Site Meter

Friday, May 11, 2012

Has the ECtHR violated Abu Qatada's human rights by not abiding by the ECHR?

Has the ECtHR violated Abu Qatada's human rights by not abiding by the ECHR?

If the European Court of Human Rights (ECtHR) does not abide by the European Convention on Human Rights (ECHR) itself, why should Member States of the Council of Europe abide by it? I am referring to the application by Abu Qatada seeking to appeal to the Grand Chamber. There are two issues; did he lodge the application in time?; and did he have an arguable case for appeal? The ECtHR answered the former in the affirmative, causing the Home Secretary, Theresa May, to be embarrassed politically because she had stated publicly that he was out of time. However, we are none the wiser as to the latter, more important, point simply because the ECtHR decided he did not but provided no reasons for the decision. The ECHR states:

"Article 45 – Reasons for judgments and decisions

Reasons shall be given for judgments as well as for decisions declaring applications admissible or inadmissible".

So, why didn't the ECtHR give Abu Qatada reasons for dismissing his application? It maybe just that the ECtHR simply applied Rule 73(2) of the Court's rules:

“Reasons need not be given for a refusal of the request”.

This appears to be contrary to the ECHR. Moreover, the language of the ECHR suggests that it is mandatory to give reasons, whereas the ECtHR rule appears to allow for discretion whether to give reasons.

For once I agree with what Dominic Raab MP has to say:

“Yesterday’s hearing was held in secrecy. The verdict was not written down. Nor did they give reasons. It was just announced by a court lackey. Imagine the uproar if a British court behaved in such an arrogant way” (Daily Express).

The first law text book I read, quite sometime before I read the ECHR, is Foulkes' Administrative Law. Chapter 9 is headed The duty to give reasons and the first section is headed by the question Should reasons be given?

“It is, in general, desirable that reasons should be given for decisions. 'The giving of reasons is one of fundamentals of good administration' (per Lord Denning in Breen v Amalgamated Engineering Union [1971])”.

In the 1932 Report of the Committee on Ministers Powers, relating to decisions by Ministers and tribunals, under the heading of 'natural justice' it states:

“Any party affected by a decision should be informed of the reasons on which the decision is based...Such a decision should be in the form of a reasoned document available to the parties affected”.

In the Franks Report of 1957 it states:

“It is a fundamental requirement of fair play that the parties concerned in one of these procedures should know at the end of the day why the particular decision has been taken. Where no reasons are given the individual may be forgiven for concluding that he has been the victim of arbitrary decision. The giving of full reasons is also important to enable those concerned to satisfy themselves that the prescribed procedure has been followed and to decide whether they wish to challenge the Minister's decision in the courts or elsewhere. Moreover as we have already said in relation to tribunal decisions a decision is apt to be better if the reasons for it have to be set out in writing because the reasons are then more likely to have been properly thought out”.

There may be a more sinister motive for the ECtHR not giving reasons, that is, it cannot justify them. For example, the ECtHR may well have succumbed to the corrupting influence of the human rights violating UK and rather than risk another confrontation it has meekly decided to appease the UK. The ECtHR already knows that in Jordan torture is widespread. The UK has also been complicit in torture or at least turned a blind eye to its use during the flights of 'extra-ordinary rendition'. Therefore any assurances by Jordan need to be treated with the greatest suspicion. Given that the UK is seeking to abolish the Human Rights Act, and hold secret trials so the activities by MI5 and MI6 in relation to torture do not become public, means that any assurances given by the UK should also come under very close scrutiny. For example, the assurances given by the UK in the Interlaken, Izmir and Brighton Declarations are not worth the paper they are written on. Notice the quick speed by which the UK is seeking to deport Abu Qatada, and the slow speed the UK is taking to fully comply with the Prisoners Votes Case, Hirst v UK (No2)? If the ECtHR won't help the vulnerable in the UK then the European Dream has turned into a nightmare.


Tim said...

I completely agree - courts must give properly reasoned decisions. It would not surprise me if this was yet another example of bending to the 'undue influence' of the Nazi UK.

Jerry said...

I absolutely acknowledge, legal courts must give effectively reasoned choices. It would not shock me if this was yet another example of twisting to the 'undue influence' of the UK.

Tim said...

Has nobody learned anything from the murky Johann Hari affair?