Hostility to the European Court and the risks of contagion – Philip Leach and Alice Donald
21 November 2013
Updated | The relationship between the UK and the European Court remains turbulent and fractious. The Court has been the subject of significant criticism, notably from some politicians and commentators in the UK, relating to its supposed interference in domestic, sovereign questions and the quality of its judges.
Some commentators say that the UK may have to withdraw from the jurisdiction of the court. Michael Pinto-Duschinsky argues that if (as is highly likely) the Council of Europe refuses to institute a “democratic override” for states of European Court of Human Rights decisions, withdrawal should be seriously considered. MP Nick Herbert argues that the UK should withdraw immediately.
Others have proposed withdrawing from the European Convention altogether. For example, in April, the Home Secretary, Theresa May, said that temporary withdrawal from the Convention was one option being considered by the UK government in its efforts to deport the Islamic cleric Omar Mohammed Othman (also known as Abu Qatada). Two members of the Commission tasked with investigating the creation of a UK Bill of Rights advocated withdrawal from the Convention unless the Court ceased its ‘judicially activist approach’ (p. 182).
The continuing prevarication, and even defiance, over the implementation of the Strasbourg pilot judgment on prisoner voting rights is also stoking the flames (see previous posts here). A year ago, Prime Minister David Cameron told MPs that:
No one should be under any doubt – prisoners are not getting the vote under this government.
One of the three ‘options’ proposed in the draft Voting Eligibility (Prisoners) Bill is that there should be no change to the current blanket ban on convicted prisoners voting while they remain in prison.
In a recent letter to Nick Gibb MP, Nils Muižnieks, the Council of Europe Commissioner for Human Rights, underlined the unacceptability of the current situation:
Non-compliance of a member state with a judgment of the Strasbourg Court is irreconcilable with its obligation, as a state party to the Convention, to execute the Court’s judgments fully and effectively.
In September, the President of the Court, Dean Spielmann, expressed his ‘deepest dismay’ at the lack of any significant progress in executing the judgment. Meanwhile, at the Court, the 2,281 pending UK prisoner voting cases have recently been ‘unfrozen’ and will now be adjudicated upon.
What impact is all of this having upon other member states of the Council of Europe, and indeed on the UK’s international standing? When interviewed for a report we co-authored on the UK’s relationship with Strasbourg, the former President of the European Court, Sir Nicolas Bratza, expressed his concern about the risks of contagion:
There is a risk of this attitude in the UK to judgments of the Court negatively impacting on other states and complaints being made of double standards … [which] could result in a wider refusal to implement ECtHR judgments across the Council of Europe (p. 176).
These concerns were recently echoed by Nils Muižnieks who suggested that,
continued non-compliance would have far-reaching deleterious consequences; it would send a strong signal to other member states, some of which would probably follow the UK’s lead and also claim that compliance with certain judgments is not possible, necessary or expedient. That would probably be the beginning of the end of the ECHR system, which is at the core of the Council of Europe.
These fears may have been borne out by the response of the Ukrainian government to a recent high profile judgment of the European Court, concerning the dismissal of a Supreme Court judge. In the case of Oleksandr Volkov v Ukraine the Court found four separate violations of Article 6 of the Convention because of the unfairness of Mr Volkov’s dismissal, highlighting the lack of independence and impartiality of the High Council of Justice (the body responsible for the appointment and dismissal of judges in Ukraine) and the fact that when his case was considered by the plenary parliament in Ukraine, the MPs present deliberately and unlawfully cast multiple votes belonging to their absent peers.
The effective implementation of this judgment is significant, not only because of the systemic issues identified in the case (the Venice Commission has also highlighted the flawed composition of the High Council of Justice) but also because, for the first time, the Court ordered the Ukrainian government to ensure the judge’s reinstatement. It is a judgment which Dean Spielmann has suggested marks the beginnings of a pattern of the Court issuing ‘injunctions’ against states.
The Volkov judgment became final in May 2013, but in spite of the court’s legally binding stipulation that the judge should be reinstated ‘at the earliest possible date’, that has not yet happened. Although the Committee of Ministers has established that there are currently vacancies on the Supreme Court, the Ukrainian government has not been able to explain why Mr Volkov has not been reinstated.
However, Aleksandr Lavrinovich, the former Minister of Justice (and the current chair of the High Council of Justice in Ukraine) has spoken out against the decision. He is quoted in the Ukrainian online newspaper Glavkom as arguing that European Court judgments need to be ‘realistic’ in terms of their implementation:
I know of no country that can support a mechanism restoring people to their position.
Mr Lavrinovich was clearly emboldened in his stance by the hostility to the Convention emanating from the UK, noting that Ukraine is not the only country having difficulty in implementing European Court judgments:
Great Britain would very much like to leave the European Convention on Human Rights.
Critics of the Strasbourg Court have sometimes dismissed warnings of contagion. For Michael Pinto-Duschinsky:
Even if these concerns are valid, it is a matter of debate how much weight they need to be given. When the issue at stake is the welfare and integrity of the UK’s system of justice and democracy, it may be argued that this must be the predominant consideration (p. 65).
Volkov is one of hundreds of judgments against Ukraine which await implementation (910 at the time of the most recent Committee of Ministers’ annual report; p. 47). Others concern the disappearance and murder of a campaigning journalist, the unlawful detention of the former prime minister and the ill-treatment of detainees in police custody.
What is clear from the Ukrainian government’s stance in Volkov is that contagion from the UK to newer Council of Europe states in refusing to implement unwelcome human rights judgments may no longer be merely a risk, but reality.
Philip Leach is Director of the European Human Rights Advocacy Centre at Middlesex University, which represented Oleksandr Volkov at the European Court of Human Rights.
Alice Donald is Senior Research Fellow in the School of Law at Middlesex University.
Clarification: This article originally referred to Michael Pinto-Duschinsky as “advocating” withdrawal from the Court. This has now been amended as Mr Pinto-Duschinsky’s view is more nuanced: he believes that should the Council of Europe refuse to institute a “democratic override” then the UK should withdraw from the jurisdiction of the Court.
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