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Thursday, February 16, 2012

Jagland: Human rights are not “getting out of hand”

Jagland: Human rights are not “getting out of hand”

In an article published by the Neue Zürcher Zeitung newspaper, Thorbjørn Jagland has dismissed claims of an excessive interpretation of human rights by the Strasbourg court.

The Secretary General was responding to an article earlier this month in the Swiss daily, which raised concerns about the functioning of the European Court of Human Rights.

Yesterday, the Secretary General took on British court critics in a letter to the editor of the Financial Times newspaper.

Here is an translation of the original Swiss newspaper’s German language article.

Is the European Court of Human Rights facing impending collapse of its own making because its interpretation of human rights is getting out of hand, as has been claimed in an article in these columns? No, the Court is seeking pragmatic solutions and strengthening the principle of subsidiarity. By Thorbjørn Jagland

With over 150 000 applications pending, the European Court of Human Rights is facing huge challenges. The cause of the backlog of cases does not, however, lie in the “interpretation of human rights getting out of hand”, as the authors of an article under that heading in the NZZ (2 February 2012) suggest. Rather, the main reasons include the accession of new member states, some with great needs for reform of their justice and prison systems, and the often sluggish execution of the Court’s judgments in many countries.

Not a “court of fourth instance”

The authors are quite right to say that the European Court of Human Rights is not a “court of fourth instance”. It was never meant to be. Instead, under the Convention on Human Rights, the prime responsibility for remedying human rights violations lies with the member states. The reform of the Court is aimed at further strengthening this principle so that many cases never actually end up in Strasbourg. The authors are also right that the Court has to deal with a high proportion of repetitive cases involving issues where it has already found breaches of the Convention. Around 30 000 such cases are currently pending.

The pilot judgment procedure referred to by the authors addresses this situation: the Court indicates how governments can resolve the relevant violations themselves – so that it does not have to deal with every individual case. Similar applications can be adjourned until the pilot judgments are implemented. Many applicants now obtain redress more speedily because remedies are found at national level. In my view, the procedure is therefore definitely not “counterproductive”: on the contrary, it is pragmatic and strengthens the principle of subsidiarity.

It is also true that the Court dismisses the majority of applications as inadmissible. The single-judge procedure introduced in 2010 to simplify the processing of manifestly inadmissible cases is beginning to produce results. For instance, the total number of pending cases has now fallen back below the record of approximately 160 000 reached in September 2011.

I cannot therefore agree with the claim that the interpretation of human rights by the Court is “getting out of hand”. First of all, the authors refer to three cases which at first sight seem marginal but do actually throw up questions of principle when looked at more closely. The main issue in the case of Micaleff v. Malta was not the annoyance caused by neighbours hanging up washing but whether the court of appeal which had ruled on the case was independent and impartial, given the family ties between the presiding judge and the lawyer for the other party. In the case of Schuler-Zgraggen v. Switzerland, in turn, the key issue was procedural equality between women and men in the granting of an invalidity pension, which is surely a human rights issue. And the case of Schüth v. Germany concerned individual rights, in particular the right to respect for private life.

Precisely in the area of the implementation of judgments by the highest domestic courts, there are examples which show that dialogue with Strasbourg is proving very effective. For instance, in its benchmark judgment on preventive custody in 2011, the German Federal Constitutional Court largely followed the arguments of the Strasbourg Court. Moreover, the example of Switzerland shows that there can be no question of the interpretation of human rights “getting out of hand” in cases involving long-standing democracies: in 2011, decisions were taken on 141 cases brought against Switzerland, but only 11 judgments were delivered, with violations of the Convention being found in a grand total of three cases.

Frivolous applications rejected

Since the 2010 reform, the Court has been able to reject cases if the applicants have not suffered a significant disadvantage. Further proposals are being discussed with a view to dismissing frivolous applications quickly. The reform is aimed at setting priorities even more effectively so that precedence is given to cases involving serious human rights violations. In its decisions, the Court continues to defend values and principles that are fundamental to democracy and the rule of law throughout our continent, including the right to life, the prohibition of torture and freedom of expression. It is only natural that the decisions of an international court are not always welcomed everywhere.

A current example here is the planned extradition of the radical cleric, Abu Qatada, to Jordan by the United Kingdom. The Strasbourg Court ruled against his extradition to Jordan because it could not be guaranteed that all the evidence that would be used against Qatada in proceedings there had been obtained lawfully. The ruling was strongly criticised by some British MPs and media outlets, in my opinion wrongly. For the Strasbourg ruling also means that if Jordan gives the United Kingdom formal assurances both that the accused will not come to harm and also that the proceedings will be conducted in accordance with the rule of law, extradition would be lawful. The United Kingdom has announced that it will execute the ruling and is currently negotiating with Jordan about a corresponding agreement.

Even though the execution of Strasbourg judgments is sometimes sluggish and occasionally lacking in transparency, no state has ever refused to accept a judgment by the Court. The reform of the European Court of Human Rights and the strengthening of the principle of subsidiarity are vital if democracy, the rule of law and human rights are to be implemented even more effectively throughout Europe in future.

1 comment:

James Higham said...

This is very dangerous. The debate will be fomented until the consensus is that they be pulled back. Start of the despotism.