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The purpose of litigation at the European Court of Human Rights (ECtHR), is to ‘examine alleged violations and ensure that States Parties comply with their obligations under the Convention,’ providing individual applicants with effective remedies and just satisfaction under Articles 13 and 41 of the European Convention on Human Rights (ECHR). The wider objective is to protect and embed locally the three CoE foundation stones; liberal pluralist democracy, human rights and the rule of law – to effect structural and institutional change and create a ‘common democratic and legal area throughout the whole of the continent.’
Yet comprised of 47 member states and 811 million citizens, the CoE inhabits a fundamentally different territorial scope to that in May 1949. Originally a ‘social and ideological counterpart to NATO,’ it has undergone a central shift in its core ‘modus operandi’ from an interstate process of ‘protecting the democratic identity of Member States through the medium of human rights’ to its emerging ‘front line’ role as an arbiter of liberal human rights through the medium of individual petition. ‘Considerable problems that threaten to undermine what has been achieved over the fifty years during which the Convention has operated’ lead one to ask whether there is any point taking such cases at all.
This brief essay is split in two sections. Section one analyses the tripartite problem outlined within PACE Resolution 1226 (2000); the inadequate clarity and ‘casuistical’ nature of Court judgements, characterised by ‘doctrinal uncertainty’ in the margin of appreciation; the systemic non-implementation of judgments and failure to employ ‘necessary reforms that would avoid further violations,’ with a case study of the Russian Federation; and a critique of the ‘insufficient rigour’ and failure of the Committee of Ministers (CoM) to ‘exert enough pressure when supervising the execution of judgments.’
Section two, explores the central debate between individual and constitutional justice; and the potential impact Protocol 14 may have on the ‘asphyxiating’6] Court and CoM. Finally I assess the accomplishments of Strasbourg litigation before returning positively to our initial question with a passionate case for individual petition against the backdrop of a tide of human rights abuse in post-communist accession Europe; the utility of the Interlaken proposals; and preservation of the Human Rights Act 1998.
Section One: Problems
Theoretical Fault Lines: An ‘Unprincipled’ Margin
The extent to which there is any point to Strasbourg litigation is determined in the first instance by the extent to which the Court can effectively balance its role as a supranational judicial guarantor of liberal individualist human rights, within the CoE framework of upholding and deferring to the thread of pluralist democracy; an intrinsically collective ideal. For McHarg, Strasbourg jurisprudence is characterised by the absence of a conceptual framework integrating a preferable rights model with a ‘defensible conception of the public interest.’ Greer agrees, highlighting unresolved ‘normative’, ‘institutional’, and ‘adjudicative’ questions, and the failure of the Court to deliver a concrete body of jurisprudence and ‘constitutional authority.’ The result – ‘formulaic, “thin” decisions and un-ordered interpretive principles,’ at best devaluing Convention rights and at worst denying them.
This dichotomy is played out through the margin of appreciation doctrine; the ‘latitude’ given to States Parties based on their ‘better position’ with the facts on the ground. ECHR protections are not absolute, but relative; they are subject to exceptions permitting ‘infringement of the fundamental right or freedom’, specifically defined within paragraph two of Articles 8-11; and under Article 15 (A15) can be ‘erased altogether to the extent strictly required by the exigencies of the situation’. These ‘express definitional restrictions’ remind us of Bentham; ‘this, we see, is saying nothing: it leaves the law just as free and unfettered as it found it’. Strict judicial interpretation and objectivity are critical to the defence of Convention rights in the context of these exceptions.
The flexibility of the margin is for Waldock advantageous to the evolutive nature of Strasbourg Jurisprudence, and for Dr Arai-Takahashi ‘value pluralism being the fundamental prerequisite and virtue of a liberal democratic society’, a set of standardised rules would devalue ‘regional legitimacy and richness of cultural values and traditions among member states.’ The CoE is clear in its aim ‘to promote awareness and encourage the development of Europe’s cultural identity and diversity.’That Convention rights are relative is a moot point for realist theorists, since States Parties ‘would never have been willing to be bound by the Convention’ in the first place without safeguarding their democratic sovereignty.
Yet McHarg notes the ‘paradox in a legal scheme which is supposed to protect the individual against the collective, sanctioning limitations to rights on collective grounds’. How far in practice does the ECtHR go towards fulfilling the supervisory function it refers to in Handyside v UK (1976)? To what extent does Ost’s assertion that ‘there is never an unchallengeable margin’ hold true? McHarg talks of ‘doctrinal uncertainty’ while Jones points out that ‘even the Court’s president has acknowledged the justification “to some extent” of criticism of the doctrine’s “lack of precision” and “use without principled standards.”‘ Fiercer critics lambast the ‘abdication of the Court’s enforcement responsibility.’ Dembour questions if Convention rights are ‘so full of contradictions that they are useless?’
It is intrinsic to the dichotomy between international individual rights protections and the national collective interest that the margin of appreciation ‘occupies a middle position’ between subjectivity and objectivity; between a ‘burden of proof firmly on the government’ on one hand and on the other of wide deference to it. In Lawless v. Ireland (1961), Waldock asserted:
‘a Government’s discharge of responsibilities is a problem of appreciating complex factors and balancing conflicting considerations of the public interest; once the Court is satisfied that the appreciation is on the margin the interest the public itself has in effective Government and maintenance of order justifies and requires a decision in favour of the legality of the Governments appreciation’;
Simpson saw this reflecting ‘an implicit determination to back the authorities.’ Dembour and Jones’ respective assessments of further A15 derogations demonstrate consistently deferential applications of the margin, and reluctance to objectively scrutinise the existence of an emergency or of the measures implemented to tackle it. In Greece v. United Kingdom (1958), the Commission argued that ‘the assessment whether or not a public danger threatening the life of the nation existed is a question of appreciation’; determining the validity of the repressive measures employed, the UK government ‘enjoyed “a certain discretion.”‘ Such a position is clearly evident in Ireland v. United Kingdom (1978), confirmed in Brannigan v. McBride (1993), both concerning A15 derogations of Article 5 with regard to the detention of suspects in Ireland.
Several problems arise from the rationale employed in these cases. Dembour draws our attention to the absence of a ‘factually and theoretically strict analysis… impossible to justify in human rights terms.’ Indeed, the inevitability of a wide margin in the context of A15 derogations, led Judge Martens to assert that ‘there is no justification for leaving a wide margin because the Court, being the “last resort” protector, is called upon to strictly scrutinise every derogation.’ Jones contends a state of emergency objectively determinable – if a national government has evidence of such a situation, he asks why this is not capable of assessment by an international Court?
Implementation: A ‘pessimistic view is well founded’
Strasbourg jurisprudence has demonstrated the capability of the Court to robustly uphold Convention rights from ‘major shows of arbitrariness’, ensuring a ‘degree of justice for applicants and families, international attention,’ accountability in relation to serious violations, and domestic legislative change. Notwithstanding the significance of such supranational decisions, analysis of the pending caseload (some 116,800 cases in October 2009), reveals a Court facing unsustainable pressure from ‘repetitive cases concerned with structural problems in civil, criminal and administrative proceedings; serious pervasive human rights abuses;’ and ‘unacceptable delays in the implementation of judgements.’ Implementation remains the ‘Achilles’ heel’ of the Convention system, A brief case study of Russia underscores the gravity of the situation.
It is the ‘irony of history’ that the Russian Federation now occupies a key position in the very organisation established to provide European unity and security in the face of Soviet communism. Comprising 27.3% (31,850) of all pending applications at the ECtHR, the Medvedev Government faces protracted challenges in its attempts to ‘develop civil and economic freedoms ending the legal nihilism that is seriously hindering modern development.’ I write following the death in Butyrka prison of Sergei Magnitsky, an anti-corruption lawyer acting for HSBC / Hermitage Capital in the $230m tax fraud case. This case and the ongoing second Khordokovsky trial are emblematic of ‘structural defects in the Russian criminal justice system and procuratura that have lead to the accusation and incarceration of many innocent persons.’ Other important cases demonstrate the gravity of the situation, including Gusinskiy v Russia, Ilascu and Others v Moldova and Russia, the first six Chechen cases, Shamayev and 12 others v Russia and Georgia and Aleksanyan v Russia.
Leutheusser-Schnarrenberger’s recent PACE report on ‘politically motivated abuses of the criminal justice system’ is a powerful indictment of the failure of the Russian Federation to entrench a meaningful institutional framework that engages with the rule of law. The report highlights a multi-layered problematic of ‘political and hierarchical vectors of pressure’ on judges to secure convictions; retrogressive legislative proposals that call into questions Putin’s implementation of jury trial; the endemic failure to safeguard defence lawyers from coercion and realise a truly independent objective procedure for their selection and quality; serious investigative flaws; and unremitting legal nihilism.
The systemic pervasive abuse of human rights in Chechnya represents perhaps the most serious Convention violations. It is here that PACE and the CoM face their most urgent challenges. Bowring draws our attention to the recent memorandum on the North Caucasus, exposing ‘violations by security forces, including enforced disappearances, torture, extrajudicial executions; and impunity for these violations of international law;’ while Leach candidly outlines the scope and extent of the crisis; ‘the first Chechen cases demonstrate the real limitations of the individual rights mechanism of the European Court as a forum for resolving wide scale, systemic and serious human rights violations.’
In his recent visit to Birkbeck College, Leach vividly underscored the paradoxical and ‘lamentable’ and legally unsatisfactory problem of non-disclosure (ND) ‘of domestic case files, in spite of repeated requests made by the Court.’ 33 of the 37 Chechen judgments have been characterised by this problem, notably Basayeva and Others v. Russia and Bitayeva and X v. Russia and Isayeva, Yusopova and Bazayeva v. Russia. The Court in Bazorkina v. Russia pointed out that ‘documents of the criminal investigation are fundamental to the establishment of the facts and their absence may prejudice the Court’s proper examination of the compliant both at the admissibility and merits stage.’ Chechnya aside, Leach identifies a further threefold problem of implementation vis-à-vis Russia, confirmed in Pourgourides 2008 CLAHR Report; ‘deficient judicial review over pre-trial detention, resulting in excessive periods of detention and overcrowding; the ‘Nadzor procedure – supervisory review of final judicial decisions’; and the urgent complex problem of ‘the non-enforcement of domestic judicial decisions against the state’
In the context of these problems, can there be any hope for optimism? Bowring draws our attention to the often ignored historical context which has characterised Russia as part of a ‘long and complex relationship with human rights – and with the rule of law and judicial independence, which are its essential underpinning.’ It is in this context he argues that the ECHR, rather than an ‘alien implant…is to a large extent a restoration of the reforms of the 1860s.’ Ghorkova contends ‘current legal reforms and the creation of the rule of law and a civil society with the appropriate structures and mechanisms to protect human rights and fundamental freedoms as well as the participation in the activities of the Council of Europe, are wholly in line with Russian Interests.’
Behind Russia’s posturing is, according to Bowring a serious engagement with international law – ‘its commitment in terms of diplomatic and financial resources is substantial; and compliance with its obligations – indeed, in 2007 the ECtHR heard 192 complaints against Russia. Russia won just 6 and paid in full the orders for compensation in every case.’ In addition, in a wider sense, Leach points out the ‘pre-eminent position of the CoE vis-à-vis Russia in view of the inability of the United Nations effectively to sanction Russia over human rights abuses, and as a result of Russian suspicion about the motives and aims of the OSCE.’
Entrenching the rule of law in Russia will be a slow process. However, the mechanisms for its success are at least in legislative terms visible. It is my contention that through the work of the CoE and ECtHR, the Russian Federation will make a true engagement with human rights. As we shall explore below, the right of individual petition is an essential part of this process. It is easy to dismiss the Court as having failed in its mission when confronted by the ongoing abuses of rights in Russia. Yet this depends on how one defines success.
From Systemic Individual Justice to an ‘Abstract Constitutional identity’
The critical mass of applications lodged coupled with systemic non implementation of Court judgements has led Wildhaber to a paradoxical observation; that the ‘quantum leap’ in recognising the ‘individual as a subject of international law,’ has reduced the capability of the ECtHR to ensure the safeguarding of the individual from violations of Convention rights. That the Court’s well noted ‘asphyxiation’ is intrinsically related to the right of individual recourse is clear. De Vries’ April 2009 CLAHR Report lays bare the unsustainable increase in applications, principally in the wake of post-communist accession, underscoring the urgent need to tackle ‘obviously inadmissible cases; repetitive cases that concern established systemic defects; and to concentrate on the most important cases.’
The inferences drawn from these stark figures have been decisive shaping proposals to ameliorate the crisis; but moreover reveal the wider ‘battle for the soul of the ECHR’ borne out of competing understandings of the Court’s function. The crippling application rate is for Greer emblematic of the intrinsic failure of the CoE structure to ‘systematically deliver individual justice;’ intrinsic since individual recourse is a ‘flawed paradigm.’
Foremost, the Convention system was, according to Greer, simply not designed as a conduit for the fulfilment of individual human rights through the medium of individual petition, but rather the ‘protection of democratic identity through the medium of human rights.’ Its contemporary utility is thus encouraging European public organisational, legal and ideological parity though ‘articulation of an abstract constitutional model member states should then apply.’ Greer goes on to cast doubt over the possibility of the ability of the Convention system to deliver systematic justice to every applicant, concluding that given this ‘individual justice becomes arbitrary.’ Finally, he argues that where cases are adjudicated in favour of the applicant, they are often ‘hollow victories’ marked by ‘symbolic rather than instrumental’ awards of just satisfaction, but beyond that little else.
Consequentially he argues the urgent need to ‘that the cases the Court does select for adjudication represent the most serious Convention compliance problems in Europe, and that they are settled with maximum authority and impact.’ Wildhaber agrees, the need for the Court to ‘concentrate its efforts on decisions of principle However, for Sir Stephen Sedley, ‘the proposal to introduce a discretion to refuse to entertain cases which are legally admissible is a counsel of despair; to do this would be to abandon the Court’s crucial role, which is not that of a Supreme Court, but that of a tribunal of last resort for citizens of non-compliant states.’ This, he argues may be ‘attractive to judges but is less attractive to citizens of sates which persistently or systematically fail to observe the convention.’ And this is less attractive still in light of the concern that ‘amendments to the admissibility criteria will restrict the right of individuals to seek redress at the European Court, without adequately tackling the problem of the increasing number of Convention violations across Europe.’
Conclusion: Why Bother?
Cameron’s renewed pledge to repatriate the Human Rights Act (1998) (HRA) ‘with a British bill of rights – to better tailor, but also strengthen, the protection of our core rights’ may soon be a reality. DPP Kier Starmer has made an impassioned defence of the HRA and broad impact of Convention jurisprudence on the CPS: ‘the common law sometimes struggles with a coherent approach to human rights; the Human Rights Act is an essential component of the framework within which everyone’s rights may be protected.’
The ECHR has shored up the right to a fair trial in the UK, the CPS underscoring the relationship between Article 6 and its work securing the ‘fairness of trial proceedings in criminal proceedings.’ It was central to the development of PACE (1984), ensuring formality of interrogation and ending miscarriages of justice through uncorroborated evidence. Regina v Fulling (1987) demonstrates the efficacy of PACE safeguards against evidence collected under oppression, contrary to the ECHR; ‘the meaning of the term (oppression) reflects the wording of Article 3.’
Starmer underscores the ‘positive obligation on the state to take reasonable steps to protect potential victims from a real and immediate risk to their lives from criminal activity. When they (victims) unfortunately acquire that status, they have the right to an effective investigation. These are rights that spring from the Human Rights Act, not rights that conflict with it. Critically, they are now enforceable in court’. Through the application of the ECHR, challenges may be made under Section 78 PACE as to the admissibility of the evidence obtained;’ and ‘victims have the right to challenge decisions not to prosecute, particularly where they can point to poor decision-making or inappropriate consideration of irrelevant factors in that process.’
The HRA is central to legal certainty and transparency, and development of a ‘modern public prosecution service prosecuting firmly and fairly, in an open, transparent and independent way; supporting victims and witnesses by enabling, encouraging and supporting their effective participation at all stages in the criminal justice process; and a commitment to respect and protect the human rights of all those affected by our decisions, whether they be victims, witnesses, suspects or defendants.’
Klug demonstrates the tangible ‘protection of freedom under the Human Rights Act’ in sixteen important areas; freedom of association; private and family life; freedom of expression and the media; terrorism; torture; jurisdiction in Iraq; protecting the right to life; investigations into deaths; marriage; asylum seekers; disability; mental health; restraint of young people in secure training centres; sexual orientation; race; and gender. A few examples of Case law in these areas make a powerful case for Strasbourg litigation.
A and others v UK (2009) held that the incarceration of ‘suspected international terrorists under the Anti-Terrorism, Crime and Security Act 2001 without charge or trial was disproportionate and discriminated on the ground of nationality or immigration status.’ In R (H) v Mental Health Review Tribunal, the rights of those detained under the Mental Health Act (1983) were bolstered by the shifting burden of proof for continued detention onto the health authority. Prisoners’ rights have been enhanced, including the granting of voting rights in Goldberg and Others v. Minister of Prisons (1979); the freedom from censorship of correspondence, in Silver and Others v. UK (1980); and ‘changes to cell policies following the racist murder of a prisoner’ in R (Amin) v SSHD (2003). R (Baiai) v SSHD (2008) was important ensuring the sacrosanct right to marry under Article 12 was free from discrimination on the grounds of immigration status.
Leach, in his recent visit to Birkbeck College drew attention to the heart-rending fact finding missions in Anchora in the early 1990s, highlighting serious pervasive violations of the Kurdish minority in South East Turkey. The deplorable case of Aydin v. Turkey (2005) is ’emblematic of the effect of individual petition’ and its ‘fundamental importance to the effective protection of the substantive rights and freedoms provided for in the Convention.’ It is perhaps through this significant programme of litigation, setting key standards in violations of Articles 2, 3 and 5, and delivering access to justice to those most vulnerable and marginalised members of society that the true point of litigation in Strasbourg is made.
For those in the North Caucuses, 2009 has been a frightful year, symbolised by the death in Grozny in July of Natalia Estimirova, followed a month later by Zarema Sadulayeva and Alik Dzhabrailov. Through the delivery of constitutional justice those most vulnerable people whose voices so desperately need to be heard will be cut off from the ‘most advanced international system for protecting civil and political liberties.’ Barkhuysen and Emmerick contend that the Court’s constitutional legitimacy and moral authority are derived through providing ‘legal protection to individuals by breaking the State Party’s sovereignty.’ This ‘unique achievement,’ unprecedented in international must be defended. It is here that the point of Strasbourg litigation is to be found.
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