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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.

Kosovo’s declaration of independence from Serbia has divided opinion. Instinctively I find myself siding with those whose desire for self-determination has led this newborn country to unilaterally take its first steps while the EU holds its hands and some EU members states stand a few paces away holding out their arms and encouraging it to walk towards them. For others, however, the declaration of independence and, worse, its recognition by the treacherous United States and Britain, is a travesty of the greatest proportions.


As far as I can see the objectors to the independence of Kosovo depend on these arguments:

  1.   Self-determination of peoples is in general a bad thing.  In the particular case of Kosovo it may lead to a precedent being set for other regions in Europe seeking autonomy.  A particular fear is that the quasi-state that occupies the Northern part of Cyprus, the Turkish Republic of Northern Cyprus, may be inclined to take similar steps leading to permanent partition of Cyprus.  Spain and Russia have fears that they may lose part of their territory to secessionists.
  2.   Even if self-determination may in some cases be a good thing (and, notably, was a good thing in relation to the destruction of the British Empire and the creation of independent states in its place), self-determination in respect of Kosovo is unlawful because a UN resolution (signed by the usual signatories including the Big Five) specifically stated that the territorial integrity of Serbia must be respected.
  3.   Even if there is a legal argument that the UN Resolution does not preclude independence, then it is morally wrong to reward the ethnic Albanians for their appalling ethnic cleansing of the Serbian population.
  4.   It is also morally wrong to reward the Kosovo Liberation Army (KLA) and the newly declared Prime Minister, Hashim Thaci, for the role in terrible atrocities and violence against the Serbian minority.
  5.   Even if these last two objections can be overcome, it is extremely unwise to allow the ethnic Albanians autonomy because they are generally, and their leaders are specifically (a) Muslims and (b) in league with Osama Bin Laden and (c) corrupt and part of the Mafia and (d) drug traffickers.

Clearly it is impossible to overcome all those objections.  For whilst there are easy, sensible, rational arguments to deal with 1 and 2, and 3 might be addressed by reference to the hopes of the ordinary people in Kosovo and the young people in particular, and 4 might be dealt with by remembering other nations which were born out of foment and whose leaders had previously resorted to violence in pursuit of their political aims but where the a new peace had grown out of the ashes of discord and terrorists had become moderate politicians (Northern Ireland springs to mind), there is really nothing that will answer the fifth argument. 

This final basket of prejudices is so deep-seated and so tied up with the ethnic identity and religious faith of the objectors, that it would take a braver woman than I am to confront the anger and aggression that disagreement provokes.If feelings ran less high and opinions were less entrenched, I would wish to ask those who object to the declaration of independence what they would have wanted to happen.  Except I already know the answer.

They would have wanted the territory currently occupied by a majority of ethnic Albanians to become a majority Serbian province within Greater Serbia, so that the Muslim ethnic Albanians became a minority.  They would want to roll history back about a hundred years to the time when there was no ethnic Albanian majority in Kosovo.  Presumably all the ethnic Albanians would be expected to move over the border into Albania.  This sounds like very polite ethnic cleansing to me, though I doubt it would be polite or bloodless were it ever allowed to come about.

Recognising that these are indeed the wishes of Serbia and those who support her, I am confirmed in my belief that independence was the only option for the ordinary people of Kosova.

Guardian videos

Serb demonstrations against independence

Joyful celebrations of independence 

Interactive history of Kosovo 

From official census data of the Kingdom of Serbia, Kingdom of Yugoslavia, and Socialist Federal Republic of Yugoslavia.

Year Total number     Ethnic composition (%)  
    Albanian Serb Montenegrin Turkish Muslim Other
1913 497,456            
1921 439,010 65.8 26.0   6.4  
1931 552,064 60.0 32.6       7.4
1948 733,034            
1953 815,908            
1961 963,988 67.2 23.6 3.9 2.7 0.8 1.2
1971 1,243,393 73.7 18.4 2.5 1.0 2.1 2.0
1981 1,588,400 77.5 13.2 1.7 0.8 3.7 4.1
1991* 2,000,000 90.0 8.0       2.0

 

* the data for 1991 is estimated, the census of that year was boycotted by the Albanian population.

Sources: Musa Limani, The Geographic Position, Natural Riches, Demographic Characteristics, and the Economical Development of Kosova (Prishtina, Kosova: The Association of Lawyers of Kosova, 1992); Miranda Vickers, Between Serb and Albanian: A History of Kosovo (New York: Columbia University Press, 1998).

For some people the day comes
when they have to declare the great Yes
or the great No. It’s clear at once who has the Yes
ready within him; and saying it,
he goes from honor to honor, strong in his conviction.
He who refuses does not repent. Asked again,
he’d still say no. Yet that no-the right no-
drags him down all his life.

(Link to report repaired)

 If you’re older than 44, that is.

If not, skip the middle bit – it will only make you miserable.

For those older than 44, apparently things only get better.  This is exceptionally good news, because I am 45.  I am delighted that I can now rest assured that all of my miserable friends who are also 45 or older will only have increasing happiness, and I will console those of my younger miserable friends that it is not long until things improve for them too.  Good news all round …

Stephen Moss
Wednesday January 30, 2008
The Guardian 

‘The first 40 years of life is text, the rest is commentary,” wrote Schopenhauer. Setting the watershed as low as 40 is arguable, but Schopenhauer surely had a point, and it may help to explain the results of a new survey that puts our most depressed age at 44. This vast study, carried out jointly by researchers at Warwick University and Dartmouth College in the US, has concluded that happiness is U-shaped: it peaks when we are 20 and 70, but slumps in the middle. “You would expect people to get unhappier as they get closer to death,” says Professor Andrew Oswald of Warwick University, “but the opposite appears to be the case. It is a mystery why this happens

If we trust Schopenhauer, it is no mystery at all. Your 40s are the point at which the act of composition – climbing the career ladder, having affairs, believing you are the next Montaigne – is replaced by the art of reflection and perhaps regret. How did I fail to become prime minister? Why did I have those affairs? Where is my oeuvre? At 44, those thoughts – as I painfully recall – are uppermost in your mind, and sometimes you will blame anyone but yourself for your failures. But trust me, you will come through it. I reached 50 last year, and far from being distressed by that supposedly defining moment, I’ve never felt better. I now accept that I am deep into my commentary period, and am enjoying it hugely. In your 20s and 30s, you think there is some big secret that is being withheld from you. But there is no secret. No one has a clue what they’re doing or why. By 44 you are distressed to discover there is no secret and that life’s glittering prizes are made of tin. But then comes the getting of wisdom. As Oswald observes, “When you get older, you’ve learned to accept yourself.” You aren’t Montaigne, you aren’t going to be PM, you are just you. In Schopenhauerian terms, will is replaced by art, acceptance and a sense of the universal. You learn to enjoy the comedy of life’s struggle, and happily take your place in this huge and leaking lifeboat.”

You can read the full report of the research (much more interesting that the short taster) here.  Things can only get better.

The report intended to sort out the ceteris paribus correlation, that is whether well-being is U-shaped over a lifetime, or whether previous studies had produced skewed results because some generations, or some cohorts (such as those born in a particular decade) were happier or less happy than others.   Several data sources were used.  Initially data was sampled at random from the General Social Surveys of the United States and the Eurobarometer Surveys in Europe.  Analysis of these data sets showed that well-being amongst American men was lowest around 53 years of age, much later than for American women (around 38-40), and later also than the happiness minimum for European men and women who were both at their most unhappy at about 47. 

If women marry earlier than men, then perhaps the unhappiness peaks at the time that both have to contend with teenage children?  The authors of the report say not: “The well-being U shape in age is apparently not produced by the influence of children”.  They deduce from looking at different age cohorts, however, that while Europeans are about as happy or unhappy as they have always been since the 1950s at a particular age, successive American birth cohorts have – since the early 1900s – become progressively less happy.  This difference cannot, the authors say,  be explained away by a difference in use of language or perception of the meaning of words used to describe well-being in the surveys.

Within Europe there are substantial variations between countries, pooling male and female results.  People in the UK become unhappier earliest (35.8 ) and those in Portual latest (66.1) with most other countries hovering around 49.

Data from the UK Labour Force Survey was used to test the Eurobarometer findings.  Depression and anxiety figures taken from a sample from approximately one million observations shows that the measure of mental ill-health turns around at 46.

The authors cannot provide any answers as to why the graphs should, across 72 countries, take on such a U shape, nor why the troughs appear when they do in each country.  One suspects that the reasons are particular to each country and its culture, although some truths may cross national barriers.  Oswald and Blanchflower tentatively suggest three factors:

  • That individuals learn to adapt to their strengths and weaknesses, and quell infeasible aspirations
  • That happy people live longer, so that those who survive to older age record higher levels of well-being
  • That schadenfreude or similar effectively prevents us from repeating the mistakes of our peers

These results may be amusing for us, but they are important for policy makers.  It should be possible from a careful analysis of individual country statistics to work out when men and women are least happy and why.  Unhappiness costs the state lots of money – in days off sick from work, in benefits paid to single parents as a result of divorces, in treating depression and anxiety in adults and in their children, in the criminal justice system.  I’d like to know more about the statistics for the UK, separating out men from women, and looking at the variables – number of children, employment or lack of it, socio-economic status, health and so on.

Which leads me on to a rare burst of cruel British humour from another Prime Minister in waiting.

I have to include this wonderful excerpt from a speech made by William Hague, in the House of Commons on 21st January.  The background is, of course, Gordon Brown’s long lived ambition to unseat Tony Blair and become Prime Minister, an ambition recently achieved without an election even.  Here – in the grand tradition of British Parliamentary oratory – William Hague warns him of what is still to come …

“To see how the post of a permanent President of the European Council could evolve is not difficult even for the humblest student of politics, and it is, of course, rumoured that one Tony Blair may be interested in the job. If that prospect makes us uncomfortable on the Conservative Benches, just imagine how it will be viewed in Downing street! I must warn Ministers that having tangled with Tony Blair across the Dispatch Box on hundreds of occasions, I know his mind almost as well as they do. I can tell them that when he goes off to a major political conference of a centre-right party and refers to himself as a socialist, he is on manoeuvres, and is busily building coalitions as only he can.

We can all picture the scene at a European Council sometime next year. Picture the face of our poor Prime Minister as the name “Blair” is nominated by one President and Prime Minister after another: the look of utter gloom on his face at the nauseating, glutinous praise oozing from every Head of Government, the rapid revelation of a majority view, agreed behind closed doors when he, as usual, was excluded. Never would he more regret no longer being in possession of a veto: the famous dropped jaw almost hitting the table, as he realises there is no option but to join in. And then the awful moment when the motorcade of the President of Europe sweeps into Downing street. The gritted teeth and bitten nails: the Prime Minister emerges from his door with a smile of intolerable anguish; the choking sensation as the words, “Mr President”, are forced from his mouth. And then, once in the Cabinet room, the melodrama of, “When will you hand over to me?” all over again.”

Ice Lollies

Frozen Assets …

 

I have never grown out of puns. 

Poor Sheikh Yassin Abdullah Kadi has been unable to enjoy any of his lolly over the last six years or so.  It was all frozen shortly after 9/11 and he is still looking for a way to defrost it.  Most recently he asked the European Court of Justice in Luxembourg if it would help.

Shortly after 9/11 the US Treasury Department faxed a list to the United Nations.  The fax was a list of persons that the US suspected of supporting terrorism.  No details.  No reasons.  Just a straightforward list of names.

The UN had passed a series of resolutions before and after 9/11 requiring all states to take measures to freeze the assets of individuals and bodies associated with Osama bin Laden, the Al-Quaeda network and the Taliban.  A special Sanctions Committee made up of representatives from all members of the UN Security Council was charged with deciding whose assets should be frozen.

Except it did not draw up its own list, it simply adopted the US list – lock, stock and barrel.  Just like that. 

So, from 19th October 2001, Mr Kadi found all his considerable assets frozen.  He was allowed to apply to the Sanctions Committee for monies to be released to pay for food, medical expenses and reasonable legal expenses, but that was all.  There is no practical way that the content of the list may be challenged by an individual, and Mr Kadi was not given any information about why his name appeared on the list.

So much for the Rule of Law.

The UN Resolutions were implemented in different ways in different countries.  The EU Member States banded together and agreed a Common Position in relation to the Resolutions and then passed their own regulations mirroring the UN provisions. 

Now at this point I should explain.  As far as international law is concerned, countries fall into one of two camps.  They are either monist or they are dualist.  Monist countries do not have to do anything extra to implement international agreements – they automatically become part of national law.  Dualist countries have to pass their own domestic legislation implementing international measures before those international laws bite in their own legal regimes.

The UK, being a resolutely dualist country, had passed its own legislation freezing Mr Kadi’s assets, and Mr Kadi applied to the English courts for these restrictions to be set aside.  The English courts hummed and haaed a bit. Then the UK government told the courts that it did not matter what the UK legislation said, because the UK was bound anyway by an EC regulation which said Mr Kadi’s assets had to be frozen.  And EC law trumps UK law every time (which makes British Conservatives spit about sovereignty sold down the river and so on).  So Mr Kadi could whistle for his money.

Not surprisingly, Mr Kadi was a bit upset because it is actually true that EC law binds the UK.  It looked as if he needed to get the EC law set aside with some cunning legal arguments from some reasonably priced lawyers.  So he applied to the baby court of the European Communities in Luxembourg, the Court of First Instance.  They were unwilling to oblige and instead confirmed the position of the UK government.  The EC Regulations were good and there to stay.

Not put off, Mr Kadi pursued the matter to the big, grown-up court, the European Court of Justice.  This time he had some new reasonably priced lawyers and some new arguments.

 He argued that it is not only painful, but also unfair and a breach of fundamental rights for anybody to have their assets frozen without being able to challenge the decision.  He said that he had a right to be heard and a right to an effective judicial review of the decisions taken at EU level, failing which his right to property had been seriously infringed. 

Now, the European Court of Justice is a bit unusual.  Before the judges make up their minds, they get a chance to hear what the Advocate General has to say.  There are several Advocate Generals, actually, but only one in each case.  It is probably the best job a European lawyer could hope for, because he (or she) gets the chance to tell all the judges of all the Member States what the answer should be.  Often it is the Advocate General who effectively makes the new law.  For The Whole of Europe.  Wow.

Today, the brilliant Portuguese Advocate General in Mr Kadi’s case said – in an elegantly simple opinion – that the EU had no right to pass a regulation freezing Mr Kadi’s assets.  This was not only because (according to him) there was no right to pass any regulation on the legal bases that the Council and Commission of the EU, or the UK government, had argued.  But also because there was no effective way for Mr Kadi to challenge the inclusion of his name on the list.   In effect, the European Union is dualist, he said.  The EU is not obliged to apply international law automatically but will first have to check whether it meets its own moral/legal standards.  An opinion with potentially far reaching ramifications.

You see, it could have been my name, or your name, or Mr Smith’s name, and we nor he would not have been able to do a thing about it either.

 We will have to wait and see whether the judges of the European Court of Justice follow their leader or not.  Until then, Mr Kadi can pay his reasonably priced lawyers and feed himself and get treated if he is ill, but the rest of his lolly remains resolutely locked in the freezers of states across the world.  Which is not fair, is it?

 

 

 

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