What has the European Court of Human Rights ever done for us?

The Court of Human Rights has a bad press in Britain – but for thousands of desperate people it is their last shot at justice

Terri Judd
Monday 14 January 2013 19:47
Left to right: A gay rights activist, Nadia Eweida, and Abu Hamza
Left to right: A gay rights activist, Nadia Eweida, and Abu Hamza

He arrived in Strasbourg with a suitcase hiding a jerry can of petrol and made his way across town to the glistening glass finery of the European Court of Human Rights where he doused himself in the flammable liquid and pulled out a lighter.

A Romanian immigrant living in Germany, he had lost his job, his home and custody of his children. Public self-immolation was his last frantic bid for justice.

Unbeknownst to the unfortunate man, he had chosen his moment of action ill advisedly, two days before President Barack Obama's visit to the NATO summit and within seconds teams of snipers and trained negotiators surrounded him. But he wanted to talk to the official in the suit, Rod Liddell, the court's Director of Common Services. Mr Liddell asked him to produce his documents and, in doing so, he put down the lighter and the SWAT team pounced.

Outside the court this week, a few small tents being pounded by icy rain had become home to another group pleading for help. They are just the extreme tip of an iceberg of tens of thousands of people who turn to the “Conscience of Europe” in despair each year.

The judges at Strasbourg may have become the whipping boys of British politicians and the popular press but to most of the 819 million population of its 47 member states the court remains a beacon of hope, a last gasp attempt at justice, often from states where human rights laws are shaky at best.

The magnitude of the task in hand was most evident in the Central Office where a multi-lingual team were sifting through the afternoon's post of a 1,500 letters. Mostly hand written, in 41 different languages, many were pages long in tight, almost illegible script. Staff must swiftly identify cases that require urgent action from this haystack of mail before responding to every letter with an application to the court.

The right of individual petition is paramount and this, an officer explained, is the one place in Europe citizens can come to challenge their government. “It is there for everyone from an illiterate 70-year-old Turkish man drafted into the army to Princess Caroline of Monaco (over press privacy),” explained press officer Tracey Turner-Tretz.

In the Central Office alone, row upon row of filing cabinets contained 77,000 applications and these are just the ones that have yet to reach the judicial stage of deciding whether they are admissible. As many as 14,000 are destroyed each year when completed application forms are not received. More than 90 per cent of the rest will be declared inadmissible as applicants have failed to exhaust all domestic remedies or their case is considered unfounded.

Yet, so many contained heart-rending stories. Across one in bold capitals was written PLEASE HELP ME, while another spoke of suicide. “The sentiment of injustice is one of the most violently strong feelings you can have,” sympathised Mr Liddell.

The court has become a lightning rod for the desperate, the disenfranchised and even the despotic. The court staff remember one urgent request from a man in 2006, who was trying to get an interim measure to stop his hand over by coalition forces to the Iraqis as he feared execution. The man was Saddam Hussein.

Downstairs, the archives contained 8km of shelves of cases dating back to the court’s inception in the 1950s. On the wall was Rene Cassin’s first, heavily annotated, draft of part of the Universal Declaration of Human Rights, written at a time when the horror of concentration camps was a still fresh in everyone’s minds, as was the need to ensure such atrocities never happened again.

Six decades on much of the continent has become a more comfortable place and in Great Britain, as one official put it, ‘human rights’ is a dirty phrase, almost as unclean as ‘Europe’.

The mere mention of the UK elicits shrugs and pained expressions. The outgoing President of the court Sir Nicolas Bratza put in more bluntly. Writing in The Independent recently, he described his frustration and disappointment that the ECHR had become a “hate figure” in his own country, adding: “To my profound regret Britain is, of the 47 countries in which the court’s jurisdiction runs, the one in which the court is most regularly and overtly criticised.”

The new president Dean Spielmann, 50, is more tactful: “I would emphasise that the UK has played a major role in the setting up of the court and the European Convention on Human Rights. The first president of the court was among many very eminent British lawyers who have been instrumental in setting up the system and we do not forget that.”

It is an ironic situation bearing in mind Britain has an enviable reputation for human rights with less than 3 per cent of applications considered admissible and of those, just half succeed. Last year the court dealt with 955 applications from the UK, of which only 19 were considered admissible and eight were ruled a violation of the convention.

The vast majority of the Rule 39 urgent applications relate to asylum seekers facing immediate deportation. Unless there is an “irreversible risk of harm” they are rejected, as are 95 per cent from Britain.

“If you have Supreme Court judges who take the European Convention on Human Rights as seriously as it is done in Britain, it is much more unlikely that the court finds violations because the job has been done on a national level,” explained President Spielmann.

Only issues that require “fine tuning” ever reach Strasbourg and, as a result, they are likely to be the most contentious.

Just such a controversial issue will be ruled on tomorrow when they return a judgement in the case of British Airways worker Nadia Eweida and NHS nurse Shirley Chaplin, who complained they could not wear crucifixes at work as well as marriage counsellor Gary McFarlane and registrar Lillian Ladele who were disciplined for refusing to deal with same sex couples. The four Christians has divided opinion in the UK and whatever the ruling, it is likely to be met with heated debate.

Another equally controversial case appeared recently before the imposing splendour of the court's Grand Chamber, its glass surroundings, designed by the British architect Richard Rogers, intended to reflect transparency of proceedings.

Before a public gallery packed with more than 100 observers as well as special delegations from Turkey and Italy, 17 judges clad in black robes and blue sashes settled in to decide the case brought by three of Britain's multiple murderers – including the infamous Jeremy Bamber – that a whole life tariff without chance of release except when close to death was inhuman and degrading in breach of article 3 of the convention.

In court their QC Peter Weatherby argued it “crushed human dignity”, adding: “We don't say that these applicants should necessarily ever be released, just that they should not have all prospect of future release taken away at the outset of their sentence.”

It is a difficult case and one which the court initially found in favour of the British government, but only by a slim majority of four to three so it was now before the appeal of the Grand Chamber. It is just such a case that will cause an outcry if the court rules for the murderers.

Most in Britain would undoubtedly understand why the judges found violations in favour of the 14-year-old pregnant Polish rape victim who was harassed by police and cut off from her family, the Slovakian Roma woman who was sterilised without her consent or the orphaned Burundian sisters – aged 16 and ten – who were forced into labour in France. They might sympathise with the Armenian opposition activist who was tortured in police custody or the Chechen teacher who was arrested for handing out drinking water and had red hot nails pressed into his nostrils and the derogatory term ‘Chichik” carved on his forehead.

But several of Britain’s most high profile recent cases relate to terrorists and murderers and rely on the notion that adherence to human rights means that not only the deserving, but the seemingly undeserving, are entitled to fair treatment.

Right now the key chasm between the court and the British government is the issue of prisoner voting rights. The court currently has 2,360 prisoner cases from Britain on hold until it sees if the country observes its legal obligation to abide by a ruling that a blanket ban on voting rights (only matched by Armenia, Bulgaria, Estonia, Georgia and Russia) is unacceptable.

Once again it is the fine print that has been lost in translation, officials explained in exasperated tones. The court is not suggesting mass murderers should be entitled to vote simply that a total ban on every prisoner is unfair.

President Spielmann acknowledged the case was going through a “difficult phase” but added: “I am confident and hopeful our judgement will be implemented. According to the principles of rule of law, there is no option. This judgment needs to be implemented.”

“The UK signed up to the convention. It agreed to comply with the judgments of the European court. Not just those with which we agree but all of them,” wrote Lord Pannick QC recently. “We cannot expect other countries to abide by their international obligations if we refuse to accept the judgments of the European court.”

Draft legislation now offers three options, giving the vote to prisoners serving up to six months, or those serving up to four years or defying the court and maintaining the ban.

Yet Prime Minister David Cameron declared that merely contemplating giving prisoners the vote made him “physically ill” and the issue has led to MPs accusing Strasbourg of being a “Mickey Mouse court” and calls for Britain to withdraw from the European Convention on Human Rights altogether – a move that would leave it in the dubious company of Belarus alone.

For now the court’s clash with the UK may be the least of its problems. A victim of its own success it has seen its case load rocket and has recently been on a major drive to clear the backlog, streamlining cases before a single judge instead of three and prioritising the most serious violations or those relating to complex case law. As a result it will have disposed of 70,000 cases by the end of this year with the number pending dropping from 161,000 to 132,000.

With a budget of just Euros 65 million a year from the Council of Europe – with Britain one of its five big contributors at 12 per cent of the annual budget - it cannot afford to be anything but strict in the applications it agrees to accept, rejecting the hopeless ones immediately.

“Human rights protection has its price,” said President Spielmann while acknowledging that it was a “delicate balance” between “making this court even more efficient by reducing the backlog at the same time preserving the right of the individual applicant, which is the cornerstone of the system”.

Looking around an office full of letters – each one containing a tale of personal misery – the efficiency drive seemed almost brutal, but as one officer explained: “It is the only way the system can survive.”

European Court of Human Rights timeline

November 1950

The European Convention on Human Rights - the first international legal instrument guaranteeing the protection of human rights - is signed at a time when the horror of concentration camps was a still fresh in everyone’s minds. The European Court of Human Rights begins workin 1959.

November 1960

The Court delivers its first judgment, in the case of Gerard Richard Lawless, a former IRA member arrested under special powers of indefinite detention. His claim of breaches of rights to liberty, security and fair trial is dismissed because emergency legislation was used.

October 1981

The first successful gay case is brought by Jeff Dudgeon, after he was interrogated by the Royal Ulster Constabulary about his sexual activities. The court found Northern Ireland’s criminalisation of homosexual acts between consenting adults was a violation of the convention. As a result, male homosexual sex was decriminalised in October 1982.

September 1995

The court issues its judgment in the Death on the Rock case, condemning the SAS killing of three IRA terrorists who had been planning a bombing in Gibraltar. The court ruled the soldiers acted proportionately as they believed the suspects were reaching for detonators – but condemned the authorities for failing to arrest the suspects previously.

September 1998

In a decision on corporal punishment, the court unanimously finds that the beating of a young boy with a wooden cane by his stepfather was not “reasonable chastisement”, as a UK jury had found, but constituted “inhuman or degrading punishment”. As a result, the UK Government announces that it will legislate to give children better protection.

December 1999

The court rules in favour of two gay men, finding that investigation and discharge from the military was in breach of their right to a private life. The decision, which caused controversy at the time, led to gay personnel being able to serve openly in the armed forces. The Ministry of Defence has since concluded that the policy has “been hailed as a solid achievement” and apologised to those previously affected.

April 2012

The court backs the extradition of Abu Hamza and four other terror suspects to the US saying there would be no violation of human rights for those facing life and solitary confinement in a “supermax” prison.

September 2012

Four Christians take their landmark case claiming discrimination in the workplace due to their religion. British Airways worker Nadia Eweida and NHS nurse Shirley Chaplin complained that uniform policies interfered with their right to wear a crucifix while marriage counsellor Gary McFarlane and registrar Lillian Ladele were disciplined for refusing to deal with same sex couples. The judgment is due tomorrow.

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