By James A. Goldston and Yonko Grozev
SOFIA – At a time when the ongoing European debt crisis is fracturing public faith in the continent’s political and economic institutions, one would expect Europe’s leaders to strengthen as many unifying symbols as they can. Instead, they have allowed one of the jewels of post-World War II European integration – the European Court of Human Rights (ECHR) – to come under threat as well.
Unlike the Brussels-based European Union, long beleaguered by its democratic deficit, the Strasbourg-based ECHR is, if anything, too well loved. In 2011, more than 60,000 people sought its help – far more than can expect a reasoned decision. (By contrast, the United States Supreme Court receives roughly 10,000 petitions a year.)
To save the ECHR from this crushing burden, some member states have proposed changes that could weaken it, even if unintentionally. Those of us who passionately believe in the Court and its achievements must speak out now to persuade the protagonists of misguided reforms to reverse course. Instead, the ECHR’s 47 member states – with 800 million people – need to shoulder more responsibility to make the existing system work.
Launched in the aftermath of the Holocaust, the ECHR has become a potent symbol of Europe’s commitment to government by law, not force, by vindicating the rights to life, humane treatment, free expression, and access to a lawyer. For example, the Court ruled that the infamous “five techniques” – an early form of “enhanced interrogation” employed by the British in Northern Ireland in the 1970’s – constituted inhuman treatment, and condemned racial segregation of Roma children in Czech schools.
Because of their quality, the ECHR’s opinions have a profound impact beyond Europe. When Strasbourg speaks, the world’s judges and lawyers listen. Even the US Supreme Court cited its reasoning when striking down anti-homosexuality laws in Texas in 2003.
Nonetheless, the ECHR’s future is in serious jeopardy. As the only impartial check on abuse of power in some countries, the Court is swamped with complaints – more than 60% come from Russia, Turkey, Italy, Romania, and Ukraine.
Some argue that the answer to the flood of cases is to limit the Court’s powers. But that approach seems unwise.
British Prime Minister David Cameron, for example, has told the Parliamentary Assembly of the Council of Europe that national decisions “should be treated with respect” – code for less judicial oversight. Similarly, other senior officials have called for new restrictions on cases that the ECHR may hear, including deferral to those national courts which have supposedly taken full account of European human-rights law.
In the United Kingdom, the Court’s 2005 ruling against a blanket withdrawal of voting rights for prisoners, on the grounds that disenfranchisement can be disproportionate to the offense, provoked official wrath. And, earlier this year, the Cameron government was incensed by a decision that barred the deportation of an Islamic preacher to Jordan on terrorism charges, because his trial there might be tainted by evidence obtained under torture.
Even under new rules, such cases might still come before the Court, because they raise fundamental questions that require interpretation of the European Convention. Indeed, there is no evidence that proposed Convention amendments aimed at limiting the court’s authority would reduce its caseload. But they send a dangerous message that some governments should be exempt from standards that apply to everyone else.
Reducing the flow of complaints depends, above all, on governments doing more to entrench the rule of law at home – even if they must be pushed and shamed into it. Authoritative and binding Court judgments, many of which require governments to compensate victims, are among the most effective tools for constructive pressure – and may well provide better value in promoting the rule of law than the millions of euros invested annually in technical assistance and training in the erring states.
In addition, legislative reforms enacted in 2010 must be given time and resources to work. All agree that the ECHR is making progress in reducing the backlog of pending applications.
More can be done. The Court can increase the number of “pilot judgments” concerning systemic harm, prescribe more specific measures of redress, and stiffen monetary awards where repeated violations reflect persistent failure to heed prior judgments. The Committee of Ministers, which oversees implementation, should issue public sanctions where appropriate. And states must take more seriously their obligations to remedy violations before cases reach Strasbourg.
To be sure, no court gets every decision right, or pleases all parties. But even democratic governments sometimes make big mistakes. Some political leaders seem too preoccupied with their own disagreements with individual decisions to see the larger interest in preserving a European institution that commands widespread admiration.
The next two months will be telling. The UK, which currently holds the rotating Council of Europe Chair, has announced that it will seek adoption by April of a ministerial declaration on Court reform. Though a draft is now circulating in national capitals, the role of civil-society groups remains unclear. It is crucial that those who have the greatest stake in the ECHR – Europe’s people – participate meaningfully in these discussions.
In a time of financial constraint, the Court’s judges issue more than 1,000 rulings annually, many of great importance, for less than the cost of the EU’s publications budget. A half-century after its birth, the ECHR provides an invaluable public good, not just for Europeans, but for all people concerned with human rights anywhere. In the coming weeks, Europe’s governments will be measured by their commitment to the preservation of this vital global resource.
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