The European Court of Human Rights decides cases brought before it by states or individuals who claim a breach of the European Convention on Human Rights, an international human rights instrument dealing with civil and political rights and to which all members of the Council of Europe are signatories.  There are 47 member states of the Council of Europe including Azerbaijan, Russia and Turkey with a combined population of 800 million potential applicants.  The court is often confused with the European Court of Justice which decides on matters relating to EU treaties and sits in Luxembourg.  They are very different.

The European Court of Human Rights is based in Strasbourg which is where, to add to the confusion, the EU Parliament holds its plenary sessions.  Strasbourg is in northern France, close to the German border.  Within living memory it was briefly part of Germany having been annexed first in 1871 at the end of the Franco-Prussian War, restored to France at the end of the First World War, reoccupied by Germany during the Second World War and liberated in 1944. 

Panorama from the Barrage Vauban with the medieval bridge Ponts Couverts in the foreground (the fourth tower being hidden by trees at the left) and the cathedral in the distance.
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The Court occupies a striking steel and glass building on one of the many waterways in Strasbourg.  It is sinking under its caseload.  At the end of 2007 there were more than 103,000 cases pending before it.

Although the Court rarely makes large compensatory awards, its judgments are usually honoured by the state against whom the complaint has been found and are often politically embarrassing.  Notable British humiliations have been in respect to “shoot-to-kill” policies in relation to terrorist suspects, the treatment of homosexuals in the armed forces and practices of the armed forces in Northern Ireland.  This last case, Ireland -v- UK, resulted in a finding that certain practices used by the UK against Irish terrorist suspects amounted to “inhuman and degrading treatment” and were thus unlawful under the European Convention.  Happily for the US, however, the Court stopped short of finding these five practices (wall-standing; hooding; subjection to noise; deprivation of sleep; deprivation of food and drink) were “torture”.  The US definition of torture has been drawn by reference to this judgment; relying on the Strasbourg court’s findings the US allows those same practices that were prohibited by the court’s judgment on the grounds that they have been found by an internation court not to amount to “torture” (even though they have been found to be inhuman or degrading treatment …). 

The UK government decided that the provisions of the European Convention should become part of UK law, creating rights that could be claimed in domestic courts without the need for public shame on the international stage.  The Human Rights Act 1998 incorporated the main substantive articles of the Convention.  Cases from the UK now need to exhaust any domestic remedies in UK courts, or argue that there is no domestic remedy.  In practice this will mean that a case against the UK is lodged at the European Court of Human Rights only when it has already passed through the supreme court, the House of Lords.  It may still take more than four years for the case to be heard. 

In other countries where there is less domestic human rights legislation, the European Court of Human Rights may be the only forum in which a spotlight can be thrown on human rights abuses. 

Russia regards the Strabourg court with no affection.  In 2007 the former Swiss judge of the European Court of Human Rights, and also its former President, said that he had been poisoned whilst on a visit to Russia.  Officials in the Court trod a careful line.  Whilst there was nothing to link Mr Wildhaber’s illness (acute septicaemia) with his visit to Russia, the Guardian reported that officials conceded “the Kremlin had been annoyed by a series of judgments by the court and regarded it as pathologically anti-Russian and biased. The court has regularly condemned Russian human rights abuses in Chechnya, and has ruled against complaints of discrimination by ethnic Russians in the Baltics”.  Mr Wildhaber claimed that he had been threatened by the Russians.  Russia was similarly unhappy with monitoring carried out by the Secretary General of the Council of Europe into its record in relation to freedom of expression of the media, with the result that the monitoring programme was abandoned.  Russia has, however, allowed the Council of Europe to monitor its recent presidential elections – almost the only outside monitors after the OSCE withdrew.

Originally the enforcement mechanism of the Council of Europe comprised a part-time two-stage Commission and Court.  This was replaced by a single full-time Court in 1998.  By this time there had been a huge increase in the number of Contracting States following the break-up of the Soviet Union – twenty one states have joined since 1989.  The number of cases grew exponentially, flooding the court.  Each Contracting State is represented by one judge, appointed for a renewable six year term.  The Contracting States put forward three applicants and the Council of Europe decides on the appointment, voting via  its Parliamentary Assembly: the current UK judge is Sir Nicholas Bratza.   He was appointed by the skin of his teeth when the new Court came into being.  Despite having been a member of the preceding European Commission on Human Rights, and despite being the preferred candidate of the UK government, the sub-committee of the Parliamentary Assembly of the Council of Europe charged with the appointment of judges to the court, and comprising politicians of the Council of Europe member states, refused to recommend him and supported the appointment instead of Richard Reed, a Scottish barrister and QC.  The sub-committee was apparently swayed by the fact that while a practising barrister, Bratza had several times represented the then-Conservative UK government in its defence when it had been the subject of cases before the European Court.  Only a full vote of the Parliamentary Assembly overturned the sub-committee’s recommendation and allowed Nicholas Bratza to be confirmed as the UK’s judge.  

Incidentally, Nicholas Bratza’s father was the famous Serbian concert violinist, Milan Bratza, who settled in Britain after the First World War.  His mother came from the Russell family, a family that has produced three generations of Law Lords (judges in the House of Lords).  A Telegraph article describes him as feeling:

 “a natural affinity with central Europe, though, having been born and brought up in Britain, he is sure that his ancestry has no effect on the way he approaches cases. He is, however, “very pleased” that Serbia and Montenegro joined the Council of Europe in April and signed the Human Rights Convention.”

Judges in the Strasbourg court are divided along geographical and gender lines into five sections.   Each section will first hear cases from the states which it includes.  Thus Nicholas Bratza sits with judges from a motley collection of countries – Andorra, Malta, Albania, Moldova, Finland, Poland, Bosnia and Slovakia – and this section, Section IV, will hear all cases emanating from the UK and those other states. 

Sadly judges almost invariably decide in favour of their state.  It is unheard of for particular judges to ever decide against their state, even if the majority of the other judges in the section find in favour of the applicant and against that state.  Dissenting judgments are, therefore, quite usual, but cast grave doubt on the independence of the judges from some countries especially.  Judges depend on the support of their state when it comes to their re-appointment every six years.  It is very unlikely that a judge who has regularly castigated a state for its human rights abuses will find himself or herself on the short list.   Yet the rule of law is severly compromised if judges cannot afford to be independent and impartial.  The European Court of Human Rights differs from the European Court of Justice in allowing public dissent by judges.  The European Court of Justice only issues a single judgment and any dissent is walled in.

Attempts have been made to streamline the court procedure in order to reduce the backlog in order to make the Court more effective, and to strengthen the independence of the judges.  Judges, it is proposed, will be appointed for a nine year term which may not be renewed.  This will allows judges, once they have been appointed, to “go native” without having to worry about securing support for future appointments from their home state.  It will also be much easier to declare cases inadmissible, particularly if they are similar to previously decided cases.   The details of the revised procedure were set out in the 14th Protocol to the Convention, but cannot replace the existing procedure until all of the Contracting States of the Convention have ratified the protocol.  Without the reform the Court cannot do its job. 

So far every state belonging to the Council of Europe has ratified the protocol, bar one.  Russia.

 Postscript

Apparently the Committee on Juridical Affairs and Human Rights at the Parliamentary Assembly of the Council of Europe (PACE) will meet in Paris on 6 March (Thursday, this week) to discuss ratification of the 14th protocol of the Convention by Russia.  Also on the agenda is violation of human rights in the North Caucasus, religious freedom of non-Muslim minorities in Turkey and of Muslim minorities in North Greece, and the EU joining the Council of Europe.

Also, two more links dealing with Russia’s refusal to ratify the protocol, and the particular decisions of the ECtHR that have annoyed Russia – an interview with the Chair of the Parliamentary Assembly of the Council of Europe, and an interview with the head of the Foreign Affairs Committee of the Russian Duma.

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