Europe's top judge: Cameron is wrong about human rights


Nigel Morris,Jerome Taylor
Tuesday 24 January 2012 01:00 GMT
Sir Nicolas Bratza, president of the European Court of Human Rights, has criticised David Cameron for his comments about the institution's 'interference'
Sir Nicolas Bratza, president of the European Court of Human Rights, has criticised David Cameron for his comments about the institution's 'interference'

Europe's most senior judge launches an attack on David Cameron today, accusing the British Government of pandering to the tabloid press in its criticism of the European Court of Human Rights.

Writing in The Independent on the eve of the Prime Minister's visit to Strasbourg, where the court is based, its president, Sir Nicolas Bratza, says "senior British politicians" have betrayed their ignorance of the institution's history and legal position by joining the clamour for its reform.

Sir Nicolas's highly unusual intervention comes as the Prime Minister prepares to deliver a speech calling for sweeping changes to the court's operation. Mr Cameron will call for a "filtering system" to prevent cases properly resolved in national courts from being referred to Strasbourg and for an overhaul of how judges are appointed.

Ministers are angry that the court – which was set up in the aftermath of the Second World War – last week blocked the deportation of the radical preacher Abu Qatada to Jordon, where he is wanted on terrorist charges. The Government – backed by opposition parties – is also wrangling with the court over whether prisoners should be given the right to vote. Mr Cameron is under pressure from Tory backbenchers to withdraw completely from the court.

But Sir Nicolas, Britain's nominee to the court, insists the institution's influence on human rights in Britain has been "overwhelmingly positive". Writing in The Independent today, he defends the court's record, citing "landmark rulings" that lifted the ban on homosexuals serving in the armed forces, allowed the media to challenge restrictions in reporting the Thalidomide case and ensured child criminals were not tried in adult courts.

He directly addresses Mr Cameron's charge that the court has allowed too large a backlog of cases to build up, saying the numbers of states signing up to the European Convention on Human Rights has led to a "massive increase in its caseload".

Sir Nicolas also hits back at the Government's accusation that the court interferes too often in domestic cases, saying: "The criticism relating to interference is simply not borne out by the facts."

The Strasbourg court has been "particularly respectful of decisions" in Britain since the Human Rights Act, which enshrined the Convention in British law, because of the "very high quality of those decisions", he says. Sir Nicolas says the court has streamlined its procedures to help it deal with "repetitive cases".

He says: "Against this background, it is disappointing to hear senior British politicians lending their voices to criticisms more frequently heard in the popular press, often based on a misunderstanding of the court's role and history, and of the legal issues at stake.

"It is particularly unfortunate that a single judgment of the court on a case relating to UK prisoners' voting rights, which was delivered in 2005 and has still not been implemented, has been used as the springboard for a sustained attack on the court and has led to repeated calls for the granting of powers of Parliament to override judgments of the court against the UK, and even for the withdrawal of the UK from the Convention."

His comments reflect growing frustration in Strasbourg at the rhetoric directed at the court from Britain. Earlier this month, Tory MPs claimed that the UK loses three out of four cases it fights in the court.

But the real figure is 61 per cent, one of the lowest "violation rates" of any European country. France, Germany, Italy and Norway all lose a significantly larger proportion of cases. Britain's real violation rate is actually closer to 2 per cent because 97 per cent of British cases that come before the court are thrown out altogether.

* Europe's top judge: Cameron is wrong about human rights
* Nicolas Bratza: Britain should be defending European justice, not attacking it
* Leading article: Mr Cameron must act the statesman in Strasbourg

Case study

Chris Morris, a 32-year-old lifestyle coach, was just 16 when he and other teenagers went to the European Court of Human Rights to challenge Britain's age-of-consent rules. They won, resulting in legislation that eventually equalised the age of consent for both gay and straight people.

"In my specific case, the European Court of Human Rights was vital. There was such public confusion over the age of consent. Politicians didn't want to take sides. But as soon as it became clear that the court was going to make a decision anyway, the politicians suddenly aligned themselves behind what was going to happen. It's unbelievable to think how recent the campaign was. Sometimes I look at young gay people now and think, wow, it really is a different world for them. What the court did was make it a much higher-profile cause and a clear human-rights issue. It sent out the message that this is what a civilised country should be doing. I could no longer be put in prison for what my straight friends were doing."

Case histories: what the Court of Human Rights has done for us

1972 Tyrer vs UK

Anthony Tyrer was 15 years old when he was legally flogged by police officers on the Isle of Man for assaulting a fellow schoolboy. The case went to Strasbourg where judges ruled that such punishment was "inhuman or degrading". At the time the decision was met with outrage yet one would be hard pressed to find European law enforcement agencies that still advocate judicially sanctioned beatings for criminals.

1979 The Sunday Times vs UK

Were it not for the European Court of Human Rights the true extent of the thalidomide scandal might never have been uncovered. Marketed as a cure for morning sickness, thalidomide caused thousands of children to be born with shortened limbs – the drug had never been tested properly.

The Sunday Times newspaper wanted to publish an investigative expose of the scandal but was halted by an injunction from the House of Lords because the makers of thalidomide were still being sued by its victims at the time. The ECHR later ruled that the injunction was a breach of Article 10 – the right to freedom of expression – because it was disproportionate and unnecessary. The decision directly led to a radical reworking of Britain's contempt of court laws.

2009 FT and others vs UK

Protection of sources is a cornerstone of journalism. But governments and businesses often go to extreme lengths to try and force reporters to reveal the identities of whistleblowers. In 2001 The Financial Times and four other media organisations – including The Independent – were taken to court by the Belgian company Interbrew and ordered to hand over documents concerning a confidential takeover bid. The British courts repeatedly sided with Interbrew. The case eventually wound its way to Strasbourg where – eight years later – judges ruled that giving up a source would breach the right to freedom of expression.

1996 Sutherland and Morris vs UK

In 1996 the ECHR ruled that it was discriminatory to have a different age of consent for gay men and women. Previous attempts to challenge such discrimination had failed until gay activists Euan Sutherland and

Chris Morris challenged Britain's laws which insisted homosexuals wait until 18 before they could legally have sex compared to 16 for straight men and women.

2011 Abu Qatada vs UK

Last week a ruling that radical Islamist cleric Abu Qatada could not be deported to Jordan was met with howls of derision by the popular press and politicians. Yet Qatada's deportation was not halted because judges feared he would be mistreated by the Jordanians – the judges, in fact, accepted that Britain had obtained diplomatic assurances that he would be unharmed. What they could not allow was the deportation of a man who would be tried by the Jordanians using evidence that had undoubtedly been obtained through torture. Given Britain's commitment to neither practising nor encouraging torture, the court ruled that any deportation of Qatada would result in a trial that would be "not only immoral and illegal, but also entirely unreliable in its outcome".

2011 Bamber & others vs UK

On the same day the court ruled on Abu Qatada, Strasbourg published an equally significant verdict in which judges insisted that Britain was able to impose life tariffs that meant life. Three convicted murderers – Jeremy Bamber, Douglas Vinter and Peter Moore – tried to argue that life sentences with no hope of release constituted inhumane or degrading treatment. The judges disagreed saying that as long as the convictions were safe and the crimes grave enough, there was no reason why some prisoners should not be held behind bars for the rest of their lives.

Jerome Taylor

* Europe's top judge: Cameron is wrong about human rights
* Nicolas Bratza: Britain should be defending European justice, not attacking it
* Leading article: Mr Cameron must act the statesman in Strasbourg

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