties undertake not to hinder in any way the effective exercise of this right.”
The draft proposals also put forward that the “margin of appreciation”, i.e. a doctrine developed by the ECtHR when considering whether a High Contracting Party has violated the European Convention on Human Rights, should be changed. EU Observer reports that the UK would make the Court into more of an advisory body and would broaden the national powers over it. The proposal furthermore consists in tweaking the admissibility criteria found in Article 35 ECHR, making it more difficult for individuals to bring claims to the Court. This Article regulates when and under what circumstances the ECtHR may deal with a matter brought before it. Article 35(1) provides that the ECtHR “may only deal with the matter after all domestic remedies have been exhausted, (…) and within a period of six months from the date on which the final decision was taken.” Proposals like the one presented by the UK, relating among others to procedural measures, are typically used when a state wants to limit the access to a Court, which could be seen as a denial of substantial rights. It could furthermore be argued that establishing e.g. new procedural rules is a political maneuver to avoid the appreciation of substantial rights, due to the fact that the newly proposed procedural rules prevail over the substance of the Convention. How can that make sense considering that it is about human rights?
The future of the ECtHR and other ideas proposed by the United Kingdom have been discussed by ministers and senior representatives of the Council of Europe at a conference in Brighton, UK, on 19 and 20 April 2012. The result was the adoption of the so-called Brighton Declaration in which the Conference welcomed the suggestion that the time limit under Article 35(1) of the Convention could be shortened, by the end of 2013, from six to four months. The Conference furthermore asserted that it is vital to secure the future effectiveness of the Convention system, and that in order to achieve this a process anticipating the challenges ahead is needed, as well as a development of a vision for the future of the Convention. The objective is to take decisions in a coherent and timely manner. The long-term vision must however secure the viability of the ECtHR’s important role in protecting and promoting human rights in Europe, in which the right of individuals to bring cases before the Court is and remains a cornerstone of the Convention system.
The strong commitment of the High Contracting Parties to implement the Convention at national level, i.e. to fulfill their primary responsibility, was also affirmed at the conference held in Brighton. Member States were furthermore strongly encouraged to continue to take full account of the recommendations of the Committee of Ministers on the implementation of the ECHR and to give effect to it in their development of legislation, policies and practices at the national-level. It is indeed important to implement the Convention at national level just as much as it is important to have an independent Court, hence the ECtHR is the last recourse for victims of human rights abuses.
The high-profile case involving Omar Mogamud Othman (Abu Qatada), decided by the ECtHR on 17 January 2012, clearly shows what the intention of the UK proposal is and its potentially dangerous outcome. Mr. Othman, a Jordanian citizen, who first was detained under anti-terrorism law in 2002, was accused for being involved with the al-Qaida. In 2009 the House of Lords had unanimously ruled that a deportation would take place, stating that Othman should be sent to Jordan. This judgment was however overruled by the ECtHR which declared, in a unanimous ruling, that the UK could not deport Othman to Jordan based on the fact that there was a risk of him being subjected to torture. The UK authority decided to ignore the judgment and re-arrested Othman in 2012 planning to send him back to his native country. The British government claimed that they had a memorandum of understanding with the Jordanian authorities, that Othman would not be subjected to torture and would receive a fair trial, which would insure his safety.
The fact that the UK overruled a decision of the ECtHR in many ways undermines the status of the Court. The ECtHR deals with sensitive areas in the law which require a great amount of caution. Exercising authority over its judgment can lead to severe consequences. Other member states could be encouraged to disregard judgments from the ECtHR. The UK government argued that Othman composed a threat to national security and that he had strong links to al-Qaida, according to the Prevention of Terrorism Act they are entitled to deport him. The Court disagreed on this matter saying that the safety of Othman ought to be prioritised.
The above mentioned UK proposal and actions in the Abu Qatada case clearly show that not all Council of Europe member states respect the rule of law, while on paper they are all presumed to implement the European Convention on Human Rights in good faith. Many human rights defenders find that the British position to the ECtHR is similar to the Russian one, it seems however that the British reasoning is more “legitimate”. As Mr. Pinto pointed out “Russia is the elephant in the room and … the British chairmanship is doing the work for them”.
Mathieu Delsol, Marijela Kokalovic, Airton Valente, and Samiya Warsame