Is the European Court of Human Rights buckling under Westminister pressure?

22527865148_e67eb8c7df_bIn 2006 David Cameron said the HRA ‘has stopped us responding properly in terms of terrorism, particularly in terms of deporting those who may do us harm in this country’. In 2014 his party published proposals to amend the HRA, and to withdraw from the Convention.

Readers of this blog won’t need reminding that the media has robustly criticized the ECtHR:

“The Court has never, in its 50-year history, been subject to such a barrage of hostile criticism as that which occurred in the United Kingdom in 2011 Over the years certain governments have discovered that it is electorally popular to criticise international courts such as the Strasbourg court: they are easy targets, particularly because they tend, like all courts, not to answer back.”[2]

In the last four years there were some 80 judgments where the UK was the respondent and in about 40 of those cases one or more violations were found.  This does not seem to be particularly (statistically) out of step with previous periods.  However do the key cases suggest the widening of the margin of appreciation for the UK?

Al-Khawaja 

This case concerns hearsay evidence used in a criminal trial.  The issue started with the Al-Khawaja chamber judgment which was then considered by the Supreme Court in R v Horncastle. In the subsequent Grand Chamber, the Supreme Court’s judgment was taken into account “demonstrating the concept of ‘dialogue’ between the two courts” .

The dissent:

“To our knowledge this is the first time ever that this Court, in the absence of a specific new and compelling reason, has diminished the level of protection. This is a matter of gravest concern for the future of the judicial protection of human rights in Europe.” 

Animal Defenders

This case concerned the ban on “political advertising” imposed by the Communications Act, a ban that not only prevents paid advertising in the broadcast media by political parties but also such advertising by NGOs and small campaign groups. The Grand Chamber found no violation of article 10.  The dissent:

“…there can be no double standards of human rights protection on grounds of the “origin” of the interference. It is immaterial for a fundamental human right, and for that reason for the Court, whether an interference with that right originates in legislation or in a judicial or administrative act or omission…

Where the determination of the public interest and its best pursuit are left solely and exclusively to the national legislator, this may have the effect of sweeping away the commitments of High Contracting Parties under Article 1 of the Convention… and of re-asserting the absolute sovereignty of Parliament in the best pre-Convention traditions of Bagehot and Dicey.[3]

This judgment was a surprise given that a very similar ban in Switzerland had been already been judged to be a violation in the Grand Chamber in VgT v. Switzerland, precisely because of the blanket nature of the ban.

Austin 

This case concerned the “detention” (kettling) of a number of protesters and non- protesters for some seven hours in Oxford Street.

The Court found no violation of article 5 and concluded:

“…that there was no deprivation of liberty, is based on the specific and exceptional facts of this case…”[4]

The dissent:

In terms of the principles governing the application of Article 5 of the Convention… the majority’s position can be interpreted as implying that, if it is necessary to impose a coercive and restrictive measure for a legitimate public-interest purpose, the measure does not amount to a deprivation of liberty. This is a new proposition which is eminently questionable and objectionable… there is no reason to treat deprivations of liberty resulting from public-order considerations any differently from other kinds of deprivation of liberty for which this provision is invoked. Otherwise, States would be able to “circumvent” the guarantees laid down in Article 5….”[5]

Many people assumed that Article 5, not being a “qualified right”, did not allow for a public interest justification.  Surely the “rule of law’ required a finding of a violation, with the onus then on the member states to amend Article 5 (even if that approach is fraught with political difficulties).

Ibrahim

“On 7 July 2005, four suicide bombs exploded on three underground trains and one bus in central London, killing fifty-two people and injuring hundreds more.”[6]

Following the arrests of the applicants who were suspected of being involved in further atrocities, access to their lawyers was denied and a “safety interview” took place. Material from those interviews was, however, used at the trial.  The Chamber decided that there was no violation (the case is now pending before Grand Chamber).

The dissent:

“…the case-law of this Court sees the privilege against self-incrimination as one of the basic principles of Article 6 of the Convention, there is little doubt that the “minimum right to legal assistance” enshrined in Article 6 § 3 (c) serves as one of the basic guarantees for the protection of this privilege…” [7]

Whilst the need for a safety interview is difficult to deny, the use of the self-incriminating material at the trial seems much more difficult to justify (see the more sophisticated approach taken in Saunders v UK).

Vinter

The applicants were all given life sentences but argued that the “whole life order” imposed on them was a violation of article 3 and a violation was found by the Grand Chamber.  However in Hutchinson (which also concerned whole life orders) the Chamber found no violation:

“…the Court of Appeal delivered a judgment in which it expressly responded to the concerns detailed in Vinter… [and] held that it was of no consequence that the Lifer Manual had not been revised, since it was clearly established in domestic law that the Secretary of State was bound to exercise his power… in a manner compatible with Article 3 [of the HRA].”[8]

In my view it is surely bizarre that the “obvious” violation is avoided because the Secretary of State is, despite his own Manual, is required to take into account the HRA, importing the precise established jurisprudence implicitly disavowed in this case!

The dissent:

“The reasoning of the majority…is based on the premise that the Grand Chamber erred in its understanding of the domestic law… I fail to see the bearing of this [subsequent] progressive development of the law on the applicant’s situation”

Conclusion

Are the judges in the ECtHR are responding to the political pressure to repeal the HRA and withdraw from the ECHR?  Perhaps this is good for those in the UK holding on to the protection provide by the HRA and ECHR only by their fingernails but not so good for all those in the other 46 countries of the Council of Europe who expect “justice be done, though the heavens may fall”.

This post is by John Wadham (@johnwadham). This is a summary of a paper prepared for the Inter-American Human Rights Network .  The full paper is available here 

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NOTES

[2] The Future of the European Court of Human Rights’, German Law Journal,1862-77. Michael O’Boyle (Registrar of the ECtHR), 2011

[3] Para 10, Judge Ziemele and others

[4] Para 68

[5] Para 3 to 5, Judge Tulkens and others

[6] Paras 8 to 10

[7] Judge Kalaydjieva

[8] Para 23

4 thoughts on “Is the European Court of Human Rights buckling under Westminister pressure?

  1. The Austin judgment in particular reads like a complete fudge, and given the timing (early 2012) and the implications if there had been a finding against the UK, I have no doubt the judgment was made to appease the UK government.

    What good does holding onto the HRA and ECHR by our fingernails do if for that to happen the really big issues have to be wrongly decided?

  2. If the ECtHR is widening the margin of appreciation, it’s not just for the UK. The only area on which I claim to know very much is Articles 8 & 9: but on freedom on thought, conscience and religion, especially, the widening of the margin of appreciation probably began with the Grand Chamber judgment in Lautsi & Ors v Italy [2011] ECHR 2412 on the display of crucifixes in classrooms in state schools. There was a lot of approving academic comment on the Chamber judgment – which the GC then overturned.

    In 2014 the GC refused in Fernández Martínez v Spain [2014] ECHR 615 to overturn the decisions of the domestic courts on the dismissal of a married former Roman Catholic priest from his teaching post in a state high school, after he was sacked by his Bishop when a newspaper had published a photograph of him, his wife and their five children at a meeting of the Movement for Optional Celibacy. The GC held 9:8 that there had been no violation of Article 8 and by 14:3 that there was no need separately to examine the other complaints. The majority took the view that, though enforcement by the public authorities of his Bishop’s non-renewal decision interfered with his Article 8 rights, it was in accordance with domestic secular law – even though it was a state school, not a religious one.

    Then there was SAS v France [2014] ECHR 695, on the French ban on face-covering in public, in which the GC imported the idea of “living together” [“vivre ensemble”] – which isn’t mentioned anywhere in Article 9.

    Which leads me to conclude that, at least in cases with a religious dimension, the GC seems to be choosing the side of Realpolitik: understandable, perhaps – but is it proper?

  3. My understanding of HR law (as a none lawyer) is that it is “living” in the sense that it can deviate into areas which may be new or untested and there have been examples of this which have resulted in decisions against various governments. It seems therefore, fair and equal if the ECHR can rethink and deviate from previous decisions and from the various articles under the specific circumstances of a case. Or are you saying that judicial decisions are final and sacrosanct and should not reflect any change?
    I think the UK government (and others) may have quite rightly applied some scrutiny and feedback to the ECHR – call it pressure if you wish – to restore balance in some of the thinking around decisions.
    When studying a law module at university many years ago, my lecturer said we should put aside any notion of common sense as it rarely has any use. Perhaps the ECHR is learning some common sense and he was wrong after all ?

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