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Sunday, January 30, 2011

Should the UK be invited to leave the Council of Europe?

Should the UK be invited to leave the Council of Europe?

In over 5 years since Hirst v UK (No2) was decided by the ECtHR, the UK has gone from totally ignoring the decision to seeking to get away with minimal compliance. Last Wednesday the Parliamentary Assembly of the Council of Europe (PACE) voted on the following Resolution:

"The United Kingdom must put to an end the practice of delaying full implementation of Court judgments with respect to politically sensitive issues, such as prisoners’ voting rights".

"Joint debate

THE PRESIDENT – We now come to the joint debate on the implementation of judgments of the European Court of Human Rights, Document 12455, which is presented by Mr Pourgourides on behalf of the Committee on Legal Affairs and Human Rights; and on preventing harm to refugees and migrants in extradition and expulsion cases in respect of Rule 39 indications by the European Court of Human Rights, Document 12435, presented by Mr Darchiashvili on behalf of the Committee on Migration, Refugees and Population, with an opinion presented by Mr Cilevičs on behalf of the Committee on Legal Affairs and Human Rights, Document 12471.

The rapporteurs have 13 minutes in total to present their reports, which they may divide between presentation of the reports and replies to the debate.

I call Mr Pourgourides to present the first report.

Mr POURGOURIDES (Cyprus) – Thank you, dear President.

Dear colleagues, paragraph 2 of the draft resolution of the Committee on Legal Affairs and Human Rights gives a clear indication of the basic thrust of what this afternoon’s discussions should be about. We know that the Committee of Ministers has the principal task of supervising Strasbourg Court judgments; that is clearly laid down in Article 46, paragraph 2, of the European Convention on Human Rights. But what if, despite the efforts made by our diplomatic colleagues, states are dilatory or simply not willing to comply speedily with Strasbourg Court judgments? Are we, the representatives of the legislative organs of the 47 countries, meant to sit back while the greatest achievement of the Council of Europe collapses under the weight of its own work or of the inability of the Committee of Ministers to force a number of states to comply rapidly and fully with Strasbourg Court judgments?

Of course, we cannot let that happen. I understand that there are more than 9 700 – yes, you heard me right: 9 700 – cases pending before the Committee of Ministers right now. Many of those cases concern grave human rights violations and a substantial number relate to major structural problems that have not been resolved for more than five, 10 or even 20 years.

The countries responsible for that unacceptable situation are: Italy, with more than 2 500 unexecuted cases; Turkey, with more than 1 600 cases still pending before the Committee of Ministers; Russia, with nearly 1 000 unexecuted cases; Poland, with more than 760 such cases; Ukraine, with nearly 700 such cases; and Romania, with more than 630 such cases. All that gives one the impression that those countries are dragging their feet in not dealing speedily with the implementation of the Strasbourg Court’s judgments.

The Assembly and national parliaments are therefore duty-bound to play a more proactive role in this respect. I quote from paragraph 2 of the draft resolution: “if this is not done, the key role of the Convention, its supervisory mechanism and the Council of Europe as a whole, in guaranteeing the effective protection of human rights in Europe is likely to be put in jeopardy”. The current state of affairs, Mr President, is simply scandalous.

I was appointed rapporteur in March 2008, to take over the work of my eminent predecessor, Erik Jurgens of the Netherlands, who had, since 2002, produced several reports on this subject. The Committee on Legal Affairs and Human Rights authorised me to undertake fact-finding missions to eight countries – Bulgaria, Greece, Italy, Moldova, Romania, Russia, Turkey and Ukraine. I visited them all, and my last visit, to Turkey, took place only a couple of weeks ago.

The work has been difficult, very intensive and time consuming, but certainly rewarding, both for the people I met in those countries and for me, and I am now able to present the report to you today. In most countries, I was able to meet parliamentarians, prosecutors, judges, ministers and officials directly responsible for human rights files, and, on the margins of those meetings, civil society representatives as well as lawyers who had experience of litigating at the Strasbourg Court.

I assume that it is not necessary for me to go into great detail on the substance of the report, as most of you have had the opportunity to read the report published last year, as well as the short addendum issued a few days ago. It is enough for me to highlight the principal problems encountered in the execution of Strasbourg Court judgments with respect to nine states in particular, as indicated in the draft resolution. The main problems continue to be: excessive length of judicial proceedings, which is endemic, notably in Italy; chronic non-enforcement of domestic judicial decisions, which is widespread in Russia and Ukraine in particular; deaths and ill treatment by law enforcement officials and lack of effective investigations into them, which is particularly apparent in Russia and Moldova; and unlawful or overlong detention on remand, which is a problem notably in Moldova, Poland, Russia, Turkey and Ukraine.

Those problems are a matter of great concern and seriously undermine the rule of law in the states concerned. I find it simply unacceptable, for example, for states belonging to the democratic club that is the Council of Europe not to take immediate and strong measures following deaths or ill treatment suffered at the hands of law enforcement officials. The importance of putting an end to impunity cannot be overstated, and not only in the north Caucasus region, although the problem is most virulent there, as my colleague Dick Marty indicated in his report.

In the draft resolution, there is a series of recommendations to each of the states that I have mentioned, urging them to put their respective houses in order urgently – now – and not in five, seven or 10 years’ time.

Furthermore the Assembly is urged by the Committee on Legal Affairs and Human Rights, which adopted this report unanimously, to ensure that national parliaments that have not yet done so introduce specific mechanisms and procedures for effective and regular parliamentary oversight of the implementation of the Strasbourg Court’s judgment and for states to set up some form of decision-making body, at the highest political level, to take full and direct responsibility for the co-ordination of all aspects of the domestic implementation process.

Paragraph 213 of the report states: “We, the Assembly, as a statutory organ of the Council of Europe (and at the same time national parliamentarians), should not meekly accept the premise that the Committee of Ministers has ‘exclusive jurisdiction’ on this subject. When the Court judgments are not fully and rapidly executed, we – parliamentarians – also have a duty to help supervise the execution of the Court’s judgments. The credibility and viability of our European system of human rights cannot be left solely in the hands of the executive organ of the Council of Europe (in effect, diplomatic representatives of governments). Closely tied to this is the idea which I mooted back in August 2009, to the effect that the Assembly ought to consider – in the future – suspending the voting rights of national delegations when their parliaments do not seriously exercise parliamentary control over the executive in cases of non-implementation of judgments of the European Court of Human Rights”.

Thank you for listening to me.

THE PRESIDENT – Thank you, Mr Pourgourides, for your experience and for your very important presentation. You have three and a half minutes remaining".

The vote was carried by a landslide majority:

"In favour 77
Against 8
Abstention 3".

Last Monday the Secretary General of the Council of Europe,Thorbjørn Jagland, stated in his speech:

"We have to stress the implementation of the rule of law in order also to once again highlight the interrelationship between rule of law and democratic and human rights principles. First of all, for a Council of Europe member state, the rule of law means full compliance with the European Convention of Human Rights other legally-binding instruments and of course the judgments of the European Court of Human Rights".

Provisional edition

Implementation of judgments of the European Court of Human Rights

Recommendation 1955 (2011)1

1. The Parliamentary Assembly, referring to its Resolution 1787 (2011) on the implementation of judgments of the European Court of Human Rights, strongly urges the Committee of Ministers to increase, by all available means, its effectiveness as the statutory guarantor of the implementation of the Court's judgments, and to that effect recommends that it:

1.1. ensure special priority treatment for the most important problems in the implementation of the Court’s judgments, notably the systemic problems identified in Resolution 1787 (2011), and regularly inform the Assembly of the results achieved towards resolving these problems;

1.2. induce States Parties to the European Convention on Human Rights with structural problems to provide comprehensive strategies which outline a clear and detailed approach to execute Court judgments, and ensure effective assessment of the adequacy of measures taken through such action plans;

1.3. ensure that governments improve and, where necessary, set up domestic mechanisms and procedures to secure timely and effective implementation of the Court's judgments through action of all national actors concerned, co-ordinated at the highest political level;

1.4. increase pressure and take firmer measures in cases of dilatory and continuous non-compliance with the Court’s judgments by states parties, and to work more closely on this subject with the Assembly;

1.5. ensure, in cases of persistent and flagrant disregard of the Court's case law, that recourse be made to Article 8 of the Council of Europe's Statute of 1949 (suspension/withdrawal from the Organisation).

1 Assembly debate on 26 January 2011 (6th Sitting) (see Doc. 12455, report of the Committee on Legal Affairs and Human Rights, rapporteur: Mr Pourgourides). Text adopted by the Assembly on 26 January 2011 (6th Sitting).

Source: PACE website.

The UK will appear before the Committee of Ministers responsible for supervising execution of the Court's judgments on 8 March 2011. I urge the CoM to stand up to the bullying tactics of the UK and confront the bully with the serious threat to invoke Article 8 of the Treaty of London (1949)(The Statute of the Council of Europe).

Article 8

Any member of the Council of Europe which has seriously violated Article 3 may be suspended from its rights of representation and requested by the Committee of Ministers to withdraw under Article 7. If such member does not comply with this request, the Committee may decide that it has ceased to be a member of the Council as from such date as the Committee may determine.

It is clear from Greens and MT v UK that the UK has failed to execute the Court's judgment in Hirst v UK (No2), therefore it is contended that it would be a pointless exercise and waste of time to send Hirst v UK (No2) back to the Court under:

Rule 11 *

Infringement Proceedings

1. When, in accordance with Article 46, paragraph 4, of the Convention, the Committee of Ministers considers that a High Contracting Party refuses to abide by a final judgment in a case to which it is party, it may, after serving formal notice on that Party and by decision adopted by a majority vote of two thirds of the representatives entitled to sit on the Committee, refer to the Court the question whether that Party has failed to fulfil its obligation.

2. Infringement proceedings should be brought only in exceptional circumstances. They shall not be initiated unless formal notice of the Committee’s intention to bring such proceedings has been given to the High Contracting Party concerned. Such formal notice shall be given ultimately six months before the lodging of proceedings, unless the Committee decides otherwise, and shall take the form of an interim resolution. This resolution shall be adopted by a majority vote of two-thirds of the representatives entitled to sit on the Committee.

3. The referral decision of the matter to the Court shall take the form of an interim resolution. It shall be reasoned and concisely reflect the views of the High Contracting Party concerned.

4. The Committee of Ministers shall be represented before the Court by its Chair unless the Committee decides upon another form of representation. This decision shall be taken by a two-thirds majority of the representatives casting a vote and a majority of the representatives entitled to sit on the Committee

Either the UK climbs into the we're all in this together boat of the Council of Europe, or the Council of Europe must cut the UK adrift to save the Council of Europe being dragged under by the UK. The Interlaken Conference established that Member States which ignored the Court's authority were in danger of killing off the Council of Europe. If the UK is not prepared to honour the 3 objectives of the Council of Europe which are; Human Rights, Democracy and Rule of Law then the UK has no place being in the Council of Europe because it is a rogue or pariah state, where totalitarianism or authoritarinism and not democracy rules.


James Higham said...

Invited to leave the whole bloody EU. This is as good a way as any.

jailhouselawyer said...

James: Be careful what you wish for!