Bratza bites back

25 November 2011 by Adam Wagner

I had intended to entitle this post “Bratza goes ballistic” which  would, for reasons I will explain, have been unfair. However, as reported by guardian.co.uk, the new British president of the European Court of Human Rights has pushed back strongly against the “vitriolic and – I am afraid to say, xenophobic – fury” of the reaction to recent rulings by the UK government and press, which he says is “unprecedented in my experience, as someone who has been involved with the Convention system for over 40 years.”

Safe to say, if anyone in the UK Government had been expecting an easy ride from the new, British born, president of the court, they will be disappointed by Bratza’s article in the European Human Rights Law Review. However, reading beyond the incendiary first few paragraphs, Bratza ends in a more conciliatory fashion, accepting many of the criticisms of the court and indeed offering suggestions for change.

I cannot link to the full text of The relationship between the UK courts and Strasbourg as it is only available on Westlaw, but I will quote some of the choice paragraphs.

On those unelected European judges:

Whatever else might be said about these charges, the epithet “unelected” is untrue. We are elected. t is indeed ironic, in view of the repeated use of the term by members of the House of Commons in the recent debate, that it is Governments that put forward lists of candidates to become judges of the Court and that it is politicians in the Parliamentary Assembly who elect us to the Court and who should carry the responsibility, if any, for appointing judges with inadequate experience.

On calls to withdraw from the European Convention on Human Rights:

The Human Rights Act, and the manner of its implementation by judges of the United Kingdom, have set a shining example to other states of how Convention rights can be brought home. The withdrawal of the United Kingdom from the Convention would do untold damage to the system itself. It would also, in my view, do immeasurable harm to the standing of the United Kingdom within the wider community of Europe in which it plays such an important part.

On the often made point that the court should do more to strike out cases and deal with only those which are the most important (see most recently Attorney General Dominic Grieve’s speech):

Taking the United Kingdom as an example, last year (2010) some 1,200 applications were considered by the Strasbourg Court. Of these, some 1,177 were declared inadmissible or struck out; only 23–less than 3 per cent of the total–resulted in a judgment of the Court, several of which ended in findings of no violation.

He has a strong point here: for all the talk about minimising the number of judgments the court makes, it is hard to see how 23 rulings per year could be reduced much further.

On whether the court pays adequate respect to judgments of the UK’s highest courts:

the Strasbourg Court has… been particularly respectful of decisions emanating from courts in the United Kingdom since the coming into effect of the Human Rights Act and this because of the very high quality of the judgments of these courts, which have greatly facilitated our task of adjudication. In many cases, the compelling reasoning and analysis of the relevant case-law by the national courts has formed the basis of the Strasbourg Court’s own judgment.

Moreover:

In the great majority of cases our Court followed the conclusions reached by the appeal courts in the three United Kingdom jurisdictions

And as to the court seeking to interfere with established law and impose uniform standards on member states:

The Court’s judgments are replete with statements that customs, policies and practices vary considerably between Contracting States and that we should not attempt to impose uniformity or detailed and specific requirements on domestic authorities, which are best positioned to reach a decision as to what is required in the particular area.

That said, the court does sometimes make controversial decisions and Bratza does not apologise for this. He gives examples:

the laws criminalising all homosexual acts in Northern Ireland (Dudgeon), the total ban on homosexuals joining the military (Lustig-Prean ); the court-martial system, with its lack of structural independence between the prosecution and the court itself (Findlay) and more recently and much more controversially, the blanket restriction on the voting rights of serving prisoner (Hirst (No.2).

In those cases,

the Court has been careful not only to explain the nature of the incompatibility but, in general, to leave the national authorities to devise a more Convention-compliant system without itself imposing specific requirements on the State.

Some argue that the problem with Hirst No. 2 is that whilst in itself it did not impose “specific requirements” on the state, subsequent decisions such as Frodl have – see my post Prisoner votes and the democratic deficit. So watch that space when the Grand Chamber rules on the most recent prisoner voting case, Scoppola, in which the UK intervened (the Attorney General’s speaking note is here).

As to the nationalistic furore in Scotland prompted by the UK Supreme Court’s “aggressive” interpretation of Strasbourg’s rulings on police interviews (see Rosalind’s latest post on the fallout):

I find it difficult to accept some of the criticisms that have been made. The fact remains that it was a judgment which was a foreseeable development of the Court’s more recent case-law; it was a judgment which was consistent with contemporary standards in the procedural protection of those suspected of a criminal offence; and it was a judgment supported by the practice in a substantial number of Member States, including, as pointed out by the Supreme Court itself, in the jurisdiction of England and Wales

Patching things up

Bratza ends on a more conciliatory note, suggesting some ways in which Strasbourg could ensure a more harmonious relationship with domestic courts.

First, he accepts that the court is “not omniscient” and should “show greater awareness of the consequences of its judgments on domestic law and practices“.

Secondly, he suggests that when deciding the correct balance between competing Convention rights, Strasbourg should be “particularly cautious” about interfering where national courts have already attempted to apply the Convention in a way which is “reasonable and not arbitrary“.

Thirdly, judgments should be expressed with “greater clarity” as they “too frequently seem to have caused exasperation among national judges, confronted with the task of interpreting and applying them”

Fourthly, while the court’s case law should evolve to address new situations, the Court “should show respect for precedent and recognise the vital need for consistency” and “legal certainty“. This may be an implicit acceptance of the problems generated by the inconsistent prisoner vote cases – we shall find out when Scoppola is decided.

Finally, there should be “increased dialogue between the judges of the courts, both informally and through their judgments“.

So, Bratza begins his term by biting back against criticisms of Strasbourg in the strongest terms, although he is right to call out some of the criticism as factually wrong and in some cases unpleasantly nationalistic. Thankfully, he also offers some very reasonable ideas for reform, all of which accord with the recently stated views of the UK government. Hopefully, now that the UK is temporarily in charge in Strasbourg, the warring parties can call a ceasefire and get on with the negotiating.

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